I am trying to ascertain the difference between Deputy Jim O'Keeffe's first and second amendments. Perhaps he will clarify this matter.
Criminal Justice Bill 2004: Committee Stage (Resumed).
Amendment No. 36c is related. We will suspend the meeting while a copy of that amendment is procured.
I indicated yesterday that I wanted to study the amendment tabled by Deputy Jim O'Keeffe. I recognised the number of instances his amendment includes references similar to the definition of a premises in a recent statute. It was to extend the concept of premises to include vehicles, planes and the like that the draftsman made particular provision of the kind in question.
I then reconsidered the Criminal Justice (Miscellaneous Provisions) Act 1997 which provides for a search warrant in respect of a place. The definition of "place" in the Act includes a "dwelling". Having examined the 1997 Act, I looked again at section 4 of the Bill, which is what we are concerned with here and which provides for the preservation of crime scenes. In section 4(4), it is quite clear that if a place is a crime scene, a vehicle such as a hovercraft or plane which is in the middle of it cannot be interfered with or removed if directions are given.
Section 4(4)(g) prevents a person from removing anything which is or may be evidence or otherwise interfering with a crime scene or anything at the scene. If a murder has taken place on a bus, caravan or helicopter and the Garda has designated that a crime scene, it is comprehended in the concept of “place” and cannot be interfered with. I am happier with my own definition than Deputy Jim O’Keeffe’s which sets out an artificial extension of the term “premises” and gives it an unnatural meaning which includes vehicles.
One would not typically refer to a premises as including a car or a hovercraft. The draftsman and I are happier with the word "place" as originally put forward. While I am nevertheless grateful to the Deputy for raising the matter, it is clear from the context in which the term "place" is used that a crime scene to be preserved may include a ship, plane, caravan or bus.
If the Minister is happy with the definition, I am happy. The advice I received suggested it would be helpful if "place" were defined with regard to other statutory definitions of "place" to include vehicles, vessels, aircraft and methods of transportation generally. If the Minister is satisfied the Bill, as drafted, is watertight, that is fine. I will withdraw the proposal and if it proves necessary, the matter can be reconsidered on Report Stage.
All the Minister has said is that "place" includes a dwelling.
We wanted the provision to be clear to avoid it being suggested that a constitutional construction of "place" should exclude a dwelling. There are constitutional protections for the dwelling of a citizen which is to be inviolable save in accordance with law. We wished to make it clear that the mere fact that a crime scene is a person's dwelling will not prevent the Garda from preserving it and using the powers set out in the Bill in relation to it. We do not want someone to be able to say that the absence of a specific mention in the legislation leads to a constitutional presumption that the provisions do not apply to dwellings.
I move amendment No. 9:
In page 6, lines 12 to 23, to delete subsection (3).
Amendment No. 9 is a drafting adjustment which proposes the deletion of section 2(3). The provision there set out is no longer necessary due to changes to the law which were made in sections 9 and 14 of the Interpretation Act 2005 which came into force on 1 January 2006.
The amendments to amendment No. 10 will be discussed with the main amendment.
I move amendment No. 10:
In page 6, before section 3, to insert the following new section:
"3.—(1) The Minister may make regulations prescribing any matter or thing which is referred to in this Act as prescribed or to be prescribed.
(2) Every regulation under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.".
Amendment No. 10 proposes the insertion of a new section to make provision for power to make regulations. It is a standard provision and provision is made at several points in the Bill for matters to be dealt with by regulations. This amendment relates to all instances in which regulations are proposed and simplifies the arrangements. It is proposed to have a simple regulation-making power and to insert it in the Bill at section 3.
I move amendment No. 1 to amendment No. 10:
In subsection (1), after "prescribed" where it secondly occurs to insert "in doing so the Minister shall have regard to the provisions contained inSchedule 1*, human rights standards and international evidence indicating the likely effectiveness and social and economic costs of all potential regulations.
This is simple enough. It is a binding requirement on the Minister that any regulations he considers producing under this Act are based on the best evidence and international practice and are human-rights compliant. The Minister has the duty if not necessarily to adopt, but at least to take on board comments from the Human Rights Commission. Of late he has taken some of those on board but not always. I do not say the Human Rights Commission is always correct but it has a job to do and has been good at raising issues and areas where it believes legislation breaches our requirements on protecting human rights and at trying to ensure we have the best possible legislation. The first amendment to amendment No. 10 does not take away from the Minister's intention but inserts legislation that any future Minister has that requirement.
My second amendment to amendment No. 10 is to ensure that resolutions are not just laid before the House but that we have greater democratic accountability because it requires the approval of both Houses of the Oireachtas. That allows for discussion. When a Minister puts down regulations he or she is usually assured the support of the Government parties and the outcome might be predetermined. However, this amendment allows the House to regularly debate these important regulations that would be laid down by the Minister on occasion, though hopefully not too often.
Perhaps when the Bill is initially enacted we will have a rush of regulation but thereafter it will settle down. This amendment will provide a mechanism to review the operations of this section. Given that such a vast range of areas are covered by this Bill, the finances required would need to be examined and we need to ensure all such expenditure and regulations comply with best possible practice.
Mine is a technical amendment. One of my advisers has been fine-tooth combing the Bill and suggested it is grammatically correct to express the new subsection (2) as proposed to be amended so that it would read "Every regulation under this section shall be laid before each House of the Oireachtas as soon as may be after it has been made". This seems to be the correct way to express the notion of laying it before the House after it has been made. I put it forward with a view to making the Bill as perfect as possible. If the Minister accepts it that is fine, if not I will not go to the wall on it.
I congratulate Deputy Jim O'Keeffe on his grammatical skills.
I cannot claim all the credit.
A great leap of faith.
We must build up the bonding.
We are not scattered and seeking partners from wherever. Is that not the case?
No, we are locked on.
Amendment No. 10 states:
"3.—(1) The Minister may make regulations prescribing any matter or thing which is referred to in this Act as prescribed or to be prescribed.".
That is all encompassing. Will the Minister, at his convenience, give us the benefit of his fine-combing of the sections and provide advice on the corpus of regulations to be made under the legislation so that we will have an understanding of the breadth of power in respect of secondary legislation vested in the Minister? Effectively, most of the documentation laid before both Houses of the Oireachtas passes after 21 days. It would be useful to know what important regulations will be made under this provision. What comes to mind are regulations relating to the volunteer Garda force, which will be drafted by the Commissioner of the Garda Síochána and then approved by the Minister without reference to members. However, because the matter will be brought before this committee, members will have an opportunity to tease it out with the Minister.
Deputy Ó Snodaigh raised an important point because the Minister would have the power to legislate under regulation. It would be useful to know the extent of the areas of regulation.
Although the other phraseology is just as good, to get us off to a positive start, I will accept Deputy Jim O'Keeffe's amendment.
On the question of the general regulatory power, it will be wide-ranging and encompass fixed penalty notices, the calibre of weapons, firearms safety arrangements, etc. A substantial range of issues will be covered. If I were to go down Deputy Ó Snodaigh's route that everything must be approved in advance, it would be unusual. Should the Deputies opposite wish to seek a derogation from the general rule that regulations can be made on the basis of negative clearance, which is what is prescribed, a positive clearance provision should be related to a particular area. Many aspects must be changed from time to time such as the calibre of weapons and so on and if I was obliged to come before the Dáil on each occasion on which I made or varied a regulation, some committee of the House would have a full-time job dealing with me. I suggest that my amendment be accepted and if the Deputies opposite see points where a positive clearance arrangement is required, they should raise them in the context of the individual power.
I do not disagree with the Minister. One of the reasons I tabled the amendment was on the basis of the extent of regulations. Yesterday, I made the argument that, in effect, we are debating not just one but several Bills at this time.
I accept the Minister's suggestion that it might be preferable that motions regarding derogations for specific items be put before the Houses of the Oireachtas, though such motions are often taken without debate in the House and forwarded to the relevant committee. If there is no controversy or opposition, they are dealt with in a speedy manner. One need only consider the speed with which many EU regulations, directives and motions move through the Dáil.
Much of what was contained in the Garda Síochána Act — I do not wish to enter a debate on the Garda reserve at this stage — was dealt with by way of regulation rather than through including broad parameters in the legislation. In hindsight, that may perhaps have been better, although perhaps not.
I will withdraw amendment No. 2 to amendment No. 10 on the basis that, as we proceed with the Bill, other members and I may identify areas in which we need to ensure that the approval of both Houses of the Oireachtas should be sought rather than simply providing that matters be laid before them. Many items laid before both Houses never again see the light of day. Acceptance of amendment No. 1 to amendment No. 10 would serve as a reminder to future Ministers that they——
I should have addressed the first amendment tabled by Deputy Ó Snodaigh in a more comprehensive manner. In making a regulation under the Act, the Minister must behave constitutionally and is, under the European Convention on Human Rights legislation, required to act in a conventional and compliant way. In addition, it is the practice of my Department to lay before the Human Rights Commission matters which it believes could reasonably be of interest to it and to give it notice of any regulations being made. The Human Rights Commission has acknowledged the Department of Justice, Equality and Law Reform's diligent compliance in that regard.
Every regulation must be mandated by the Act and the latter, as a matter of law, must to be interpreted in a manner that is European convention-friendly. I, as Minister, in doing anything pursuant to the Act must act in a manner that is compliant with the European convention unless the Act requires me to do something else. I do not believe that the latter is the case in regard to this legislation. Where issues of a human rights nature arise, it is the practice of the Department of Justice, Equality and Law Reform to forward regulations to the Human Rights Commission whenever practicable.
On that basis, I will withdraw the amendment.
Without wishing to create a great deal of trouble for the Minister's officials, would it be possible for them to conduct a thorough search of the regulations in the Act and identify the areas wherein the Minister is granted this power?
Yes, it would be possible to do that but not today.
Perhaps the information could be made available to us for Report Stage.
I move amendment No. 3 to amendment No. 10:
In subsection (2), to delete "it is made" and substitute "it has been made".
Amendments Nos 11, 13 to 15, inclusive, 17, 18, 22, 23, 25, 26, 28 to 30, inclusive, 37 to 40, inclusive, 42, 44, 48, 50, 53, 55, 57 to 59, inclusive, 62, 63, 65, 80, 87, 255 to 257, inclusive, 259 to 267, inclusive, 275 and 277 to 285, inclusive, are cognate and may be discussed together.
I move amendment No. 11:
In page 6, subsection (1), line 29, to delete "the" and substitute "an".
As already stated, these amendments represent my effort on behalf of the Irish language to have the force referred to as "an Garda Síochána". I have indicated that I am open to change in that regard but the Minister maintains his old position. I am not pressing the issue.
For the Deputy's information, if he is to follow that road, he should use the upper case form of the letter "A" throughout his amendments.
Now that we are beyond the principle and have begun to discuss how the matter should be developed, I will bear the Minister's advice in mind on my next effort.
I move amendment No. 12:
In page 6, subsection (1)(ii), line 38, to delete "that was," and substitute "that was".
This amendment removes a comma because the sentence concerned should contain either two commas or none.
I move amendment No. 16:
In page 7, subsection (3)(a)(ii), line 14, to delete “place” and substitute “place,”.
This is a grammatical and technical amendment, which adds a comma so that the sentence is more appropriately expressed as follows, "there is, or may be, in the place, evidence of," It is being brought on the suggestion by my adviser, who went through the Bill with a fine comb.
It is a matter of style. Like the Deputy, I believe in adding commas to subordinate clauses. However, the modern Parliamentary Counsel's usage differs. I am personally sympathetic but the house style has changed.
I move amendment No. 19:
In page 7, subsection (4), line 23, to delete "appropriate" and substitute "appropriate,".
The purpose of this amendment is similar to that of amendment No. 16.
The Deputy and the Minister aread idem but the Parliamentary Counsel is of a different opinion. Will the Deputy accept the Parliamentary Counsel’s wording?
The Parliamentary Counsel has specialist knowledge of the matter. My function is merely to raise these issues for consideration but if the Parliamentary Counsel considers the modern style to be superior, I will bow to that.
I move amendment No. 20:
In page 7, subsection (4)(j), line 43, to delete “and” and substitute “and/or”.
This is more than a technical amendment. It refers to the collection and preservation of evidence and the issuance of directions on photographing or otherwise recording a crime scene. I am trying to forestall technical defences because circumstances could arise in which a crime scene is photographed and otherwise recorded. The amendment represents an effort to ensure that the law is as watertight as possible and I put it forward for consideration in that regard.
I am not keen on the formulation "and/or" but, for consistency with the previous paragraph, it would be better to substitute "and" for "or".
That probably would be a way to resolve the issue.
Will the Deputy withdraw the amendment on that basis?
How will we substitute "and" for "or"?
It can be done on Report Stage.
Can we do so now in the form of an oral amendment?
It can be amended by agreement.
Could my amendment be accepted on the basis that it will not include the form "/or"?
Is that agreed? Agreed.
Amendments Nos 21 and 27 are related and can be discussed together.
I move amendment No. 21:
In page 7, subsection (4), after line 44, to insert the following:
"(k) preventing any person from photographing or otherwise recording the crime scene and/or anything at the scene.”.
This is a somewhat more substantive amendment in that it involves issuing directions at a crime scene. A situation might arise where a Garda officer might think it proper to prevent people from photographing or otherwise recording a crime scene or anything at that scene. If the Garda officer felt that was appropriate in the circumstances, it should be expressly included in the Bill that a Garda officer will have power to issue such a direction.
I examined this proposal. Whereas I can see from where the Deputy is coming, there is an opposing issue. If a Garda car collided with, knocked down and killed somebody, it could be interpreted as a negative measure that the Garda should have the exclusive right to record the scene. It could effectively mean giving the Garda the right to prevent other people from recording matters that might be of relevance to their innocence or to the guilt of other people. If we were to go down the road of providing that only the Garda could record anything at a crime scene, we would be obliged to include many more additional protections. If, for example, there was a fracas between a number of gardaí and a number of other persons and if the gardaí insisted that only they were entitled to preserve the scene and prevented anybody else from taking photographs of the state of play, it might be perceived as having a slightly sinister and overbearing tone.
One could not have a total ban on the media photographing a scene. There are certain rights.
Deputy Jim O'Keeffe is also possibly motivated by the idea that some photography by the media of crime scenes is unsatisfactory and salacious. The other point is that we are also, I hope, going down the road of producing standards for the media in this regard.
I suppose I should not single out the tabloids. However, if a family loses a member as a result of a grizzly murder, greater pain and hardship that has nothing to do with discovering who committed the crime could be caused by publishing photographs of a salacious nature in the media. It was to highlight that issue that I tabled the amendment. Is that what we want to happen? I appreciate the point that we are in an age when we encourage the freedom of the press within reasonable limits. That leads to the question of whether the issue I raise could be more properly dealt with in the context of a complaints procedure under a press council or whatever ultimately emerges in that regard. That was the main motivation for tabling the amendment. I cannot see how the taking of photographs which might be published could impinge on the trial of an action. While this may or may not be the appropriate place to include the proposal, it is appropriate at least to discuss the matter at this time. That is why I tabled the amendment.
While much of the discussion has centred on use of gruesome photographs by the press, there are other issues involved. Parents may not want their children to see photographs of a murder victim but find such pictures all over the newspapers. We can address their desire to protect their children through the application of certain standards or by requesting the media to observe certain codes of practice. In recent times we have moved from traditional standards to a dispensation, whereby the portrayal of persons killed in gruesome circumstances is the norm. Nevertheless, my support for the provisions derives from another perspective. The Garda probably has powers to ensure there is no contamination of a crime scene, but we must consider the increasingly prevalent problem experienced in other jurisdictions of media helicopters arriving at the scene to take photographs. This intrusion immediately distracts gardaí who are working, while the blast from the helicopter's rotors——
That matter is covered in section 4(4)(g) under which the Garda is allowed to prevent someone from interfering with a crime scene.
