This meeting has been convened for the committee to consider the Courts and Court Officers Bill 2009. I welcome Deputy John Moloney, Minister of State at the Department of Justice, Equality and Law Reform, and his officials to the meeting.
A grouping list of amendments has been circulated to members.
amendment No. 1 is in the name of the Minister. Amendments Nos. 3 to 5, inclusive, are related. Amendments Nos. 1, and 3 to 5, inclusive, will be discussed together.
I move amendment No. 1:
In page 4, line 16, to delete "section 6;" and substitute the following:
"section 6, or a person who assumes the duties of a holding area officer under section 11(6);”.
Before I begin, I apologise on behalf of the Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, who is otherwise engaged.
The amendments proposed by the Government are all related to the one issue. The Bill, as initiated, provides for the transfer of a person in Garda custody from the temporary custody of the Irish Prison Service holding area officer to the custody of the same member of the Garda Síochána. This could cause a problem if for some reason, such as illness, the same member of the Garda Síochána was not in a position to accept the custody transfer. Equally it limits the ability of the management of the Garda Síochána to allocate individual duties to members as may be required for operational reasons.
On the other side of the same issue, the Bill, as drafted, could also mean that the prisoner temporarily transferred to Garda custody would have to be returned to the custody of the original prison officer. Again this could cause a problem if that particular officer is not available, for example, through illness and would limit the ability of the Irish Prison Service to allocate duties to individual officers as they may be required.
As previously mentioned, this Bill is primarily intended to facilitate the effective and efficient operation of the criminal courts of justice. In that regard we are talking about Garda detainees being put only in the temporary custody of the Irish Prison Service. However, should the need arise for reverse temporary custody arrangements, for example, where particular security arrangements are needed, or because of industrial action, the Bill provides for it.
Having said that, because such a situation is not envisaged as the norm, the powers and functions of a Garda holding area officer may only be transferred to another garda with authorisation of a more senior Garda officer. This differs from normal Garda custody arrangements where there is more flexibility in terms of being in the custody of the Garda Síochána rather than the custody of a particular member. However, in the limited circumstances where a prisoner may be transferred to the temporary custody of a member of the Garda Síochána, it requires a stricter regime.
I commend the amendments to the select committee.
I welcome this clarification in so far as it would appear that a designated officer can be a person appointed either by the particular officer of the Garda Síochána or a prison governor. It refers to the wider issue of jurisdiction in terms of practice and whether it is the Government's intention that the functions currently enjoyed by the Garda Síochána in terms of escorting prisoners will now be transferred to the Irish Prison Service and put under the jurisdiction and in the hands of prison officers. That issue is still not clear because it is a matter of resources and there is an ad hoc element to it. I am sure the Minister of State or the Minister might confirm Government policy on Report Stage, as we appear to have efforts on the part of the Government to shift the functions currently enjoyed by the Garda Síochána to the Irish Prison Service, yet the Irish Prison Service is not being granted sufficient resources to deal with the issue.
I welcome the Minister of State's comments and will support this amendment.
Does Deputy Rabbitte wish to speak on the amendment?
I have covered amendments Nos. 1 and 3 to 5, inclusive. I thank Deputy Flanagan for his contribution and I will pass on his comments on resources to the Minister, Deputy Dermot Ahern.
I move amendment No. 2:
In page 4, line 39, after "person" to insert the following:
"who is lawfully in the custody of the Garda Síochána".
This is merely a drafting amendment. It seems to me that section 7 would allow for the detention of any other person. Obviously I do not think it could mean any "other person", it would have to be limited to those already in lawful detention. My amendment seeks to make plain that it refers to a person who is lawfully in the custody of the Garda Síochána.
Unless I have read the section incorrectly, I cannot see how section 7 could state "A prisoner or other person" , meaning any other person "may be placed in temporary custody".
A prisoner or other person who is lawfully in the custody of the Garda Síochána may be placed in temporary custody. This would suggest that a prisoner is lawfully in the custody of the Garda Síochána, which is the opposite of the actual position. In fact, it would constitute a material change. It would have the effect of excluding prisoners in the custody of a governor.