It is on that basis that I support the provisions under discussion which are included to ensure there is no contamination of crime scenes and to give the Garda the best possible opportunity to collect forensic and other evidence without interference. If gardaí are distracted by people taking photographs, such behaviour should be frowned upon and addressed.
I acknowledge the Minister's point that the right to take photographs is not exclusive to the Garda. Were they to make an objective analysis, most people would agree. However, there is another concern, on which Deputy O'Keeffe has reflected. I support his remarks on the basis that the public is concerned about the manner in which sections of the media regularly abuse their position. Amendment No. 21 addresses the taking of photographs which, as we have seen in many instances, has damaged the integrity of due process in the justice system. The recent record of certain media representatives is very poor. There is a great deal of anger among the public at the way in which the media have handled the murder of a young woman in north Dublin, in particular. Questions have been raised as to what will transpire if a trial ever takes place. I will not go into detail, but there is a great deal of anger among the public about media damage to the integrity of a potential or future trial. Amendment No. 21 refers to "photographing or otherwise recording the crime scene". I have referred previously to the need for freedom for the public to facilitate the justice system, but there is a great deal of anger about the way in which the tabloids especially have behaved in the past four or five years in addressing crimes and intruding into people's private lives. Many are upset.
An interesting aspect of the issue is the existing legislative position. The Garda has no authority to preserve a crime scene and does so without the necessary powers.
This is the first occasion on which there will be statutory powers to preserve the scene of a crime. What experience has the Garda Síochána had in this regard? Where a crime scene is a public place, I imagine that gardaí will tape it off and erect bollards and a sign and that the public will remain outside of these. Where a house is involved, hardly anybody would be entering. I do not know if there have been problems in that regard. Provision already exists in the Garda Síochána Act in respect of people providing information to the media with regard to ongoing investigations. I presume that the Garda Síochána Act grants powers to control photographers.
No, it relates to information in the possession of the Garda. If a photographer goes out to the North Strand with the intention of using telephoto lenses, nothing can be done.
In Chester, something can be done.
When I visited Chester recently, I watched a discussion on television on whether the BBC had overly intruded on the privacy of Mr. Norman Kember, who had been a hostage in Iraq. What annoyed the viewers who wrote in to complain was that there was a large crowd of photographers and journalists outside his house, while a reporter in a helicopter hovering overhead indicated that he had left the house and was going towards the shed at the back of his garden. The entire scene was shown. To his credit, the executive of the BBC who was asked to comment said this was excessive intrusion. It just shows what can happen.
We are concerned with two issues.
With regard to a lens, one does not have to interfere with a crime scene——
No, one does not.
One could be 100 yd. away in a building down the road so would it not be impossible to include that in the designated area over which the Garda would have control?
That is true.
In putting this forward, I am bearing in mind — I will be careful with my comments — a particular case in west Cork in which inappropriate and unhelpful actions occurred. This discussion has been worthwhile and I am guided by colleagues on it. I am searching for the best solution. I accept that we are trying to put in place a system that will provide the best possible way for the Garda Síochána to deal with crime scenes. At the same time, however, we do not want to unduly interfere with the rights of the media.
As Deputy Costello said, it is odd that such powers as the Garda Síochána possesses are either common law in nature or come about by necessary implication. Since the force has a function in investigating crime, it might be implied that it has collateral entitlement to preserve scenes. It is important to put this on a proper statutory footing because it is not simply a matter of having a murder scene in a domestic house and respecting the wishes of the occupants. Crimes are frequently committee at places of profitable economic activity and the owners of, for example, supermarkets are reluctant to close down their operations for three days. This statutory provision is designed to give rights and protections to property owners and to give the Garda elbow room to do its work. It is also aimed at providing a means of resolving any conflict between property owners and the Garda.
Is amendment No. 27 related?
Let me explain. Amendment No. 27 deals with a point mentioned yesterday by Deputy Jim O'Keeffe in another context that he proposed to deal with under the Offences Against the State Act. The amendment reads:
"A direction ... shall be deemed to continue in force until the determination of an application undersubsection (9) or (11) if—
(a) the direction is in force when the application is made, and
(b) the direction would, but for this subsection, expire before the determination of the application by reason of the fact that pursuant to subsection (13), an opportunity is given to a person to be heard."
In other words, this is to preserve the continued operation of a direction while there is an argument about it before somebody entitled to decide the argument.
I am supportive of the amendment. The Minister mentioned the very same point that I had raised in connection with the application following the murder of Ms Donna Cleary. Allowing for a similar situation, where the application is made within the time allowed, the length of the application or any delay during its course will not cause the matter to fail.
I move amendment No. 22a:
In page 8, subsection (8)(a), line 13, after “practicable” to insert the following:
", but any failure to so do shall not render invalid, retrospectively or otherwise, such a direction".
We are considering a direction under subsection (3) in order that a "member of the Garda Síochána not below the rank of superintendent may give a direction designating a place as a crime scene". The direction may be given orally or in writing. If given orally, it should be recorded in writing as soon as reasonably practicable thereafter. I am merely covering the point that if for one reason or another, there has been a delay in recording the direction in writing, any such delay should not render the original direction invalid.
This is an amendment for which I have some sympathy. I can imagine a situation where there would be constitutional implications, for example, if an oral direction had been given and for some reason due to carelessness or inadvertence, a garda forgot to record it in writing as soon as practicable thereafter and then found himself or herself in the situation where it was claimed that evidence found in a private dwelling house in preserving the scene had been unconstitutionally obtained. I will look at the amendment between now and Report Stage. As it would apply retrospectively, I am slightly reluctant to state I agree completely with it.
If the Minister can come up with a better formulation to achieve its intent, I will be happy. I am very concerned that we could find evidence that would be subsequently be regarded as contaminated.
It might be argued that it had been unconstitutionally obtained in that a citizen's dwelling is not capable of being violated other than in accordance with law. If somebody forgets to record something, the search might collapse.
I asked for the Bill to be examined from the point of view of a defence lawyer in the context of determining what issues could be raised. We must try to close loopholes that could be used as a technical defence, in particular. The public is rightly annoyed when someone escapes the clutches of the law on a technicality. We must finecomb the legislation for such loopholes. Once set in law, an accused is entitled to interpret legislation as is, not as we would wish it to be.
While I understand Deputy Jim O'Keeffe's point of view, the provision, as drafted, is correct; otherwise one would be providing people with a blank sheet.
That, too, would create a problem.
A superintendent has ample time to check for loopholes prior to production of the book of evidence. The Bill provides that he or she must do so "as soon as reasonably practicable" and should not arrive in court without having done so. We aspire to the Garda Síochana approaching all investigations in as professional a manner as possible. I do not know how they are conducted but presume it uses check-lists and standard forms for various crime scenes. Perhaps such forms are drawn up by superintendents. I presume a review is conducted following closure of an investigation. That may be the time for the Garda to confirm particular directions in writing before sending a file to the Director of Public Prosecutions. Such documentation should be included in the file forwarded. It is this type of incidence about which we are speaking. During the collection of evidence a superintendent has ample opportunity to close off any loopholes on which an accused might be able to rely to collapse a case. I await the Minister's response.
The amendment would not remove the requirement that the direction be recorded. My concern is that an argument could develop as to what was reasonably practicable and when. If the balance of the argument was that "reasonably practicable" meant three days later rather than the following day, it could have the consequences outlined by the Minister. I am merely seeking to cover that point. I am happy to withdraw the amendment and invite the Minister to examine it further before Report Stage.
Amendments Nos. 22b, 24a, 26b and 26c are related and will be discussed together.
I move amendment No. 22b:
In page 8, subsection (8)(b), line 15, to delete "it" and substitute "it,".
Amendment No. 22b which seeks to ensure the Bill would read better is purely technical and submitted for consideration by the Minister. Amendment No. 24a is also technical. As the provision stands, one could think a person was making “an application” to the High Court. I ask the Minister to also consider this amendment. Amendment No. 26b seeks to ensure the Bill would read better by the deletion of the word “an” in subsection (13), page 9, line 16, while amendment No. 26c seeks to insert the words “which is” after “place” in subsection (14), line 25. It has been suggested the Bill would read better with these amendments.
The amendments deal with stylistic matters. I am prepared to accept amendment No. 26c which would result in a more elegant reading of the Bill.
Deputy O'Keeffe's spoke about section 8(a) which provides that, as soon as reasonably practicable, a direction should be given orally or in writing; that, if given orally, it shall be recorded in writing, signed by the member of the Garda Síochána and be a written record. To what form of writing does the Bill refer? Can such a record be communicated by e-mail?
What happens to such a record? Where is it deposited and who is responsible for it?
A written record does not have to be handwritten but must be in some form of writing.
It must be signed.
In law a signature can be a person's name or a squiggle indicative of how the person signs a letter.
I presume the intention is to identify the person who recorded the information on an incident.
While that is usually the case, it is not always so. Some use a monogram for a signature. Case law provides that person A may direct person B to sign a document on his or her behalf and that the signature is that of person A.
There is a scale involved in preserving a scene.
We should not try to resolve the matter in this context. There is a great deal of complex law in this area. If I ask an official to sign a document on my behalf, is such a signature considered to be mine? There are certain cases wherein such a signature would be found to be mine. A signature is usually designed to be something authentic. In other words, one's name in block capitals is not usually regarded as a signature, unless that is the way one normally signs all documents.
This issue arises for discussion under amendment No. 23a in my name.
We must complete this group of amendments before moving on to the next set.
Amendment No. 23a deals with the point raised by Deputy Costello.
We will deal with the matter when discussing that amendment.
I thought we were discussing amendment No. 22a.
That amendment was withdrawn while the Deputy was absent from the room.
The amendment was being discussed when I returned.
We are discussing amendment No. 22b. Amendment No. 22a was withdrawn.
I understood amendments Nos. 22a and 22b were being discussed together.
Deputy Costello will have an opportunity to discuss the matter when we come to amendment No. 23a.
As a means to bring the discussion on amendments Nos. 22b, 24a, 26b and 26c to a conclusion, I propose to accept amendment No. 26c if Deputy Jim O’Keeffe agrees to withdraw the other three.
I would be happy to do so.
Amendments Nos. 23a and 23b are related and amendment No. 24 is an alternative. The three may be discussed together.
I move amendment No. 23a:
In page 8, subsection (8)(b), lines 16 to 21, to delete all words from and including “shall” in line 16 down to and including “concerned” in line 21 and substitute the following:
(i) describe the place thereby designated as a crime scene,
(ii) state the date and time when it is given,
(iii) state the name and rank of the member giving it, and
(iv) state that the member has reasonable grounds for believing that the direction is necessary to preserve, search for and collect the evidence concerned".
This amendment addresses the issue of the written record. I am putting forward a number of proposals for consideration in that regard. As it currently stands, section 4(8) sets out that a direction under subsection (3) shall be signed by the member of the Garda Síochána giving it and shall describe the place and state the date, the name and rank of the garda concerned and indicate that the garda has "reasonable grounds for believing that the direction is necessary to preserve, search for and collect the evidence concerned." My amendment would require that the garda shall describe the place and state the date and time that the direction was given, the name and rank of the member giving it and that he or she has reasonable grounds for believing that the direction is necessary. As a garda's signature would not be necessary, although his or her name and rank must be stated, this amendment represents a better formulation when dealing with a written record and will address the issues raised by Deputy Costello.
The Deputy is attempting to break the provisions of section 4(8)(b) into a sequence of subparagraphs. As I see it, the subsection already contains the necessary ingredients.
Does Deputy Jim O'Keeffe's amendment include provision for a signature?
It is still there.
One could not require the information provided for in section 4(8) without also requiring a signature.
I will ask the Parliamentary Counsel whether Deputy Jim O'Keeffe's wording would be neater and more user-friendly.
We need to clarify what is meant by "signature".
It is clear, in this instance, that the direction must be signed by the garda officer giving it and must state his or her name and rank. Even if the signature is scrawled, the garda must still state his or her name.
Can a garda simply make a statement directly on PULSE and sign it without providing a written signature? I presume that we will not always require gardaí to fill out sheets of paper in stations.
We are asking for a written document.
Should we be asking only for that?
I am unsure whether people would be satisfied with digital versions because the argument could be made that such versions can be subsequently changed. While a physical record was envisaged in this section, I will reconsider the matter before Report Stage.
It is simpler for a garda to take handwritten notes at a crime scene. Problems may arise in terms of specific descriptions of scenes and, possibly, a person's dwelling. In the past, gardaí risked trespassing on property when preserving crime scenes without the statutory entitlement to do so. Now that we are putting such an entitlement in place, specific provisions will need to be made with regard to describing a scene, particularly where a dwelling is concerned. It seems that the best place to describe a crime scene is at the scene itself. Court challenges may ensue if a garda returns to his or her station before jotting down his or her memories of the scene.
I will investigate that matter.
The reordering of the subsection, as proposed in my amendment, would make it more readable and understandable. Given that members of the Garda Síochána will be obliged to study the legislation and bear it in mind when dealing with crime scenes, the clearer its language, the better.
Amendment No. 23b makes an important addition to the Bill by stating, “subject to subsection (10)”.
With regard to signatures of gardaí and Deputy Costello's comments, the superintendent who signs the direction should not be obliged to attend every crime scene. A superintendent would not get much work done if he or she was obliged to run from scene to scene. A written record should be physically signed but advice would be taken before doing so.
Section 4(10) states that such an order cannot be made more than three times.
The other provisions change the order.
It highlights the fact that such a direction cannot be continued in force more than three times. It also highlights the fact that provision in this regard is made in the legislation.
That is the only difference.
They are largely reordering amendments.
I agree with Deputy Jim O'Keeffe that this is a better formulation. The words used are more straightforward and specific. One can see that there are four distinct steps.
I will examine the matter between now and Report Stage.
Will the Minister ask the Parliamentary Counsel to examine it to see whether he accepts that approach?
What about the reference to section 4(10)?
There is a reference in amendment No. 23b to a judge making an order continuing a direction in force. Any such order made by the judge must be subject to section 4(10), which requires that a direction cannot be continued in force more than three times.
Section 4(10) is clear. If we were obliged to repeat it somewhere else, it would give rise to a matter of style.
We will leave it to the Parliamentary Counsel.
Section 4(11) provides that a court may make an order continuing the direction in force for such period as it considers appropriate.
To what section is the Deputy referring?
That refers to the High Court.
Yes. It can begin in the District Court but it can proceed indefinitely in the High Court.
We will be discussing that matter in respect of forthcoming amendments.
I merely wanted to clarify the matter.
The full effect of section 4(10) would be that it would be possible to designate a crime scene for up to 168 hours, or seven days, plus the initial 24 hours. I do not have a difficulty with that. However, it should be clear that it is seven days in total. A crime scene could be a dwelling, the occupants of which might have nothing to do with the crime committed.
In regard to section 4(11), the period in question is also covered by the previous amendment I tabled. The clock stops ticking once the application is made.
How long can the High Court keep it going?
Indefinitely, if necessary.
That is what I thought.
If there was reason to believe that vital evidence was somehow locked into a computer system and that it would require people to spend a great deal of time breaking down electronic barriers to obtain it, this provision will give the High Court full and original jurisdiction to keep the process going as long as it thinks it is just to do so.
Does the same apply in terms of a dwelling? I am not seeking restrictions on this; my only concern is where a dwelling is designated a crime scene.
In the context of the Soham murders in the UK, a court effectively rendered the caretaker's house preserved and unusable for approximately a year while it was effectively dismantled to discover the truth. If something of that nature is going to be done — and it is obviously a huge potential intrusion on somebody's rights if he or she is the property owner — it should be by virtue of a High Court order that it is reasonable, in exceptional circumstances, to do something like that.
I take it that the reference in section 4(14) to attaching conditions for the purpose of protecting the occupier might require the authorities to provide alternative accommodation.
Or to pay for the damage done.
My query is in the context of one of the other major cases in Britain, namely, the West case. People had moved into the house after Frederick West killed and buried people. The house in question was designated a crime scene for quite a long period. What will happen to families that live in such houses?
I imagine that would be dealt with under section 4(14) and that, if a family is evicted from its house for a year or so, the High Court would order that its members must be looked after.
That is fine.
Is the amendment being withdrawn?
I would like the Parliamentary Counsel to examine the approach.
Will the Deputy withdraw the amendment on that basis?
I move amendment No. 26a:
In page 9, subsection (12), lines 12 to 15, to delete paragraph (b) and substitute the following:
"(b) the owner, if—
(i) it is not reasonably practicable to ascertain the identity or whereabouts of the occupier, or
(ii) the place is unoccupied,
unless it is not reasonably practicable to ascertain the identity or whereabouts of the owner.".
This amendment relates to section 4(12) and takes a somewhat different approach to dealing with the owner or occupier. This is a reordering amendment. It was tabled more for the attention of Parliamentary Counsel than that of the Minister and I suggest that it expresses the position in a much clearer fashion than the subsection in question. There is no substantive change proposed.
There is a difference between the owner and the occupier. Both need to be included among the persons to be contacted if the Garda Síochána seeks an application for an extension in the High Court. There could be a tenant and a landlord involved. There is no provision that the identity of the owner of the premises should be sought, even though the owner will be affected if the property is damaged.
The amendment does not affect the occupier.
It is the occupier that is referred to here. The Minister makes no reference to the owner and Deputy Jim O'Keeffe makes no reference to the occupier.
I will examine the position.
It is really a matter for the Parliamentary Counsel.
The Deputy is including the owner twice. He is re-emphasising the positionvis-à-vis the owner. The Parliamentary Counsel will examine that matter. Will the Deputy withdraw the amendment on that basis?
I move amendment No. 26c:
In page 9, subsection (14), line 25, after "place" to insert "which is".
I move amendment No. 27:
In page 9, between lines 25 and 26, to insert the following subsection:
"(15) A direction undersubsection (3) shall be deemed to continue in force until the determination of an application under subsection (9) or (11) if—
(a) the direction is in force when the application is made, and
(b) the direction would, but for this subsection, expire before the determination of the application by reason of the fact that, pursuant to subsection (13), an opportunity is given to a person to be heard.”.
We will discuss amendments Nos. 31 and 31a together.
I move amendment No. 31:
In page 10, between lines 13 and 14, to insert the following:
"(2) The Order of the District Judge issuing a search warrant under this section shall record in writing the grounds on which the power has been exercised.".
The purpose of the amendment is to give effect to a recommendation by the Law Society which argues that this provision would make the process as transparent as possible. It would ensure the order of the District Court in issuing a search warrant would be recorded in writing, showing the grounds on which the power had been exercised. The Law Society stated the process would be as transparent and as fair as possible and might prevent later challenges to orders. In applying to the District Court the Garda should be required to specify the arrestable offence, of which the presiding judge should take note. This is reasonable in that anybody applying to a judge at that stage should have some idea of the specific arrestable offence for he or she needs a warrant.
Am I to deal with amendments Nos. 31a and b now?
Only amendment No. 31a.
Amendment No. 31a seeks to insert a subsection after subsection proposing that where a judge of the District Court issues a search warrant, he or she should endorse, or cause to be endorsed, on such a warrant the time and date of the issue of the warrant; the time and date on which the warrant would expire, the period of validity of any warrant not to exceed one week; the named member to whom the warrant would apply and the maximum number of other members or persons who may accompany the named member, where a limit on such members or members would apply.
There are two issues involved, one of which relates to the expiry time of the warrant. I need not highlight the problems that can arise if that is not clear. It would be helpful if the expiry date was clearly stated on the warrant as it would obviate the confusion and difficulties that arose in a recent and celebrated case. The other issue touched on relates to who may or may not accompany the member to whom the warrant is issued. If a warrant is issued, the person concerned should execute it, but it may not be possible for him or her to do so alone. It might not be possible at the time of issue of the warrant for the member to specify exactly who would accompany him or her. It is a question of clarifying to whom the warrant is issued and the number of persons who may accompany that person in executing the warrant. These are questions that have been raised on the execution of warrants and my amendment is an effort to clarify and close off any loopholes.
There is a certain validity in having the details of warrants as suggested in the amendments, a written record of the grounds in Deputy Ó Snodaigh's and the specifics in Deputy Jim O'Keeffe's. Warrants seem to be vague. It is important, therefore, that there be a record of the precise areas to be searched and the people identified. Warrants operate on a general basis in terms of the extent of an area that can be searched. It would be better to have a recorded statement of what the judge permitted rather than what tends to be the end result of a wider search that may not have been encompassed by the original request, particularly when we consider how easily warrants are granted.
Although Deputy Ó Snodaigh's proposal has the backing of the Law Society which claims it would make proceedings more transparent, it would not make matters more practicable. District Court judges have much work to do. In the course of an afternoon detectives request warrants and set out their information under oath. If the judge has to write out the reasons and get them correct to a level at which they cannot be unpicked afterwards due to words being omitted, errors or the failure to state the glaringly obvious, it will slow the process of granting warrants. We must be practical. Judges are conscientious and require evidence. However, if they grant a search warrant, they should not have to write out their reasons when they have just heard evidence on the matter. They do not have to state their reasons for many other steps they take.
Do they have to state their reasons for sentencing someone to prison?
They are supposed to give reasons sufficient for the people in court who are making the contrary argument to understand why their case has been beaten, but this is usually anex parte procedure. To require a judge to record his or her reasons in writing would make the system less workable and create more loopholes than it would close. Although Deputy Ó Snodaigh has made the point that the Law Society has argued that it would prevent later challenges to documents, that is an optimistic view. If a tired District Court judge has to write down the eight reasons for granting a warrant and the warrant fails because one is omitted, he or she will not feel happy about it. This is not a point of high principle, but having seen the system operate it is more likely to give rise to snafus than if it was not done. Deputy O’Keeffe has seen detectives come into the District Court many times. If the judge has to clear the decks and write out a legal essay on why he or she agrees to the issuing of a warrant, he or she will probably have to retire to his or her chamber to take careful note of the evidence and ensure the warrant will match exactly what some clever senior counsel will later say——
I stand by the arguments of the Law Society.
I see what it is arguing. In an ideal world we would have a transparent record of the reasons, but this would be less than ideal. I will think further about the Deputy's suggestion, that a warrant should show the time at which it would expire. Although it is desirable that a garda should have easy access to this information, I must re-examine the matter. This matter was discussed at considerable length during the Judge Curtin case. If a warrant is issued on the first day of the month and is valid for seven days, we must determine, under the Interpretation Act, whether it expires at midnight on the sixth day or at midnight on the seventh.
I am seeking to ensure clarity for the executing officer. Such a person must be absolutely clear with regard to where he or she stands.
I appreciate that. Apart from the notion of stating when this happens, the law must be clear on what seven days means in this context. I do not want to accept an amendment on the hoof which will push me down a particular route. I accept the Deputy's point. In my view, a standard warrant should set out the date on which it expires. This would ensure that everybody, namely the garda and person to whom the warrant is presented, is aware of the day of expiration. I agree with the Deputy that it is a bit rich to expect ordinary people to have knowledge of the common law rules of counting time and the Interpretation Act in terms of whether the whole of a day on which the warrant is granted is included in the seven days. I will examine the matter further.
When doing so, perhaps the Minister would consider a further aspect. What would be the position if a warrant expires at midnight on the seventh day and the search begins at 10.30 p.m. or 11 p.m. that night?
The same issue arises.
I suppose a search warrant should be executed in ample time within the appropriate period, as specified by the order.
If not, the officer concerned should seek another warrant.
I am merely seeking absolute clarity on the matter.
I appreciate that. The Deputy will appreciate, in the context of this and the following amendment, that there are many instances wherein this arises.
I accept that.
It is perhaps time we addressed the issue on a systematic, comprehensive basis rather than by amending one particular provision.
I take it that Deputy Ó Snodaigh is not happy about this matter.
I am not unhappy either. I accept the Minister's response that the amendment, as drafted, may be unworkable. Would it be workable if, instead of stating the grounds on which the power has been exercised — which would require the provision of an explanation in terms of which detective or superintendent applied for the warrant — we were to state the arrestable offence on which the power has been exercised? Obviously, a specific offence must be committed in order for the warrant to be issued and it is on the basis of such offence that the judge issues it. I do not know if that has implications for what occurs during the search. Is a search warrant rendered invalid if the Garda discovers that some other offence has occurred on the premises being searched? I am seeking to ensure that warrants will be granted where the Garda suspects that a crime or offence has been committed rather than to facilitate fishing expeditions. I will withdraw the amendment with a view to resubmitting it on Report Stage.
It is reasonable to request that there be some form of regulation of search warrants.
I will reconsider the matter to see whether the arrestable offence must be specified.
On that basis, I will withdraw the amendment and resubmit it on Report Stage.
I move amendment No. 31a:
In page 10, subsection (1), between lines 13 and 14, to insert the following:
"(2) Where a judge of the District Court issues a search warrant under subsection (1), he or she shall endorse or cause to be endorsed on such a warrant—
(a) the time and date of the issue of the warrant,
(b) the time and date on which the warrant shall expire, the period of validity of any warrant not to exceed one week,
(c) the named member to whom the warrant applies, and
(d) the maximum number of other members or persons who may accompany the named member, where a limit on such members or persons applies.”.
I am seeking greater clarity on this issue. However, on the basis that further consideration will be given to it, I will withdraw the amendment.
Amendments Nos. 31b and 36b are related and will be discussed together by agreement.
I move amendment No. 31b :
In page 10, subsection (1), between lines 13 and 14, to insert the following:
"(2) In issuing a warrant under subsection (1), a judge of the District Court shall—
(a) have jurisdiction to issue a warrant for any District,
(b) not be jurisdictionally limited to the District wherein he or she ordinarily sits, and
(c) not be obliged to be physically present in any District or in a District in respect of the jurisdiction of which he or she is issuing a warrant.”.
A number of gardaí have drawn a particular matter to my attention. It follows on from the decision in the Dylan Creaven case.
The question arises as to where and when a judge may issue a warrant. I will provide an example. It would normally be the case that a judge appointed to District 18 in Cork would be from outside that district and would often reside in Cork city, which is located in a different district. A situation might arise when that judge might be attending a social occasion in Killarney at a particular weekend, which is located in another district entirely. We must clarify and simplify the positionvis-à-vis judges issuing search warrants. The Bill provides for exceptional powers for superintendents in particular circumstances. I would prefer that search warrants should, as far as possible, be issued by judges. We must, therefore, clarify and simplify the basis on which they can do so. We appear to be placing too much of an onus on gardaí to track down judges in districts in which the latter may not reside. In other words, we are placing an undue number of obstacles in the way of officers seeking search warrants. We also appear to be placing undue obstacles in the way of these officers. At the same time, however, we must take into account the decision in the Dylan Creaven case.
A case could also be made — I will pre-empt a point that may be raised by the Minister in this regard — that a District Court judge is appointed to a particular district and, therefore, he or she only has jurisdiction within that district. It is, as I see it, a matter of statute and legislation. Judges of the superior courts have certain constitutional privileges, particularly in light of the fact, and as provided in legislation, that they are constitutionally recognised judges of the District Court. We can, therefore, legislate in respect of the nature of their powers, as is the case in terms of limits of jurisdiction in the context of criminal and civil matters, and with regard to how they exercise those powers in the context of search warrants. We have jurisdiction to deal with this issue and should do so in the context of the Bill. Of all the issues relating to criminal justice raised with me, this is the most frequently mentioned by members of the Garda Síochána as causing them problems in carrying out their duties in the detection of crimes and in arresting those they suspect of having committed such crimes.
I support Deputy Jim O'Keeffe's valuable point on this. We are all aware of the issues raised in the context of District Court judges operating outside their jurisdiction. Addressing this issue would provide an extra facility in terms of allowing District Court judges to execute search warrants. The Minister is proposing that, where the alternative is not practical or in matters of urgency, a superintendent may make the necessary decision but, in such situations, it would be better that a third party rather than a member of the Garda be responsible for adjudicating on a warrant. In the legislation as presented, there is no requirement that the deciding superintendent be the superintendent for the district concerned. Any member at or above the rank of superintendent appears to be entitled to issue a search warrant, irrespective of whether he or she has jurisdiction over the area in which the crime is committed. This amendment would be of benefit in terms of increasing the number of opportunities for putting the case for a search warrant to a third party rather than asking members of the gardaí to issue themselves a search warrant.
I thank Deputy Jim O'Keeffe for raising this important matter, which arises from the decision in the Dylan Creaven case. It seems to me that the Constitution provides for the High and Supreme Courts and for courts of local and limited jurisdiction. The phrase "local and limited" has some meaning but, subject to the views of the Attorney General, the mere fact that the District and Circuit Courts are courts with local jurisdiction does not mean orders can be made in those courts by judges who are not assigned to them at any given time. With regard to procedural steps such as search warrants, there is no constitutional obligation that a judge must be exclusively attached to a specific court of local and limited jurisdiction. Provided he or she is exercising local and limited jurisdiction, any judge may make the relevant decisions. I do not see a constitutional argument against this issue, although the Attorney General may be of a different opinion. Just as it is not specified, as Deputy Costello noted, that a local superintendent is responsible for the decision on a warrant, I do not see how the Constitution can be offended if a judge in Tipperary makes a decision for Killarney District Court on a warrant for Killarney. However, it is obviously desirable that local judges, where practicable, should exercise their own jurisdiction because, for all sorts of reasons, it may be undesirable that a warrant is issued by someone in the opposite corner of the country.
However, the problem that arises with Deputy Jim O'Keeffe's amendment is that it merely changes one warrant procedure under one Act, whereas the decision in the Dylan Creaven case circumscribes the jurisdiction of District Court judges in many areas. The issue will have to be addressed on a comprehensive and systematic basis. I have been told the drafting process with regard to amending legislation on a general basis is almost complete and on a later Stage I may be able to bring an amendment of a generic kind.
I am happy the Minister accepts the urgency of this matter. The Garda Síochána is restricted in its operations because of the regime that ensued from the Dylan Creaven case. The response to this matter, provided it is prompt, will not have to be within the terms I framed in this amendment. Although subsection (1) of the 1997 Act covers arrestable offences, I have no problem if the Minister thinks the provision should be broad in nature. I am conscious of the possible constitutional ramifications but do not believe there will be any constitutional restrictions in following the course we suggest.
Will the Deputy withdraw the amendment on the basis the Minister is bringing forward a remedy?
I will withdraw it on the basis that the matter will be addressed on a later Stage.
Amendments Nos. 32, 33, 33a and 34 may be discussed together.
Are we wise to continue our discussions, given it is now almost 11.30 a.m.?
As questions to the Taoiseach commenced at 11.15 a.m., the Order of Business will not begin until noon. I suggest we adjourn ten minutes before the commencement of the Order of Business.
I move amendment No. 32:
In page 10, to delete lines 14 to 39.
Now that the Minister is disposed to accept Deputy Jim O'Keeffe's amendment to provide for a mechanism for the issuance of search warrants by other District Court judges, perhaps he will accept my amendment to delete the remainder of the section.
We have been making efforts to ensure checks and balances exist in legislation and, in our determination to prevent any hint of impropriety in the work of the Garda, have agreed to replace the old Garda Síochána complaints body with an ombudsman commission in order that gardaí are not seen to be investigating themselves. We daily learn more about the saga in Donegal from the Morris tribunal. If we establish in principle that it is improper for the Garda to investigate itself in matters of misbehaviour, it is important that we similarly provide a preventative measure so that gardaí cannot issue search warrants. We should make use of the alternative mechanism for the issuance of search warrants by a third party, which Deputy Jim O'Keeffe's amendment sets out.