The Minister understands what this proposed amendment seeks to achieve, however, it creates the difficulty outlined. It is possible to avoid that problem by amending the wording to read: "A prisoner or person who is lawfully in the custody of the Garda Síochána". However, the amendment is unnecessary for two reasons. First, "other person" in section 7 clearly means a person who is in the lawful custody of the Garda Síochána. The only persons who can be placed in temporary custody under section 6 are prisoners under section 6(1) and persons who are lawfully in the custody of the Garda Síochána under section 6(2). The term "person" is used elsewhere to mean a person who is lawfully in the custody of the Garda Síochána as per section 8(2). The amendment proposed by the Government to section 9, in both cases the cross-reference to section 6(2), makes sure that a person may be lawfully in the custody of the Garda Síochána. In view of this I must reject the Labour Party amendment.
It strikes me that there is no answer to that.
That is most unusual.
How does it exclude a person in the care of the governor? I am not sure if I understand the Minister of State.
I understand it to mean that a prisoner may be physically in the care of the Garda Síochána but lawfully and legally he or she is always in the charge of the governor.
How would my amendment exclude such a person?
I am advised that such a person would not be excluded. He or she would always be in the custody of the governor so there would be no need to distinguish between that and the Garda Síochána and that legally at all times, whether such a person is with a prison officer or a garda, he or she is at all times in the custody of the governor .
I presume the Minister of State is saying that if a court convicts a prisoner and sends that prisoner to jail, once the court convicts the prisoner and the garda takes the prisoner to jail and if subsequently the prisoner has to leave jail for medical purposes or comes back to court for another hearing, once that happens the prisoner is under the control of the governor. Am I correct in my interpretation of what the Minister of State is saying?
I understand the prison officer, not the Garda Síochána takes the person to hospital or to jail. At all times, he or she is in the lawful custody of the governor.
Without wishing to muddy the waters, we are dealing with the difference between a prisoner and a detainee. A prisoner is a person who is referred to under the Prisons Act and who is directly associated with a prison whereas a person who is in lawful custody of the Garda may never have been in a prison but is a detainee. Perhaps that is the distinction to which section 6(4) wishes to advert.
I am advised that is the correct interpretation.
If the Minister of State can confirm that, I will probably be happy.
I can confirm that is the position. I am advised accordingly.
I move amendment No. 3:
In page 5, subsection (1)(b)(i), line 8, to delete “person” and substitute “governor”.
I move amendment No. 4:
In page 5, before section 9, to insert the following new section:
9.—(1) A prisoner who is placed in temporary custody under section 6(1) shall be deemed, for the duration of the placement, to remain in the custody of the governor in whose custody he or she was before being so placed.
(2) A person who is placed in temporary custody under section 6(2) shall be deemed, for the duration of the placement, to remain in the custody of the Garda Síochána.”.
I move amendment No. 5:
In page 6, between lines 33 and 34, to insert the following subsection:
"(6) Where section 6(1) applies, a member of the Garda Síochána who is of a higher rank than the holding area officer may authorise the transfer of the powers and functions of that holding area officer under this Part to another member of the Garda Síochána, and that other member shall assume those powers and functions.”.
Will the Minister of State convey my concern to the Minister for Justice, Equality and Law Reform about the McCarthy report, which makes specific recommendations regarding the concentration of courts, the numbers of county registrars and the division of courts with a view to various efficiencies? It is regrettable that the Minister has been silent in his response to these issues. Will he outline his thinking on the proposed rationalisation of court structures, numbers of county registrars, locations of registrars' offices and Circuit Court jurisdiction in the context of this legislation?
Significant progress was made in recent years in many court buildings, particularly those that housed the Circuit Court, and considerable sums were expended. The rationalisation process will involve the closure of courthouses, the withdrawal of duties from certain county registrars and the concentration of duties in other areas and that has given rise to uncertainty. We embarked on the new court term this week. I would like the Minister to state the Government's intention regarding rationalisation of court offices and the duties of registrars at an early date. It is important that should be done in the context of this legislation to obviate the need to revisit the issue by way of primary legislation in the future.
I will pass on the Deputy's concerns to the Minister.
I thank the Minister of State and his officials for attending and I also thank members for their co-operation.