Is there evidence to the effect that the courts are not adequate to the task of providing search warrants? The Garda representative associations have not been knocking at my door to raise the matter. As a search warrant can have dramatic effects on a person's home, it should be treated with circumspection. The traditional degree of circumspection meant a garda could not obtain a search warrant without recourse to the courts. The District Court, having heard evidence on oath as to why and where it was required, issued the warrant. We are departing considerably from that approach. The legislation states the warrant must be necessary for the proper investigation of an offence — that goes without saying — and that the circumstances of urgency giving rise to the need for the immediate issue of the warrant render it impracticable to apply to a judge of the District Court. That must be questioned. We need solid information on whether in such circumstances there is an impediment to the issuing of warrants and, therefore, to the investigation of criminal activity.
The course upon which we are embarking is a dangerous one. It is a step backwards in terms of what we have done in the Garda Síochána legislation. It provides for ease of opportunity. It will be much easier for a garda to go to a superintendent to seek a warrant as a matter of urgency as all crime has a certain urgency about it. Under the legislation there is no obligation to put in writing the reason for the urgency. Inevitably gardaí will increasingly bypass the courts, perhaps not initially, but as time passes, they will realise it is easier to obtain a warrant from the superintendent than to go to court. Simply for practical reasons they will take that option. It then becomes a dangerous option. We saw what happened in Donegal, how shortcuts had been taken and unauthorised activities engaged in. If we provide a shortcut, it will be availed of more often than is intended in the legislation. In line with the principle of the Ombudsman that gardaí should not investigate gardaí, the Garda should not issue search warrants which can have a very intrusive effect on people's lives without recourse to a third party. That third party is the District Court.
I will withdraw my amendment in favour of Deputy Costello's. There is an error in mine. It should have covered up to line 39.
Deputy Costello's amendment will be considered first. Should it fall, the Deputy's amendment will be considered. He should, therefore, wait a moment.
I understand that. However, my amendment does not make sense because it does not cover the next 16 lines which could not stand if the amendment was accepted.
In line with Deputy Costello, my objection is based on the fact that there should be judicial warrants and that we should stick to this approach as much as possible with limited exceptions. We should not go down this road. Deputy Jim O'Keeffe's last amendment dealt with the fact that District Court judges could be found to issue a warrant and that should cover every eventuality.
A number of submissions were made on this issue by the Irish Council for Civil Liberties and the Human Rights Commission. The Law Society has also commented on it. The Human Rights Commission has stated the European Court of Human Rights has noted that it will be particularly vigilant where the authorities are empowered under national law to order and effect search warrants without judicial warrant. The court has stated that in the case of any law authorising searches without judicial supervision, a legal framework must be in place with strict limits that provide for adequate and effective safeguards for that law to be regarded as proportionate. We do not have those safeguards.
I am concerned that we are going down this road, given what happened in County Donegal, and we have looked only at that county. Detective Sergeant John White mentioned what had occurred in other Garda stations in which he had operated. Perhaps there will be an investigation of the allegations he made to the effect that there had been bad practice and abuse of power in other areas. A number of gardaí at various levels within the Garda Síochána have been accused at the Morris tribunal. Obviously, gardaí in County Donegal not only abused their powers but also took short cuts in order to obtain promotion and move up the ladder. Although I hope it is not the case, given what has emerged at the Morris tribunal, it is conceivable that there are persons with the rank of superintendent within the Garda Síochána who abused their position in the past and we are proposing to give them a power which they could abuse.
District Court judges are now more freely available. However, consideration could be given to the possibility of a District Court judge having the option of faxing a search warrant to a garda if he or she cannot be in the judge's presence. We must retain judicial control in the issuing of search warrants. Otherwise we create the possibility of significant interference with the personal rights of citizens which are protected under Article 40 of the Constitution. There are other international instruments which also protect the right to private life. A search warrant interferes with this, even if it is used for a proper purpose. We must ensure that when a search warrant is sought, every protection is given in order that there is no abuse of power and that action is correctly taken. As Deputy Costello said, it would be easy for a garda to knock on a superintendent's door and ask for a warrant and for the superintendent to issue a warrant without the oversight and independence from the Garda that a District Court judge gives to the process of issuing search warrants.
There are a number of amendments being discussed together. I will make a few general points before dealing with each of them in detail.
I want an effective search warrant system that will allow members of the Garda Síochána to do their job of preventing and detecting crime. As I am cognisant that we must respect the rights of individuals, particularly in their own homes, we must devise an effective system that will take into account the constitutional and other rights of the people. My preference is a system under the jurisdiction of judges. As far as possible, I want search warrants to be under the jurisdiction of and issued by judges. That means dealing with the Dylan Creaven case and freeing the system in order that at weekends and out of hours District Court judges can be located and presented with an application and that a warrant will not be found to be technically deficient because that location is not within their district or that a warrant was not signed by the judge who normally sits in that District Court area.
The third prong of my approach is that we must provide for exceptional circumstances. That is why I am prepared to accept that a warrant can be issued by a superintendent; however, it must be limited to exceptional circumstances. I would go further than what is provided for in the Bill. One of the amendments proposed seeks a monitoring of that exceptional circumstance to ensure we would not have a situation similar to the one where one seeks the "chief's permission" to drive a Garda car, introduced to cover exceptional circumstances where a person had not completed the necessary advanced driving course. We now find that thousands of gardaí are driving Garda cars with "chief's permission" without having done the necessary course. What was introduced to cover exceptional circumstances has moved towards becoming the norm. I would not want this to happen in the case of search warrants. That is why amendment No. 35 proposes a monitoring provision, whereby a schedule of such warrants——
We will come to that amendment.
I mention it in passing. This would form part of the monitoring of such exceptional circumstances in the issuing of warrants. Although it need not be the one I have provided for, we all agree that it should be done only in exceptional circumstances. Monitoring, control or recording of warrants issued in such circumstances might be one way to ensure the intent of the legislators would translate into practice and continue to be practice in the years ahead.
I want simplicity and clarity on the expiry date of search warrants. Although we mentioned a period of seven days — less in the case of a superintendent's warrant — it need not be that number in all cases.
My last point relates to the possibility of a carry-over. If the search was under way at the end of the warrant period, provided the member had commenced the search before the time of expiry and within the limits of my amendment, it would not be aborted. If a member has to leave without completing a search, vital evidence could be lost or destroyed. It is analogous to the application to a judge for the continuation of a detention order. That is the approach adopted in my proposals on section 5. I am not sure if we have time to go into detail——
We will return at 2 p.m.
I will respond briefly. I share the Deputy's concerns. There must be judicial control in the substantial interference with people's rights in the making and execution of search warrants. The only issue is whether it is legitimate to depart from them in an emergency. In the case of the DPPv. Peter Byrne, the Court of Criminal Appeal has been strong on the issue of judicial control in the granting and execution of search warrants, a point on which I need no persuasion.
I have considerable sympathy for the point that the emergency measure being advanced on foot of the report of the group chaired by the late Mr. Eamon Leahy should not become the norm. The crucial question is how we can prevent that from happening. To put the matter in context, subsection (5) of the section to be inserted reduces the life of an emergency warrant to 24 hours. I also take the point that if we make a judge eligible to grant a warrant by modifying the outcome of the Dylan Creaven case, the number of emergencies should be significantly less. If at the weekend a person who has just committed a murder returns to his or her house and it is believed he or she will wash his or her clothes and have a shower, to return to the search point gardaí will have to locate the relevant judge — perhaps he or she might be on the golf course — to arrange an emergency sitting. With the best will in the world, this could take two or three hours. In most cases such a period will not be relevant but in some it is vital that gardaí act faster. We must also remember that under the Criminal Justice (Drug Trafficking), Criminal Assets Bureau and Offences Against the State Acts, there are exceptions that allow for garda-issued warrants to operate in the context of the proportionality of the seriousness of the offences involved.
Deputies are asking me to address the question of whether, where this is brought forward as an exception, it will become the norm. I note that Deputy Jim O'Keeffe is proposing in later amendments that we somehow retrospectively investigate each case but I am not sure for what purpose.
This power is provided for in other legislation, including the Criminal Justice (Drugs Trafficking). Does the Minister know the extent to which it has been used?
I can request that information. From my experience as a practising barrister, it was a common occurrence for the Garda to issue warrants for scheduled offences under the Offences Against the State Act. I am unable to state what the position is in regard to the Criminal Assets Bureau or Criminal Justice (Drug Trafficking) Acts. It would not be practicable if one was keeping a suspected drug trafficker or pusher under surveillance, had reason to believe he or she was located in a particular house and in possession of a large quantity of cocaine which was about to be handed over for cash, to contact a judge at that stage.
We will return to this matter this afternoon.
We are resuming our consideration of amendment No. 32. Does Deputy Costello wish to respond?
I take on board what the Minister said. I am not sure that he is convinced of the need for the very dramatic change proposed in the issuing of search warrants which will allow a Garda superintendent to issue a warrant in circumstances where there is a sense of urgency and a need for its immediate issue. One reason is I have seen no figures or statistics that show that a change is warranted. Neither am I aware of any demand from sectors of the Garda Síochána. Naturally, there is a general wish in the Garda to make life as simple as possible for gardaí. However, there is no evidence that they have been impeded to a great degree in carrying out their duties because they have lacked the facility we are now proposing.
Deputy Jim O'Keeffe's amendment which I hope can be taken on board would provide for extra flexibility. The drug trafficking legislation to which the Minister referred provides for such a facility in the context of drug barons and the Criminal Assets Bureau, as does the Offences Against the State Act in the context of subversion. Nevertheless, there is a requirement on the Garda to justify this course of action and show why it has had to dispense with the normal procedure and avail of a search warrant issued by a superintendent rather than going to the District Court. Under this legislation, a Garda superintendent is free to issue a warrant and it is necessary only that he or she is satisfied that it is necessary for a proper investigation and that there is a sense of urgency.
The nub of the issue is the danger that unless there is judicial control or third party scrutiny, this process will be open to abuse. In a Garda station where only gardaí are in charge and they effectively deal only with suspects, the situation is very much an adversarial one. It was for this reason that provision was made for video and audio recording of interviews.
I commended the Minister yesterday on his efforts to ensure that recording equipment is installed in stations throughout the country and I am delighted to see that Dundalk is on the verge of formally receiving its equipment. However, the danger remains that, if safeguards are not put in place, corners will be cut for the sake of pursuing successful investigations. I cannot identify the safeguards in this instance. Anybody at or above the rank of superintendent may issue a warrant upon deciding that one is needed immediately. That is the context in which we are providing this substantial power. A warrant will be limited to a period of 24 hours but a similar limitation applies in the Criminal Justice (Drug Trafficking) Act. In other legislation, provisions are made specific to the offence but the provision in this instance operates across the board.
As we close one Pandora's box with the appointment of the Garda Ombudsman Commission, we do not want to open another. We allowed the Garda to investigate complaints against its members in the belief that the power would not be abused, only to witness a wholesale abuse of the system. Even gardaí acknowledge that there is no credibility in the Garda complaints system as it stands. Now we are about to allow gardaí to issue themselves search warrants. The measure is couched in language that seems to ensure that warrants will only be issued where they are necessary or urgent. What, however, is one superintendent's sense of urgency? Every investigation has a sense of urgency about it and every search warrant issued could easily be justified as being urgent. Gardaí will argue that a criminal could not be allowed to remain free or that an investigation had to be hotly pursued. There is a danger that this could become such a valuable tool to the Garda that its use will become the norm rather than the exception. Will the Minister indicate how the measure can be worded so that it will remain the exception? Will he provide statistics to indicate whether the pursuit of crimes was delayed to a significant extent by the issuance of warrants by District Court judges, other than in circumstances that are specifically exempted in this regard?
Most Garda stations can make rapid contact with a District Court judge when warrants are required. I remain to be persuaded that the law as it stands does not cover the eventuality of an inaccessible judge. The Minister referred to the example of a murderer taking a shower to clean off evidence but, while I am not an officer of the court, I understand that common law provides that a premises can be searched without a warrant in the event of interference with evidence of a crime. Where legislation provides that a superintendent may issue a warrant, the power to do so is usually granted in circumstances in which it is impracticable to apply to a District Court judge. Even that is not covered in this section because it is left to the superintendent to make the decision. The preference of various groups that made submissions in this regard is that there should be judicial control over the issuance of search warrants. Concerns were also expressed with regard to the provisions in other legislation, such as the Criminal Justice (Drug Trafficking) Act and the Offences Against the State Act, as amended, for the issuance of search warrants by Garda superintendents.
A situation could arise in which a superintendent issues and executes a search warrant because there is no restriction in this regard. Some members of the Garda Síochána have been involved in that type of skullduggery in the past and, although the Judiciary is not infallible, it is at least a separate and independent mechanism which can provide a degree of scrutiny. We should be more careful in our consideration of this matter. I would prefer that the Bill be withdrawn but, if it is to be passed, the legal framework suggested by the Human Rights Commission should be developed so that adequate safeguards will be put in place.
Which amendments are we discussing?
We are discussing amendments Nos. 32 to 34, inclusive. We have not yet reached amendment No. 35.
This has been a valuable discussion, on which I want to reflect. There could be circumstances where a hearing before a District Court judge would be impracticable, but because such circumstances occur infrequently, this should not mean there should be a general licence to circumvent the need to secure judicial authority for a warrant. If we are widening the number of judges who would be capable of making an order, I will consider the idea of whether oral authority may be given to a superintendent which would be confirmed later by a district justice; in other words, the superintendent could contact a judge stating that, as it would not be practical to wait two or three hours to raid a premises, he or she be given oral authority to proceed with the raid and that the hearing would take place after the event. That is a possibility.
That might be a compromise.
Within half an hour one can make contact with a judge in Dublin. However, if one is in Castlegregory and the judge for the district lives in Nenagh and on a given weekend no judge is to be found within a 50 mile radius, that is a different ball game.
Would there be a code of practice for judges and a list of questions that would have to be asked by a judge when he or she was contacted by telephone? Is there a training programme for judges in order that, effectively by telephone, they would ask the questions they would ask at a hearing?
That is another possibility. This is likely to be the subject of judicial interpretation. I do not want to have such a measure struck down as unconstitutional on the basis that it is too broad and that there are not sufficient safeguards. What really worries me is that the Judiciary might take the view that this provision went too far and did not provide for checks and balances.
The suggestion is that we would have that level of judicial or third party scrutiny.
Deputy Jim O'Keeffe suggests the ombudsman but that would be almost making this commonplace. The Garda Ombudsman Commission is in place to investigate Garda misbehaviour.
That would be one interpretation, but the reason I proposed the amendment was to try to ensure it would not become commonplace, that there would be a record.
May I ask the Deputy to hold off because there will probably be substantial discussion on the amendment?
We are all of the one mind, that as far as possible search warrants should be issued by judges, on application by a member of the force. We are also of one mind to ensure the restrictions now imposed as a result of the Dylan Creaven case will be loosened and that judges will be able to hear such applications and sign such warrants more easily than heretofore. The Minister is talking about making it easier, in that an application could be made to the judge over the telephone.
In cases of urgency.
Yes; it would be followed by a personal application.
It would not necessarily have to be made in court. It could be made in writing, by e-mail, orally over the telephone or, as Deputy Ó Snodaigh suggested, by text message and a reply could issue. With modern telecommunications judges are virtually contactable at all times.
The actual conversations in relation to it could be recorded.
The Garda station has the equipment to record the conversation.
The Minister has given an undertaking to look at the matter.
I have a feeling that by catering for exceptions, I may be creating something reasonably commonplace. When we go back to the exception we provided for the Judiciary in regard to the ten year sentence, we discovered it had become the norm. We have to look around a few corners.
Should the Minister bring forward an amendment in that regard, will he give good notice to the Opposition in order that it can prepare a response?
I need to talk to the Attorney General about this, as well as talking to him again about the Dylan Creaven case.
The changes we make should not just apply within the confines of the 1997 Act. We must look at the overall picture.
As well as the broader question of jurisdiction to make orders.
If we make changes in respect of search warrants, those changes should apply generally across the board rather than to the Criminal Justice (Miscellaneous Provisions) Act 1997 only.
If I am introducing exceptions, I do not have to widen them all over the place.
I am worried that there would be a dual system of search warrants. It is important to have simplicity and clarity.
I want to look at this concept. I am conscious of what the Deputies are saying and have sympathy for their viewpoint. However, I am equally convinced there must be cases in rural Ireland, where to require a personal meeting between the Garda Síochána and a judge before a search warrant could issue, could involve a five hour delay.
Gardaí have told me about the difficulties encountered, particularly at weekends, when a judge is at home, as home can be anywhere and he or she is not available in rural areas.
This matter will be discussed again in detail on Report Stage.
The Minister has come up with a reasonable solution. Deputy O'Keeffe has suggested a broadening of the role and greater flexibility for district justices in their area of jurisdiction. With modern telecommunications, imposing a requirement of face to face contact is not necessarily the only way to proceed. The Minister undertook to consider this matter.
We will await what will spring forth.
If the Bill was to fall on this issue, the Minister would lose the opportunity to introduce the amendments for which we have been waiting for years.
I would quickly introduce an alternative Bill.
The position of those of us on this side of the House and the Minister — we believe it might also be the position of the Supreme Court — is that if there is to be an exception, it must be tied down as tightly as possible and we must insist and ensure it is an exception.
On that basis, is Deputy Costello withdrawing his amendment?
Yes, on the basis that the Minister will inform us well in advance of Report Stage of any alternative structure.
I move amendment No. 34:
In page 10, line 33, to delete "the need" and substitute "a need".
Before we proceed, Deputy Costello is seeking confirmation that he will receive reasonable notice of any changes the Minister may be considering.
I will do so.
I move amendment No. 35:
In page 10, between lines 39 and 40, to insert the following:
"(4) A schedule of warrants issued under subsection (2) of this section shall be furnished to the Police Ombudsman Commission, or such other body as the Minister may prescribe from time to time, at intervals not less frequently than once every six months, and the Police Ombudsman Commission shall, annually, compile and submit to the Minister, a report on each such warrant, stating the following:
(a) the date and serial number of each warrant;
(b) the place to which that warrant applied;
(c) the Member of an Garda Síochána who issued the warrant;
(d) the specific circumstances of the case;
(e) the circumstances that gave rise to the issue of the warrant;
(f) what reasonable grounds there were for suspecting that evidence of, or relating to, the commission of an arrestable offence was to be found at the place referred to in the warrant;
(g) what evidence, if any was recovered; and
(h) if, in the opinion of the Commission—
(i) the warrant was necessary for the proper investigation of the offence concerned,
(ii) the circumstances of urgency giving rise to the need for the immediate issue of the warrant would have rendered it impracticable to apply to a judge of the District Court under subsection (1) for the issue of a search warrant, and
(iii) such a warrant was justified by the specific circumstances of the case.".
This amendment fits into the same category as previous ones. Rather than seeking to create unnecessary paperwork or a new body, the amendment offers one possible way of highlighting that a superintendent may only issue a warrant in exceptional cases and would provide that a schedule of such warrants should be submitted to, say, the Garda Ombudsman Commission and the Minister. It is one possible way of reinforcing that on which we are all agreed, namely, that warrants may only be issued by a superintendent in exceptional circumstances. Such a monitoring mechanism would ensure that is what would happen. I am prepared to accept this may not be the perfect answer but it is another possible way of achieving what we want.
Given our earlier conversation, I would prefer not to get into the nitty gritty of the amendment which would provide only one approach to the problem. I appreciate its purpose is to provide for an independent monitoring agency but I am not immediately attracted to the idea of involving the Garda Ombudsman Commission in an area which is new to it. It will have a great deal of work to do on its own account without vetting this material.
While this might be appropriate if a superintendent was issuing a warrant, it would not be necessary where there was judicial scrutiny of an application for a search warrant.
I do not envisage this provision being used in the case of warrants issued by judges. It would apply only in the context of subsection (2) where a warrant is issued directly by the Garda Síochána.
Amendments Nos. 35a, 36 and 36a will be discussed together.
I move amendment No. 35a:
In page 10, lines 47 to 49, to delete all words from and including "within" in line 47 down to and including "warrant" in line 49 and substitute the following:
(a) one week of the time of issue of the warrant, or
(b) the time limit specified on the warrant,
whichever is the sooner".
This amendment relates to subsection (4)(a) which reads:
(4) Subject to subsection (5), a search warrant under this section shall be expressed, and shall operate, to authorise a named member, accompanied by such other members or persons or both as the member thinks necessary—
(a) to enter, at any time or times within one week of the date of issue of the warrant ...
We are operating on the basis that all warrants will be issued for a period of one week. It is possible that a judge could issue a warrant which would be valid for less than this. The legislation should clearly state the powers under the warrant only apply for the length of time for which the warrant is valid.
Arising from our discussions before lunch, I have discussed with my officials the possibility of stating "warrants shall bear their expiry date".
That would be the best outcome. It would be best if warrants contained an expiry date, although some technical changes may be required to meet this.
What is the current situation in relation to warrants? Can they be granted for a particular length of time?
It depends on the statute under which they are issued. Statutes usually provide for the length of time during which they can be executed.
Is the most commonly used the seven day warrant?
Yes, that is the norm. I have never studied the matter comparatively but I am informed that under the Misuse of Drugs Act, the Criminal Damage Act 1991 and the Consumer Credit Act 1995, a warrant must be executed within one month. As one would imagine, great latitude is required when dealing with white collar crime as time is needed to prepare for raids and so on. A warrant issued under the Misuse of Drugs Act by a superintendent must be executed within 24 hours. Under the Criminal Assets Bureau Act, a warrant is valid for one week. A warrant issued by a bureau officer not below the rank of superintendent is valid for 24 hours. Warrants issued under the Sexual Offences (Jurisdiction) Act and the Criminal Justice (Miscellaneous Provisions) Act 1997, with which we are dealing, are valid for one week. A warrant issued under the Child Trafficking and Pornography and Illegal Immigrants (Trafficking) Acts is valid for seven days. While a warrant issued under the Prevention of Corruption Act is valid for seven days, a warrant issued by a superintendent under the Act is valid for only 24 hours. A warrant issued under the Criminal Justice (Theft and Fraud Offences) Act is valid for seven days.
It is no wonder the Garda Síochána is often confused. There is a need to tidy up this area. A good starting point would be ensuring a warrant expressed an expiry time.
Amendment No. 36a touches on an issue which has not been mentioned. I am concerned that there could be a situation where a warrant could expire prior to the completion of a search and the evidence not recovered at that point might be disposed of before the obtaining of a new warrant. This is analogous to the case I made as regards court applications for an extension of the period of detention. We should provide that where a search commences prior to the expiration of the warrant and, provided the member who obtains it remains at the scene, any evidence seized will not be deemed to be contaminated. It is a practical effort to address the possibility that useful Garda work might be spoiled for want of a half an hour.
I can see what the Deputy is driving at in that context. I appreciate his motivation. However, I am slightly worried that a person might arrive at a situation with five minutes to go and end up waiting a week. There will have to be a countervailing provision.
Does the Offences Against the State Act not provide that in a hot pursuit the seven-day limit can be breached where a search has not been completed?
I cannot help the Deputy on that point but he may be right.
The useful development in this discussion has been the opening up of many of the questions which will fall to be addressed in the context of an effective, clear and fair constitutional system to deal with search warrants. If the Minister adds the issue into the pot for further discussion, I will not press it on this Stage. One will need to assess fully what is happening. The issue is whether we should allow the Garda to continue a search beyond the time limit specified by a judge. That can only be permitted under the most stringent controls and in the most extraordinary circumstances. I am not even sure there have been instances in which the Garda has been short-taken in its searches. The matter only arose in the context of the general examination of search warrants rather than as a consequence of a case having been made to me by a member of the force, unlike the matter of District Court judges.
It is little things like this which ultimately cause problems. If they can be sorted out at outset, all the better.
Now is the time to do so.
The Minister has explained that once a search warrant is issued by a judge, it is for a minimum of one week and a maximum of one month. Professional operations suggest it should be possible in virtually all cases to get matters right in that relatively extended period of time without providing for exceptions. I believe there is a provision in emergency legislation, although I am not sure if it is the Offences Against the State Act or some other Act which establishes a precedent.
I will establish whether there is such a precedent.
Amendments Nos. 37a to 37f, inclusive, 39a and 39b are related and may be discussed together.
I move amendment No. 37a:
In page 12, subsection (1)(b), line 22, to delete “which” where it firstly occurs and substitute “which,”.
The amendments are technical in nature and we should glance over them to determine whether they would improve the Bill. If they would, let us change it. It is an opportunity to improve the text.
Are there any which the Minister can immediately accept?
The question of commas is one of house style. Whoever has gone to the trouble of telling Deputy O'Keeffe about house style does not share the house style of my draftsman. I must have peace on my side of the fence also.
As the amendments are purely technical and relate to the use of commas and the need to break up sentences, the draftsman could look at the proposals. If he takes kindly to them, we may revert to the amendments on Report Stage. I do not have a strong view on the matter, but merely wish to provide readable legislation.
I am disposed to taking on board the amendment on the elision of the words "any" and "thing".
That is amendment No. 37e. Section 6(1)(b) refers to circumstances in which a member of the Garda “who is in any other place under a power of entry authorised by law or in which he or she was expressly or impliedly invited, finds or comes into possession of anything”. It has been suggested to me that it would be a better formulation to refer to a member of the Garda “who has been in any other place under a power of entry”. I suppose it is a matter of choice. While I am not overly concerned either way, in the main we should make efforts to ensure the finished product from the legislative process is easily understood.
It is a question of choosing between different ways of saying the same thing. Draftsmen and draftswomen have to do their jobs. They train for it and we do not.
I accept that there are different approaches. In modern UK legislation the approach is to make provisions a great deal more readable rather than to observe the archaic style to which we continue to adhere. I read a paper prepared by Brian Hunt who produced a thesis on plain language and legislation. While the Minister might consider it an academic point, legislation is in place to allow people to understand and comply with it.
We would have no lawyers if that was the case.
As Deputy Costello rightly points out, legislation is not in place to provide euros for solicitors or guineas for barristers to explain it. We should aim to produce legislation which is easier to understand.
The question is whether one is a "has been" or an "I was".
Or a "maybe" or "would be".
I am almost there. Do any of my grouped amendments find favour?
Amendment No. 37e has found favour. It seeks to substitute the words “any thing” for “anything”.
I will withdraw my amendments on the basis that the draftsmen might look at them between now and Report Stage. If any of them commends itself to them, I am sure we can include them on Report Stage.
I am sure they will look at them as they have been tabled in good faith.
They are not criticisms but suggestions to them to take a different approach.
It is an attempt to be helpful.
I am fascinated by all of the references to draftsmen. Is there a school of draftsmanship? What training is involved? Should we invite them to the committee in order that we can understand what they are getting at? We need to understand the way in which they present Bills, the language they use, as well as the way they use commas, full stops and so on. Are there international standards for drafting legislation?
There are. When I was Attorney General, a manual was being prepared, but I do not know if it was ever published. The chief parliamentary draftsman who is now Chief Parliamentary Counsel was on the way to developing a standard office manual of conventions such as not using Roman numerals in chapter headings, when to use capital letters and so on.
Such a manual would be very helpful, particularly when one has to get through a raft of legislation.
If there is such a manual, it would be worthwhile getting a copy. There should be a manual for drafting amendments in the Minister's office.
As Attorney General, it was my plan to publish one, but events overtook me. I favour its publication. Those involved in King's Inns and Blackhall Place should be teaching people how to draft. As a skill, it is in great need right across the community. It can also be used as an aid for lawyers to understand legislation and why it is constructed as it is. Studying the science of drafting is worthwhile. The skills involved in drafting statutes and statutory instruments are similar. Public servants involved in drafting statutory instruments should have a manual and the capacity to do courses to improve their skills.
The current Attorney General may take up the mantle.
He may have done so already. I might be behind the times.
I move amendment No. 37e:
In page 12, subsection (1), line 24, to delete "anything" and substitute "any thing,".
I have a general query. Would material seized under the Police Property Act 1897 be retained? Can its owners apply to the court for its return? Is there a specific timeframe for materials which have been seized and will not be used in court proceedings to be returned to their owners in the state in which they were discovered? There have been cases where property was seized and when eventually returned, was not in the same state as when it was taken. Property sometimes goes missing. I was involved in a court case in which evidence, the murder weapon, went missing in the Garda station. The State had to present the evidence in evidence bags. The weapon involved had disappeared from wherever it was being held by the police. It may not be relevant to this section, but if gardaí take the time and make the effort to put a case together, the material should be available when it comes to trial. Equally, where a decision is made that there will not be a prosecution, those who own the material should be able to recover it.
The Law Society of Ireland raised an issue relating to legal documentation which is covered in section 6(2). The society raised a concern about such documents being seized by the Garda. The issue is not fully covered in the subsection. A legal document which offers legal advice might partially be covered by privilege. The rest of it might be used by the Garda. It is important that the part covered by legal privilege does not appear in the book of evidence and is not used in court. A document may not be cut up into pieces, but the Law Society of Ireland has raised concerns about documents being seized. It believes there is not enough clarity about privilege. Its letter of advice covers a number of issues. Will the Minister clarify section 6(2) for the committee?
I fully accept the Deputy's point. A number of difficulties arise in trials. In some cases an excessively conservative view is taken about the necessity to keep material pending a trial. If someone's car is the subject of a criminal incident and there are scratches on it, the owner can be told that his or her car is being taken away while a prosecution is pending. That is very unreasonable, given the inconvenience caused in depriving the person concerned of his or her property for that period. Deputy Ó Snodaigh mentioned cases where exhibits in evidence bags go missing. That happened in the Ludlow case. There is no sign of anything seized at the time and nobody can account for this. It would be reasonable for someone to think it may not be right to hold onto bags and bags of clothes in lockers for 15 to 30 years after an event. There is the question of whether we have adequate repositories to keep evidence save because, to be kind, there have been cases where drugs and drug money have gone astray in circumstance where they should not have been vulnerable to such occurrences. There are issues involved but we cannot solve them in a criminal justice Bill as they are procedural issues for the Garda Síochána. The Police Property Act 1897 applies to evidence seized, as provided for in section 6(1).
I understand the point made by the Law Society on section 6(2) but it may not be easy to extract legal advice from — or blacken — a letter which is criminal in intent or evidence of the commission of a crime. While I understand the Law Society's point of view, I am not sure what the solution to the problem is. If a crooked solicitor writes a letter to a client with mixed advice and a criminal exhortation, indicating that one sentence amounts to advice and another amounts to incitement to commit crime is not as easily done sometimes as might be thought.
There are two points, one of which concerns the secure storage of materials ceased. I am not familiar with the procedures in place. While I presume all materials are signed in by the desk sergeant, is there an independent person who is responsible for ensuring the secure storage of evidence in order that it cannot either be contaminated or go missing? It seems a lax approach is adopted in stations. In County Donegal explosives were left outside the back door of a particular Garda station for months on end. In a Garda station in my constituency €40,000 in drugs money, as well as the drugs, have gone missing. We have not heard a word about the latter case but presumably the evidence was to be used in a prosecution and its disappearance may compromise it. The safe storage of evidence is important. The Ludlow case which the Minister mentioned is also relevant.
The second point concerns evidence in connection with a coroner's inquest, for example, where somebody dies in a fatal accident while in the custody of the State; where clothes, belongings and documents are seized and retained by the Garda and the family must go to court to get them back. That is going a step too far because the family may want to have the evidence tested forensically. There is a need to introduce regulations and guidelines providing for the release of documents seized by the Garda without the need to go to court. It may be different where the evidence sought is essential for a prosecution but where no prosecution is envisaged, it seems strange the Garda would retain it for extended periods of time and refuse any request to release it.
There are problems in that regard but they are not easily solved. Matters could get out of hand if I were to authorise the building of a warehouse, with gates, a repository and lock-keeper, near every significant Garda station for the holding of evidence.
With a security firm to keep an eye on it.
On the other hand, there are such rooms in some of the more modern stations. I presume the process of deciding what should be kept is not an exact science. There may be cases where, for example, inquests are delayed and it may not be apparent to the Garda that an inquest of any significance will take place. While the killing of Mr. Séamus Ludlow was clearly a homicide, one can have cases where a person is knocked down by a car in which there are arguments about whether it was dangerous driving causing death, whether the driver deliberately drove over the person concerned, or whether the driver was simply drunk and never even noticed the person concerned. The question of whether one should keep the clothes of all those knocked down for years on end is a difficult one. Off the top of my head, I do not possess an easy solution to the problem of what should be kept and what should not. One would need to build massive warehouses to keep all the stuff which theoretically could be kept.
There are also simple issues such as at what point should cars — old bangers — used in getaways in bank robberies be sent to be melted down? Who should make the decision?
There are many complexities involved.
There are, but if there are no guidelines from on high, there will no doubt be a confused response from Garda station to Garda station. In general, I presume the arresting garda keeps the material in his or her locker.
They no longer keep case exhibits in their lockers. Case exhibits are frequently placed in storage rooms.
If there is one. Some day somebody will ask the following questions in court. How did the garda secure the items of evidence in question? How can he or she be certain they were not interfered with? Where was the evidence held? Was it under lock and key? Did somebody sign for the evidence? Can the garda guarantee that the evidence is that which was seized?
I take the Deputy's point. However, if one was to have a ledger for every item signed in and out, one would need to assign staff — I presume it would be civilian staff who would do this work — to act as gate-keeper and filing clerk for the items in question.
Should there be a structure in place, whereby, although the Garda conducts the investigation, the Minister provides for civilian staff to deal with the disposal, storage and indexing of exhibits?
While I take the Deputy's point, we must also be practical. I would have to set up a vast bureaucracy to look after exhibits.
This gives rise to the valid point which I can see rearing its head in respect of another issue in which I am involved as to who has responsibility for such goods and who can vouch for their safe and secure custody over a period of time. It is not an arcane academic point.
Not by any means.
I am not sure whether that issue has been raised in the courts but I would be surprised if it has not.
It has, on many occasions. No doubt the chain of evidence is a live issue, particularly where contamination is an issue. For instance, in the case of a computer, subsequent interference would be an issue. While it is all very well to see this from the point of view of a busy Garda station in Dublin, the position is slightly different in, say, Bantry Garda station where one cannot send exhibits to Dublin halfway through an investigation to be stored in a big warehouse and then send somebody up to bring the computer back down to look at it a second time. There is give and take. One has to be practical.
Does the Minister recognise the disparity? We have discussed how the scene of a crime will be preserved to make sure nobody interferes with the evidence. However, when the evidence is seized, no statutory structure is in place for its retention.
For instance, if a shoe was found at the scene of a crime with blood on it, to take an O. J. Simpson type event, where it was kept, sealed and identified would be a live issue. Time wasting is a feature of many criminal trials. For example, proof must be provided that Garda Costello had the evidence in his possession until he gave it to Garda O'Keeffe who, in turn, gave to it to the forensic science laboratory which returned it on a particular date. Therefore, the trial must go through the chain. Frequently, books of evidence provide for elaborate chains of evidence. As somebody who has drafted such books, one can get a headache at 3 a.m. trying to work out where exhibit 37 has gone.
When we dealt with the criminal justice review, the Minister said he would try to arrive at a position where both the defence and the prosecution agree on certain issues. Chains of evidence should be agreed to reduce the time a case takes in court. Specific evidence should also be agreed. For example, there is a shoe with blood on it and that is not in dispute. It should not necessarily be retained once enough photographic and recorded material is taken.
We are moving off the point, although reference is made in the section to the seizure and retention of evidence. It is a matter for another forum.
The discussion is useful. Is there a case for providing for presumptions, unless the contrary is proved in order that where it is proved evidence has been taken into possession by the Garda, it shall be presumed to have been held in secure possession up to the time of its production in court, unless proved to the contrary? I take Deputy Ó Snodaigh's point about reaching agreement on evidence but, in the main, a defence counsel is not——
He or she is not paid to agree.
He or she is not in the business of agreeing that evidence is perfect and in order, which essentially would undermine his or her client. Very often his or her job is to look for holes in the evidence.
I thought of this also. Somebody should have to raise a basis for suggesting the evidence has been contaminated rather than have people state they put it in a sealed bag which they put on a shelf in the Garda station and that it was still there three weeks later. All this should not be necessary, unless a genuine issue arises.
It is also a significant waste of time. There are two aspects to this: time wasting in preparation of the proofs such as bringing a garda from Ballydehob to the Central Criminal Court in Dublin to prove a box was handed over to him or her on such and such a day and that he or she handed it to another garda on another date. It is costly and a waste of time. It also could lead to the public becoming incensed at the notion that somebody charged with a serious crime could get away it because the proof was not immediately available of the existence of an exhibit between 4 a.m. and 8 a.m. on a specified date. On the other hand, one cannot go too far.
It is possible to serve section 21 notices of evidence on the accused and they become evidence of their contents but it requires the agreement of the accused for this to happen. There is scope for judicial coercion of agreement, whereby, for example, the trial judge should be able to say there is sufficient evidence in the statutory declaration of Garda O'Keeffe and unless the prosecutor has a solid basis for putting intelligent questions to him, he does not need to come to court.
One cannot wait for judges to do this. We have a job as legislators. Can we provide for presumptions in law?
We can. The Criminal Justice (Miscellaneous Provisions) Bill is coming down the tracks.
Certain evidence must be stored. For example, a sum of €40,000 needs to be stored. Drugs cannot be allowed to remain in a non-secure location. Firearms must also be stored securely. There is no policy in place on secure storage.
The Deputy has a point. Further investment in evidence repositories is necessary. It is our intention to commence the building of a new forensic science laboratory. I hope that will happen before the end of the year in the Phoenix Park. This will enable the DNA revolution to come to full fruition. Perhaps, in this context, revised methods and new improved storage systems will have to be put in place.
Notice has been given that this is a serious issue which must be addressed. The Minister accepts this.
Amendments Nos. 41 and 57d are related and will be discussed together.
I move amendment No. 41:
In page 13, before section 7, to insert the following new section:
"7.—(1) The Act of 1939 is amended in section 30 by the addition of the following new subsection (7):
"(7) Where a court hearing, seeking the extension of the period of detention of an arrested person, is in session at the expiration of the period of detention, the detention period shall be deemed not to have expired until the court hearing is concluded.".".
I proposed the inclusion of a reference to the Offences Against the State Act 1939 in the interpretation section because I intended——
I will cook up a generic provision and table an amendment before the conclusion of Committee Stage with a schedule attached of instances where the commencement of a hearing for an extension will act as a stay on the expiry of the time allowed.
That is probably a better solution because my proposal was intended to cover the position following the murder of Donna Cleary. This has a wider application beyond the 1939 Act. I am more in favour of a broader, generic approach. This provision is probably inappropriate in section 7 because there is a reference to section 32 of the Offences Against the State Act. Where we should include a broad, generic reference is a matter for the Minister and his advisers.
Amendment No. 57d is associated and proposes a similar provision. If a broad, generic provision is to be included, it will cover all eventualities.
This section extends the arrestable offence to cases where the maximum penalty is not provided by statute but by common law and it would cover conspiracy.
This provides for a minimum of five years, whether under statute or common law.
Yes. At present, there is no power of arrest for common law offences where the penalty exceeds five years.
Is this for new offences introduced in the Bill?
No, in sections 7 and 8(a) the same provision is made for detention. If the common law penalty for an offence is over five years, one can be detained in a Garda station.
Is this being extended to include conspiracy?
Amendments Nos. 43 and 56 are related and may be discussed together
I move amendment No. 43:
In page 13, line 13, to delete "or otherwise" and substitute "or elsewhere".
References are made to somebody being arrested without warrant in a Garda station or otherwise. The reference should be "or elsewhere".
Amendments Nos. 43a, 45 to 47a, inclusive, 49, 51 and 52 are related and may be discussed together.
I move amendment No. 43a:
In page 13, line 23, to delete "section" and substitute "section,".
Some of these amendments are an attempt to improve the drafting of the Bill.
Will we ask the Parliamentary Counsel to examine them?
Yes, I would be satisfied with that.
Amendments Nos. 54, 61, 85, 86, 88, 89 and 90 are related and may be discussed together.
I move amendment No. 54:
In page 14, line 1, after "detained" to insert the following:
"in a garda station which is equipped for video and audio recording of interviews".
I raised this matter previously. This legislation extends powers of arrest and detention and periods of detention. Many people will be interviewed in Garda stations for more extensive periods than hitherto. A person may now be taken to a Garda station for the purpose of questioning without arrest. This period has been extended to 24 hours, or 32 hours where there is a rest period. We have made progress on video and audio recording and recognised the necessity therefor. We referred yesterday to the report by Judge Barra Ó Briain, which recommended that all Garda stations should be equipped with audio and video equipment. We must ensure that witness statements are recorded so that, in the event of later retraction, there is evidence that they were given freely. Recording would also protect a suspect from making a statement under duress and it would further protect the Garda Síochána from allegations relating to ill-treatment of people in custody, which are common. It would introduce a degree of transparency to the interview procedure in Garda custody. The Garda Síochána prefers to refer to "interview" rather than "interrogation". A mandatory video and audio record is required to be presented in court at any time. The Minister prides himself on introducing such equipment. He stated that 96% of Garda stations possess this equipment.
No, I said that 96% of statements are recorded.
Can the Minister state the percentage of Garda stations that are equipped with recording facilities? Certain Garda stations are seldom used for interviews but those with designated interview rooms should have recording equipment installed. What is the purpose of installing this equipment if we have no clear policy on its use? Judges are now enunciating policy and stating that they will not accept statements as evidence unless video recording shows they were made under certain conditions. Why should we, as legislators, not make it known to members of the Judiciary what we think of the procedure rather than letting it come second hand from them? Amendment No. 61 goes down that road where it states, "...only if the exceptional circumstances of the case so require, a statement by a person during a formal interview in Garda custody shall not be admitted in any prosecution against that person unless the interview is videorecorded and such videorecording is produced at the trial". That is the last step. All interview rooms should be equipped, all interviews should be video recorded and evidence should be accepted only when it has been video recorded, except in exceptional circumstances. We should include this in the legislation and this is the appropriate time to do so now that the Minister has produced the Garda Síochána Bill and included some safeguards such as the inspectorate, the ombudsman and certain managerial structures. The Criminal Justice Bill is part of the overall work of the Minister. It is the other side of the coin. While the powers of the Garda are being concentrated on, there is no statutory safeguard in this area.
In the past the Garda has relied too much on the interview as a way of making progress in an investigation. In the past few days of the Morris tribunal we have read about the procedures used by Detective Sergeant John White, how the results were expected to be got and what was required to get them. There has not been enough emphasis on the forensic side of investigation. With the new laboratory, the forensic side of an investigation must be critical. With the level of forensic evidence that can be ascertained on a crime, we can do virtually anything. It would be more professional to emphasise forensics and not the traditional style of confessions and interviews, which resulted in the Judge Barra O'Briain committee 25 years ago and the current Donegal saga of the abuse alleged by Ms Róisín McConnell and Ms Katrina Brolly in the conduct of an interview. A frightening approach was taken and it was admitted that a certain type of language is part of the Garda interview system. We should not encourage that but should have proper interviews and use the interview process to its best advantage without its being questioned.
We have often seen a trial within a trial, when the defendant questions a statement and two weeks are taken up while the jury waits for a decision on whether the evidence taken in an interview will be allowed in court. These issues must be dealt with and one of the ways to do this is to accept my amendments on mandatory audio and video recording and to have that as the means by which evidence will be accepted in court.
A number of my amendments also relate to video recording. Does video recording cover other visual recording such as DVD and digital recording? It is strange that while this type of equipment is becoming cheaper, an older system is being implemented in the Garda stations. The newer systems might be more appropriate. While I welcome the fact that 96% of interviews are recorded, we need to record more than the interviews. If we want a system that would protect the Garda from allegations of mistreatment, we should have some type of recording or camera system in Garda stations so that allegations of brutality in the corridor leading to the cells or interview rooms cannot be made. In this building there are cameras in the ceiling. These can be set to record and be overwritten over a week. In some cases they are not recorded onto a hard tape but onto digital files. Some security companies sell devices that allow people to monitor their businesses from their home computers. Technology has advanced since video recording was first mooted and we should continue to update to ensure the best technology is available, in particular for the interviewing of suspects.
This section deals with increases in the periods of detention and I will return to that. If we are guided by some of the allegations that have emerged, particularly in Donegal, about how suspects were treated, everybody agrees we must ensure that type of abuse of suspects and witnesses no longer happens. Prosecutions and detection rates are based on good Garda work, hard slog and forensic evidence. I welcome the Minister's announcement of the forthcoming forensic laboratory. More Garda resources should be diverted that way to ensure we do not lose convictions due to the lack of proper forensic laboratories. It is welcome that we are getting a new modern laboratory and I hope it will be big enough to accommodate whatever expansion is required in the future because this is a developing science. While I do not believe everything I see on television shows such as "Cold Case", forensic science has taken leaps forward and we must do everything possible to ensure the Garda has the resources. One of the resources is video and audio recording. My preference would be that every part of a Garda station should be monitored, given there have been proven cases of abuse in Garda stations. Members of the public who have not been convicted of anything have been assaulted by rogue elements in the Garda and too often those bad apples seem to be concentrated in certain Garda stations. It would be in the interests of gardaí if more of the station were monitored.
The purpose of amendment No. 86 is to ensure provisions are made by providing that the Minister shall make provisions rather than that he may make provisions. Providing that the Minister may make provisions allows for the possibility of the Minister not bothering to make regulations in the future.
Subsection (c) in amendment No. 88 covers the deletion of subsection (2) which is sought in amendment No. 89 and provides for sanctions in the regulations for any breach of these provisions. It is to ensure that gardaí who do not comply with the regulations will not get off scot free, that there will be a series of sanctions and that gardaí will understand from day one that they will not get away with the type of activity, sloppiness and abuse that some were involved in when interrogating suspects up and down the country.
The amendments refer to the taking of statements, the amount of time a person can be detained, the extension of such time, and the equipment available in Garda stations, in particular video and audio recording equipment for interviews. Deputy Costello rightly pointed out that the Ó Briain report focused on this many years ago. It is only now we are catching up, and we have caught up substantially.
To give a rural viewpoint, it might not make much sense to put video recording equipment into small Garda stations. The Garda headquarters where I live is in Bandon and there is a ring of small stations around it, including Innishannon, Kilbrittain and others. We are a very law abiding people down there, but if there are serious crimes they are brought into the district headquarters. Intensive interviewing does not take place in small stations. I assume all divisional and district headquarters are now fully equipped.
What about Dundalk?
That puts a hole in that argument. It would be helpful if we knew how many divisional and district headquarters have yet to be fitted with recording equipment. If we are talking about legislating for video recording we need to know where the gaps are. I like the idea behind the amendment but I am fearful that the lack of practical arrangements on the ground might cause problems with interviews. Extra information would be useful.
In regard to the length of time for which people can be detained and the extension of that time, I understand questioning of a suspect must be suspended at midnight unless the suspect waives this entitlement. Does that have any implications in terms of extending the time a person can be detained?
Trial judges obviously examine carefully the statements given by those in detention. There is a concern that trial judges should exclude statements in respect of which there is the slightest doubt as to their voluntary nature. How do we take on board that from the point of view of legislating to have as watertight a situation as possible?
I am open to listening to the Minister's views on this issue and perhaps I can come in again once I have heard his response.
The proposal to extend 12 hours to 24 hours under section 4 of the 1984 Act and excluding the period from 12 midnight to 8 a.m. means in effect that the 24 hour proposal may not be so different from the 48 hour recommendation that the late Eamon Leahy originally proposed. Under the 24 hour proposal, depending on the time of day one is brought in, one could, with two eight hour sessions for sleep, end up being in the station for 40 hours in total, given that the clock stops for the eight hour rest periods. That is why I thought the 48 hour proposal could be brought down to 24 hours.
One could be 40 hours in the station.
Under this proposal one could be 40 hours in the station if one were brought in at a particular time of day, taking into account the rest periods.
I obtained my advice from a solicitor.
I make the point that one could spend that amount of time in custody and the rest periods that are provided for are excluded.
In regard to mandatory video and audio recording, Deputy Ó Snodaigh used the term "video" in the sense in which I would use it, as different from DVD. However, video includes DVD for the purpose of this legislation. The Deputy is right that at the moment the tendency is to use old-fashioned tapes, the reason being that they are like negatives and photographs, considered to be more secure from alteration than a digital record. That is an issue. One can do things with DVDs that one cannot do with tapes. From the point of view of storage, replication and so on, DVDs clearly have a huge advantage. Perhaps in the future technical advances will make it possible to tamper-proof DVDs which are more practical in that they can be communicated from a distance, and if a judge wants to put certain portions of a recording to a jury they can be cut and edited in a satisfactory way.
In a jury trial, if, at the 11th hour, the accused admits his or her guilt and makes a confession, unless someone contests the fact that a statement was made, there should not be a need for members of the jury to listen to 11 hours of testimony relating to matters such as the weather, sports, a person's background, etc., and watch someone stonewalling.
I am anxious about this matter and I intend to consult the Judiciary in the coming weeks in respect of the Judges' rules. The latter were laid down in 1912 by a committee of judges at the request of the British Home Secretary. The committee attempted to put in place a system based on the technology that then existed so that information provided in interviews could be rendered in writing and in a form which people could sign or refuse to sign. Accused persons were also warned that they were not obliged to say anything unless they wished to do so but that anything they said would be taken down in writing and might be given in evidence. With long detention periods, it was never really the case that information relating to the team with which someone used to play football, etc., was recorded. What emerged were cursory notes, recorded by gardaí on half-sheets of paper, relating to information provided during long interviews. Gardaí were often asked what happened during interviews because three pages of information were not much to show following eight hours of interrogation and they would state that the rest of what occurred involved general conversation. Everyone was left wondering what the latter meant.
As a safeguard to accused persons, it is important that an audio-visual record of everything that happens should be kept. However, this does not mean that, during a trial, all recorded material must be considered or viewed at length by a jury. That simply does not follow. The purpose of a book of evidence is to state that in the course of an interview Joe Bloggs admitted that he did A, B and C, that there is a video recording of what he said and that there is also a record of the words he used at the relevant period. One can put down an excerpt in a book of evidence as long as the person has the option of stating that he or she wants to see more of that in order to prove that he or she was coerced or that an improper threat or inducement was offered to him or her to make a statement. At that point, one can go back over the material and check the position.
It is clear that the Judges' rules must be revised because it makes a nonsense of the law to proceed with two parallel systems, one in which what actually happens is recorded in minute detail and the other in which gardaí are obliged to act as stenographers and keep track of conversations in which cut-and-thrust discussion occurs in respect of what did or did not happen on the occasion of an offence being committed. As regards the latter, gardaí are supposed to give a fair and truthful account, in written form, of what a person stated.
If one took the view that the Judges' rules represent guidance from the Judiciary as to what constitutes admissible evidence of voluntary statements for the purposes of trial and due course of law, one might say that is a judicial issue. One might also say that the Judges' rules exist only because a consultative process took place in 1912 and that the matter could have been dealt with through legislation. One could take a third view, that it is an area of mixed confidence between the Judiciary and the Legislature to decide what are the rules of admissibility and what are the guidelines for the taking of statements, the preparation of books of evidence, etc. I want to consult with the Judiciary. I do not want to trespass on its territory but if it is of the view that it is a matter for the Houses to draw up the law as regards admissibility and to lay it down in statute form, I will be quite happy to accept its advice. Alternatively, there may be mixed issues on which consultation would equally be helpful.
As I stated, 96% of statements in 2003 were recorded via video. The other 4% consisted of cases where machines were not working or——
There must not have been any machines in Dundalk.
I presume that gardaí in Dundalk went to Ardee or some other nearby station with a machine. I do not know how they managed in that regard.
There was a small minority of cases where people stated that they did not want their statements to be the subject of a video record. Whereas some might be cynical about that, there are cases where, for good reason, a person making a statement might not want a video recording of it to be in existence because he or she could be put under pressure later to produce that recording to other people who are their associates or who think they can exert pressure on him or her. If there is an in-depth interview into the background of the investigation of a crime and if a detained person is asked questions such as who he or she thinks committed that crime, there are circumstances where the person being questioned would not want, in effect, to be in a position to be blackmailed into producing it to other people who would use it or hold it against him or her. Whereas we must be slightly sceptical of a situation in which a person states that he or she does not want this safeguard to be in place for his or her interview, we must nonetheless allow that in certain circumstances a person, in good faith, might not want there to be a video record of his or her interview. Where such situations arise, however, it must be clear that the person making a statement off video is doing so at his or her own request and that he or she has not been cajoled into making it by the Garda.
Is a person entitled to decline?
A person is entitled to decline. Frequently, however, gardaí ask an individual to put on tape his or her request that the video be turned off so that there cannot be an argument in that regard. I believed that happened in the Dean Lyons case. I do not want to get sucked into discussing that case but this shows that it is not entirely notional.
As we have been deliberating for approximately two hours, I suggest that we take a quick ten-minute coffee break and return for a further hour. Is that agreed? Agreed.
We will resume consideration of the Bill.
I will obtain the figures to confirm this. Nearly all Garda stations with custody suites and where people are detained for questioning have audio-visual recording units. However, this does not mean that every station with a cell has such a unit. If a person who is drunk is brought to a Garda station, he or she may have to be held somewhere while other arrangements are made.
The most recent figure in this regard is 94%.
Is it true that a suspect may receive a copy of a video recording?
Lawyers acting for the suspect may do so if the person is prosecuted.
One hears about those involved in drug gangs showing the recordings to their friends in pubs.
They receive them as part of the trial process. They do not receive them as a right unless something else will happen. The line of questioning may be helpful to third parties.
Is there any way of stopping this abuse of the system whereby friends or fellow gang members are shown copies of recordings?
Once the recording is in the person's possession, we cannot stop them from using it. Why should suspects receive a copy of the recording if they are not being prosecuted? At that stage, the recording is treated much like the book of evidence.
Deputy Ó Snodaigh raised the matter of CCTV in Garda stations. The Garda Commissioner is very much in favour of installing this in interview rooms, corridors and public areas of stations to protect members of the force and to ensure proper order in stations. We must consider the number of stations in which we will install CCTV systems because it may be foolish to spend money on this measure in rural stations that only open for a few hours each week. The work in these stations involves processing a few shotgun licences and some passport forms for three to four hours per week and the installation of CCTV would not be required.
How many stations have custody suites?
I will have to check that because there is not a representative from the Garda section of my Department in attendance.
Is any training on interview techniques available to gardaí? Newspaper articles suggest that there is very little training for senior gardaí involved in serious interviews. Such officers seem to rely on practices they learned during their careers. Interviewing should be a major part of the training of gardaí at Templemore. Serious questions have been raised about the methods used.
A maximum of 40 hours' detention is considered the norm, The period runs from 12 to 24 hours and can be increased further when a rest period is included, which means that a person could be held for 40 hours. Depending on when one is arrested, one could be isolated in a Garda station without access to a lawyer for that period. Although one is entitled to a phone call, one may not be able to contact the individual one is seeking. This could be tantamount to duress and is another reason that interviews should be recorded and that CCTV should be installed in public areas of stations.
At present, the suspect has the option of refusing to have an interview recorded. It has taken a long time for interview rooms to be equipped with video recording equipment. I asked a question of the Minister's predecessor in 2001 and received a phenomenal response stating that either 8% or eight Garda stations were equipped with recording equipment. One of the reasons given for not equipping more stations was that suspects preferred not to have interviews recorded. It seems strange that suspects would be given that choice when the Garda Síochána has no such choice. The Minister suggests one of the reasons for this is that some suspects might be afraid to reveal information because, if recorded, it could be shown in the local pub after a prosecution. If we introduce this measure on retracted witness statements, the only way such statements will be admissible is if they have been video recorded. However, those who have declined the recording option are likely to have been intimidated because that is the only reason they would retract their statements.
We will shortly be dealing with that section of the Bill. On occasions a person arrested for a serious offence may wish to speak to the Garda Síochána at length but without a record of the discussion. If a member of a drug gang is caught with a consignment of heroin he or she may wish to have no record of the conversation with interrogators. This is not nefarious, it is perfectly sensible. If the person was fully frank, the recorded statement might get into the hands of an untrustworthy garda and the information could go further than intended.
The suspect might wish to discover the consequences of certain disclosures. I understand why someone might wish to explore the possibilities.
It would be very naive to suggest that every person who speaks to a garda always wants a full video recording of the entire interview.
We can deal with that situation. If a person does not want a video recording of the interview, we can assume that he or she does not want to appear in court either.
The majority of taped interviews are never shown in court.
We are considering that which is admissible as evidence. My amendment seeks to address this. A person could make a recorded statement but evidence in court would only include statements that have been recorded.
With a tiny number of exceptions, judicial policy is to question why a video record of a statement is not available. Gardaí tend to operate on the assumption that statements will not be accepted as evidence if these are written on half-sheets of paper and proffered for signature.
If it is all recorded, there is a faithful recording of the procedures.
A stenographer does not need to write down everything.
The judges' rules state that they must attempt to write what is said as well.
The judges' rules are antiquated in the context of modern telecommunications, modern interview practices and so on. It is time to update this practice. While they have a certain status in law, they are guidelines.
They are guidelines but there is case law to the effect that departures from them will not be tolerated unless there is an extraordinary and compelling reason for the guidelines to be ignored.
Are the judges adding to them? For example, they are more or less insisting that there should be a video recording of statements that are accepted. Will this become part of the judges' rules?
I want to find out if the Judiciary wants to update the judges' rules or does it want us to update them.
Perhaps we will return to this aspect.
Section 15(3) reads:
(a) whether it was given on oath or affirmation or was videorecorded, or
(b) if paragraph (a) does not apply in relation to the statement, whether there is other sufficient evidence in support of its reliability,
That refers to witness statements. This is the area which will cause us the greatest difficulty. The reason anyone would retract a statement is largely that they feel they would be subjected to intimidation or threat.
That does not apply to a statement made by the accused. It applies purely to witness statements.
No, it applies to retracted witness statements.
The Minister said that 96% of statements were now recorded on video and that the other 4% may not be recorded because of technical problems or whatever. I received a revealing letter from the Minister after my remarks on the motion re the instruction to the committee. The letter reads as follows:
Dear Deputy Costello,
You raised an issue relating to the availability of audiovisual equipment in interview rooms, with specific reference to Dundalk Garda station.
Firstly, the Garda authorities assure me that where a Garda station is not equipped with an audiovisual system, the person detained is taken to the nearest Garda station where equipment is available. That said, I have made inquiries with the Garda authorities with regard to Dundalk station and I am informed that a new tender is being prepared to acquire new audiovisual units to equip additional Garda interview rooms and that Dundalk Garda station is included in this plan. I am further informed by the Garda authorities that, as an interim measure, it was decided to move a recording unit from another area to Dundalk Garda station. This equipment has been installed and commissioned on Thursday 30 March last.
I raised the issue in the Dáil on 28 March. No doubt the Minister contacted Dundalk Garda station in the meantime and, by 30 March, they had installed a recording unit in the station. This is real action.
That is power.
Does this mean that Dundalk Garda station, which is one of the premier Garda stations in the country — we have been dealing with it in regard to Seamus Ludlow, and the amount of activity going on there is very large — did not have interview rooms until 30 March, which is just last week, and now there are proposals to provide these rooms?
All I can do is urge the Deputy to table a parliamentary question.
The Deputy is pushing the limits of committee work.
The Minister said that 96% of statements are now recorded and that the other 4% are not recorded for technical reasons or whatever. In other words, he is saying that they are all covered. Anyone who is interviewed in a Garda station is interviewed in a Garda room, and the 4% are interviewed where the recording did not work or whatever. Obviously there are some areas where there was no video recording.
Obviously they would have been moved to Ardee.
Does this mean that they have ordered new audiovisual units?
I think I told the committee that the commissioner wants to invest heavily in a new round of audiovisual equipment throughout the country. His plan is to have more than just one in many stations. A number of stations have more than one, but he wants to have greater availability of audiovisual units.
Is the amendment being pressed?
The Minister will consider the general area, including the judges' rules. I will come back to the issue again.
Is the Deputy withdrawing the amendment in the meantime?
Amendments Nos. 54a, 67a, 67b and 71c are related and will be discussed together.
I move amendment No. 54a:
In page 14, paragraph(d), line 11, to delete “twenty-four” and substitute “24”.
This is a drafting amendment. The person involved sent me a text message stating that the Kings Inns teaches drafting. Obviously he has been using the skills thereby acquired in drafting some of the amendments. He understood that the modern way of drafting would include using numerals as opposed to using letters for numbers. He suggested that I should table amendments that would cover this aspect, which appears to make sense.
In amendment No. 71c, Deputy O’Keeffe is proposing to delete “twelve months” and substitute “3 years”. Is there a reason for this or is it a typographical error?
I will check that.
Does anyone know with what section 4(2) of the Criminal Justice (Forensic Evidence) Act deals?
I have not fully briefed myself in regard to that part of the Bill.
It provides that every record identifying the person from whom a sample has been taken shall be destroyed after a certain period. What we are dealing with here is the destruction of records and samples relating to persons who are detained.
Is it unlikely that an extension will be requested?
It probably is unlikely.
I would be inclined to be in favour of the retention of samples. This is a major and serious issue and I do not want it linked to a merely technical approach.
We will deal with that separately.
We should deal with it separately in its own place. There is a strong case for the retention of samples.
To put it in context, my proposal is that those samples should be preserved for 12 months. Deputy Jim O'Keeffe is now suggesting that they should be retained for three years.
We will discuss that issue separately.
It should be dealt with separately. It is a serious issue.
We are discussing amendments Nos. 54a, 67a, and 67b.
Amendment No. 54a is a drafting amendment involving the use of numbers instead of words. With what other amendments are we dealing?
Amendments Nos. 67a and 67b, in which the Deputy is proposing to insert numerals instead of spelling out the word.
The same applies. They are drafting amendments.
I wonder whether different teaching methods apply in the Law Society and the Bar Council.
It is part of the general approach to make our legislation more readable.
I cannot offer any view. There used to be a rule of thumb that figures up to ten should be written in words and that those above ten should be written in figures. However, the forms "twelve" and "twenty-four" are used in this section so I am completely lost.
I am prepared to refer the amendments to the Parliamentary Counsel for consideration.
I will reconsider the matter.
Before we close the discussion on the amendments to this section, I wish to refer to an earlier amendment on which I intended making a point that I did not want to leave to the Parliamentary Counsel. I refer to amendment No. 43 to section 8, which refers to an arrest whether in a Garda station or otherwise. The amendment substitutes the word "elsewhere" for "otherwise". It seems a much better way of expressing it. I note that later——
I have done that.
That was the Minister's amendment. Is Deputy Jim O'Keeffe withdrawing amendment No. 54a on the basis that the Parliamentary Counsel will examine it?
This section deals with detention and the extension of the period thereof. The case for increasing from 12 to 24 hours the period of detention during which somebody can be interviewed or interrogated has not been made. In theory, this could amount to 40 hours in detention when two rest periods of eight hours each are taken into account.
I wish to clarify a matter. What are the two eight-hour periods?
If one were arrested at 10 p.m., one could be interrogated for two hours until midnight. There could follow an eight-hour period of rest. At 8 a.m., the clock would start again. One could be questioned from then until midnight. That would bring the total time of questioning to 14 hours. One could then have another eight hours' rest.
I thought only one eight-hour rest period was allowed.
No. Between midnight and 8 a.m. is always time out unless there are special reasons. At present, there is only one rest period because 12 hours' detention can never bring one fully into a second day. If the detention period is increased to 24 hours, there could be two eight-hour rest periods.
It is good to have clarity because even some of the groups that made submissions did not understand that there could be 40 hours' of detention. The Human Rights Commission mentioned that there could be 32 hours but the period is actually 40 hours. It emerged at the Morris tribunal that a solicitor encouraged one of the women to waive her right to the eight-hour rest period. A person is obviously right to try to get out of detention as quickly as possible, particularly if he or she has no case to answer or believes that to be the case. The people in Donegal believed that and ended up suffering as a result. I have not heard of any case where there was a need for an extended period of questioning. The cases involved are those in which people are being questioned for arrestable offences and obviously the emphasis should be on those. I am not alone in raising this issue. The Human Rights Commission has raised it. The Law Society, the Irish Council for Civil Liberties and a number of other practitioners have asked me directly to discover from where this is coming. Is the period of detention being extended in the hope of obtaining a few extra convictions or is it just that as laws are being amended the opportunity is being taken to crank up the hours? The case for doing so has not been made.
Prolonged periods of detention are contrary to the basic premise of the right to liberty as set out in the Constitution. They are also contrary to the European Convention on Human Rights. Furthermore, it has been demonstrated in a number of cases that prolonged periods of detention often lead to duress and, on many occasions, this resulted in unsafe convictions that were overturned on appeal. In some cases they are never overturned but there has always been a question mark that the detention had been coercive. There were also the practices by Detective Sergeant John White and others with whom he worked where he said they ignored the manual for interrogation techniques when it was updated and used whatever force or ignorance they had used in the past and that this was not just in Donegal. We need to be careful not to extend the hours of detention to allow those who have abused their power in respect of those in their custody to abuse them further. That is the reason I am adamant about CCTV in Garda stations and their perimeter and the video taping of interviews. All of these measures will ensure people are not abused in custody. In other jurisdictions, people have the right to have their solicitor present for the duration of the interview. We do not have that right here but we have the right to consult. Anybody who has been in custody will know that often the solicitor arrives but is in a rush to leave, following a quick consultation and advice to say nothing that might incriminate one. He advises one to answer whatever questions one can. After that one is back at the custody suite to put up with whatever is thrown at one.
Can the Minister produce credible research or evidence to suggest the current Garda powers are inadequate and that there is a need for the 12 hours? Why not six hours or four hours which would allow for a 24 hour period of detention, with nobody being held for longer than that? If it were for four hours, why bother to increase the time? Is the present limit of 12 hours restrictive and does it prevent cases being brought to successful prosecutions? My information is that the majority of court cases are based on evidence gleaned outside the interview or on statements made quickly following an arrest rather than when a person has been detained for a longer period.
The whole section deals with the extra powers of detention. That is another issue we have referred to in terms of the mandatory recording. In its own right the substance of what is proposed here is very substantial and moves the goalposts down the road considerably. In 1984 the period of detention was six hours which could be doubled to 12 hours, for the purpose of questioning. We are proposing to double the time again. If there are two arrest periods, the detention time may possibly be extended to 40 hours. It is hard to avoid the possibility of duress striking in almost automatically if a person is isolated in a Garda station for that period. Irrespective of whether 16 hours happens to be a rest period, the person is still put into a cell for that period and in the other period could be subject to interview.
The European Convention on Human Rights and the Constitution make specific reference to a person's privacy and his or her entitlement to a prompt hearing. As Deputy Ó Snodaigh has said the Human Rights Commission, the Irish Council for Civil Liberties and the Law Society have all expressed concerns on this matter. We do not have the safeguard of the matter being video recorded or of CCTV. Will there be CCTV in the cell where people will spend a substantial part of the time? If a person is in a cell for eight hours or 16 hours this is time when he or she is alone and could be put under duress. There is no safeguard there. What about access to a solicitor? What assurances can the Minister give that a legal adviser would be contacted for the person detained? It is difficult to give those powers straightaway without any safeguard. The safeguard in 1984 — it is hard to believe this — was that there would be a complaints mechanism for the Garda Síochána. The complaints mechanism was set up in 1987 and is the one that operates today. This was thequid pro quo. They were allowing a period of 12 hours of detention for questioning in the pursuit of an investigation and the quid pro quo was that there would be a mechanism to investigate any complaints against the Garda. We are more than doubling that time now. We are moving from six to 12 hours to 24 to 40 hours without, as far as I can see, any inbuilt mechanism to ensure abuse does not take place in those circumstances. That is a major concern.
On modern interview techniques, perhaps the Minister will come back to us on what training is available to the Garda as distinct from the old style techniques we read about daily in the newspapers from the Morris tribunal.
To answer the question raised by Deputy Ó Snodaigh, the Garda SMI report carried out some years ago suggested fairly radical changes to Garda powers of detention as follows:
Certain anomalies exist under present legal arrangements in relation to detention which inhibit the proper investigation of serious offences and which should be removed. In addition to the present powers under the Offences Against the State Act and the Drug Trafficking Act, the Steering Group recommends that the Criminal Justice Act 1984 should be amended to allow for:
—An initial period of detention of 12 hours authorised by the member in charge.
—A further period of 12 hours authorised by a Superintendent.
—A further period of 24 hours authorised by a Judge of the District Court.
—A Judge of the District Court should be able to authorise an additional period of time up to a maximum of 48 hours in relation to serious and aggravated crimes such as a grave offence involving death or grievous bodily harm or sexual assault, an offence involving kidnapping or similar extraordinary circumstances or where there are a multiplicity of complicated cases, e.g. complex fraud cases.
The reckoning period of detention should be suspended for sleep, waiting period for solicitor, reasonable consultation with a solicitor, for medical attention, or for court appearance. This procedure should not apply to detention under the Offences Against the State Act 1939 or the Drug Trafficking Act 1996.
If a person is in custody on remand or serving a sentence for other offences, it should not preclude a proper investigation of a particular crime and there should be a procedure whereby such person can be arrested or detained and the crime investigated as if he or she were not already in custody.
That recommendation was considered by the expert group chaired by the late Eamon Leahy, senior counsel.
The expert group stated:
We accept that there is a case for increasing the available period of detention of suspects to allow for the proper investigation of serious offences and we think that it is desirable that existing anomalies of the kind we mentioned are, as far as possible, removed. On balance, taking into account the requirement of the common good and the proper investigation of offences, and balancing that against the rights of suspected persons, we feel the proposed new period of detention up to 48 hours is about right, subject to our views on the offences to which it might apply, the suspension of the reckoning period and the authorisation required for the second period of 24 hours. However, having regard to the same balance of Garda needs and suspects' rights, we are not inclined to favour the extra detention period of 48 hours which is proposed, even though it would be available only on judicial authority. Any such proposal should, in our view, be supported by clear evidence of operational need to an extent which outweighs its effect on the rights of suspects and we are not persuaded that this is the case.
That was Eamon Leahy's position on the 96 hour proposal with which he was dealing at the time.
The Leahy committee also wanted to extend the 48 hour rule to a series of offences, which were illustrative only and included murder; manslaughter; kidnapping; false imprisonment; rape; robbery; aggravated burglary; burglary; defilement of young girls under 15 years; various sexual offences; offences under the Explosive Substances Act involving possession or causing explosions; offences under the Non-Fatal Offences Against the Person Act, including causing serious bodily harm, threats to kill, syringe attacks, endangerment and false imprisonment; offences under section 15 of the Firearms Act, including possessing a firearm or ammunition with intent to endanger life or to cause serious injury to persons. These are more serious offences than the five year category to which I have applied the 24 period.
We started with the SMI making the claim for a period of 48 hours, followed by a judicially controlled period of 48 hours. The Leahy committee diluted that proposal to a period of 48 hours in total but stated it should apply only to serious offences. I am now suggesting a period of 24 hours for arrestable offences. That is the progression of departmental policy on the issue.
The real question is whether 12 hours is enough. Deputy Ó Snodaigh has said evidence should be produced as to why this is necessary. People who are arrested for serious crimes, on which reports are given to me, frequently refuse to answer questions. Hours pass. While it is their right not to incriminate themselves, they clearly do so on the basis that they know they will be out in 12 hours. Therefore, they stonewall for that period. I do not know if it is right to have a system under which people feel they can simply stare at gardaí asking them questions or at a wall and say absolutely nothing for that length of time when serious offences are being investigated. However, if it is the constitutional position that they have the right to say nothing and cannot be compelled to say anything, we are in a situation where with a significant number of serious offences on which I have had to be briefed as Minister — drug offences, gangland shootings and so forth — the persons detained do not co-operate with gardaí.
The treatment of persons in custody regulations were made in 1987 under the 1984 Act. That was when the complaints mechanism was introduced. There was a three year lead-in period to the Act becoming operational. The regulations provide that an arrested person shall have reasonable access to a solicitor of his or her choice and be able to communicate with him or her privately. Where an arrested person has not had access to a solicitor in accordance with the regulations and a solicitor whose presence has not been requested by the arrested person presents himself or herself at the station and informs the member in charge that he or she wishes to visit the person concerned, the person concerned shall be asked if he or she wishes to consult a solicitor and if he or she does so wish, the provision will apply accordingly.
A consultation with a solicitor may take place in the sight of but out of the hearing of a member of the Garda. An arrested person may receive a visit from a relative, friend or other person with an interest in his or her welfare, provided that he or she so wishes and the garda in charge is satisfied that the visit can be adequately supervised and that it will not hinder or delay the investigation of a crime. An arrested person may make a telephone call of reasonable duration free of charge to a person reasonably named by him or her or send a letter, for which purpose writing material and, where necessary, postage stamps shall be provided.
There is a statutory right to a solicitor, for relatives to send a solicitor and for the solicitor to have access to a person who wants to be represented by him or her.
He or she will not be present during interrogation or interview, as in other jurisdictions. If it is proposed to extend the period by 12 hours, I doubt that it will upset unduly most of the persons who stonewall. We were talking about video recording. They would love to be able to wave a video around showing them stonewalling for that long.
The Deputy is correct that some would regard it as an extra challenge. However, I should have also pointed out that where an arrested person asks for a solicitor under the regulations, he or she shall not be asked to make a written statement on an offence until a reasonable time for the attendance of the solicitor has elapsed. This applies in the case of written statements.
Perhaps that should be amended also.
Perhaps it should be amended with regard to video recording. I do not know. The current law is centred on the business of making written statements.
Are they statutory regulations?
Yes; they were made under the 1984 Act.
They probably should be updated. I heard the Minister refer to a stamp. Perhaps the person was expected to be in custody for an extended period. The regulations provide that he or she is entitled to a stamp to send a letter when he or she is detained.
I move amendment No. 56:
In page 14, line 18, to delete "or otherwise" and substitute "or elsewhere".
Amendments Nos. 56a, 57, 57a, 57b, 57c, 58a, 58b, 58c, 59a, 59b and 59c are related and may be discussed together.
I move amendment No. 56a:
In page 14, line 30, to delete "(2)" and substitute "(2),".
They are all "comma" type amendments and concern the drafting style.
There is nothing in them other than that, is there?
They are all of a technical nature. It is an effort to suggest a new and improved, or at least a different, approach to drafting. It is a different style.
We have moved on a long way since I first entered Dáil Éireann but one of the great things is that parties are given financial and expert assistance now to an extent they were not in the past. I would have had to scrawl those amendments out by hand in the 1980s and it would not have happened I can assure the Deputy.
It shows that the facilities that are being made available to us are being used.
That is true.
Part of that use is to make constructive efforts to improve the legislative output.
It is an improvement, yes.
These amendments fit into the category of possible improvements in drafting for the consideration of the parliamentary draftsman.
Amendment No. 57d was not moved for a different reason — because it fits into the category of amendments I proposed concerning the extension of the period of time and how best to deal with it.
That is correct and the Minister is examining it on a generic basis.
In a generic sense.
It deals with the same detention structures for somebody arrested in a Garda station. It is an extension of the earlier provision.
As Amendment No. 60 is an alternative to amendment No. 59d they may be discussed together. As there is a typo in regard to the line numbers, the correct line numbers should be included. It should read “In lines 12 to 30”, rather that in “lines 20 to 30”.
That is not significant.
That is not materially significant but it should be pointed out.
I move amendment No. 59d:
In page 15, lines 20 to 30, to delete paragraph (a) and substitute the following:
"(a) in subsection (2), by the deletion of subsection (2) and substitution with the following:
"(2) A member of an Garda Síochána may arrest a prisoner on the authority of a judge of the District Court who is satisfied, on information supplied on oath by a member of the Garda Síochána not below the rank of superintendent, that the following conditions are fulfilled:
(a) there are reasonable grounds for suspecting that the prisoner has committed an offence or offences other than the offence or offences in connection with which he or she is imprisoned;
(b) the arrest of the prisoner is necessary for the proper investigation of the offence or offences that he or she is suspected of having committed; and
(c) where the prisoner has previously been arrested for the same offence or offences, whether prior to his or her imprisonment or under this section, further information has come to the knowledge of the Garda Síochána since that arrest as to the prisoner’s suspected participation in the offence or offences for which his or her arrest is sought.”,”.
Section 10 deals with an amendment to section 42 of the Criminal Justice Act 1999. The amendment seeks to substitute paragraphs in section 42 of the 1999 Act, including where "there are reasonable grounds for suspecting that the prisoner has committed an offence or offences other than the offence or offences in connection with which he or she is imprisoned".
The Deputy's amendment proposes to set out the preambular part of section 42(2) in its entirety for completeness.
It is a reordering of the provisions in order that they will be a little more obvious than a reading of the particular section is at this stage.
If one looks at the amendment, subsection (2) has been added, which makes a significant difference. It states that "A member of an Garda Síochána may arrest a prisoner on the authority of a judge of the District Court who is satisfied, on information supplied on oath by a member of the Garda Síochána not below the rank of superintendent, that the following conditions are fulfilled ..."
That is in the original section.
Yes, that is already in the section.
The purpose of the amendment is to make the section understandable. On a preliminary reading of this section one would not have a clue as to what it is all about. The amendment seeks to give some degree of clarity to the section. It refers to the fact that we are talking about a member of the Garda Síochána arresting a prisoner on the authority of a judge of the District Court, and the conditions that are to be fulfilled. It is not a technical amendment but one that fits into my approach that these provisions should be understandable.
It is semi-technical draftsmanship.
It certainly clarifies the section to a greater degree than it currently is, without having recourse to the original. It would seem to be beneficial.
When I first read that section I did not have the faintest clue what it meant.
Will the Minister consider looking at that matter on Report Stage to see if it can be inserted for more clarity?
To be honest, as I prefer Deputy O'Keeffe's amendment to mine, I will accept it.
That is a good note on which to end today's proceedings.
I move amendment No. 62a:
In page 15, subsection (1), line 41, after "conferred" to insert "on him or her".
This is a technical amendment.
I am happy to accept the amendment.
I move amendment No. 64:
In page 15, after line 49, to insert the following subsection:
"(3) An authority undersubsection (2) may be given orally but, if it is given orally, it shall be confirmed in writing as soon as practicable.”.
The authority can be conveyed orally. If so, it should be confirmed in writing as soon as practicable. Deputy O'Keeffe has tabled an amendment to this amendment, which proposes that it should be done by a member of the Garda not below the rank of sergeant.
We will now adjourn. The debate will resume on amendment No. 64.