I move amendment No. 2:
In page 4, subsection (1)(b)(ii), line 28, to delete "suspected" and substitute "drug trafficking".
SECTION 2
Amendment agreed to.
I move amendment No. 3:
In page 4, subsection (1)(b)(ii), line 31, to delete "suspected".
Amendment agreed to.
I move amendment No. 4:
In page 5, subsection (2)(d), line 1, before "may" to insert ", together with a statement of the grounds which caused such officer to form the belief that further detention was necessary,".
Section 2, which is important, has similarities to section 4 of the Criminal Justice Act, 1984, which introduced the concept of detention without charge for serious but non-subversive offences. The aim was to allow a garda to arrest for questioning a person whom he suspected of committing an offence but against whom there was not sufficient evidence to justify a charge. There has always been opposition to detention without charge on the grounds of civil liberties. Indeed, the Law Society has again raised concerns that it is being revisited and radically extended in this Bill. However, there is a consensus in Dáil Éireann that drug trafficking requires the introduction of these radical measures which my party and I support.
One of the arguments made against detention without charge, even in relation to drug trafficking, is that it interferes with the presumption of innocence. I suggest that detention for questioning does not interfere with the presumption of innocence. The loss of liberty before trial is not the same as guilt. In other words, a person who is remanded in custody pending trial is still entitled to the presumption of innocence. There is the argument that these strong powers are open to abuse. It is important that when the Minister makes regulations or when we scrutinise these radical extensions of the powers of arrest and detention without charge, we ensure these safeguards are in place, in so far as it is possible to legislate for such protections. Section 2 (2) (d) provides that a superintendent may authorise further detention if he or she has reasonable grounds for believing this is necessary for the proper investigation of the offence.
Section 2 provides that a direction under paragraph (b) or (c) may be given orally or in writing and if given orally it shall be recorded in writing as soon as practicable. This is to introduce the notion that there is a procedure which must be followed when a superintendent orders that the period of detention is to be extended because a judgment has been made by the garda that this should be done. This must be recorded in writing.
My amendment seeks to make this more formal. It proposes that not just the direction authorising further detention but also the reasonable grounds for believing this is necessary should be recorded in writing. The justification for the belief that the detention should be extended should be stated in writing. This is a minor amendment but it would increase the responsibility of the person who makes the decision to extend the detention.
We are introducing radical changes to the law and we should not deal lightly with them. We are extending the period of detention to, potentially, two weeks. In this section we are giving the Garda extra powers to hold a person for a further period. This must be formalised and members of the force involved in this procedure must know exactly what they should do. Decisions to extend the period of detention should be recorded in writing as soon as is practicable, as laid down in the Bill, but the reasons for these decisions should also be recorded.
We all accept the need to extend the detention period. At present, with regard to an offence as serious as this, it appears that unless an individual is held under the Offences Against the State Act, the duration of detention can only be two periods of six hours with a rest period of eight hours, giving a total of 20 hours. Under that Act, the period of detention can be 48 hours. As the Minister pointed out, this Bill deals with stuffers and swallowers and cases with an international dimension and will ensure that the necessary powers are given to the authorities to deal with what is becoming a common offence.
I sympathise with Deputy O'Donnell but I cannot support the amendment. If reasons are to be given to the detained person, this would, in effect, disclose the evidence against that person, who, in turn, could pass it on to others. This may interfere gravely with the investigation of the offence by the Garda and the chance of implicating other, perhaps more serious, offenders who are not being detained may be threatened as a result.
I believe that the direction, as opposed to the reasons, should be given in writing within, say, 12 hours of the direction having been made and it should be appended to the custody record in the interests of certainty. However, this is ancillary to Deputy O'Donnell's amendment as opposed to impinging directly on it and I will reserve comment on this until later.
From the moment the Minister announced her intention to introduce these wider powers, I supported her because I saw the necessity for them at street level and as far as the importation of heroin is concerned. Nonetheless, where strong powers of detention are being introduced — this is, as Deputy O'Donnell correctly says, a radical extension of powers — every effort should be made to introduce safeguards to prevent their abuse. I am not convinced that the argument Deputy O'Donoghue uses is valid. A statement of the grounds which caused the officer to form the belief that further detention was necessary is not just a reasonable but a necessary safeguard.
I believe this power of extending the period of detention will, by and large, be used against minor players in the drug distribution scene — the so-called stuffers and swallowers, who are an essential ingredient in the drug distribution network. Drugs are brought into the State internally and are carried in this way from one point to another along the streets. Members of the Garda have arrested people with substantial amounts of heroin inside them and have had to release them after a period in the full knowledge that they were releasing people in possession of significant amounts of heroin which would cause great damage to other young people.
This must be stopped and one of the ways of doing so is to extend powers in the manner proposed in the Bill. I support the Minister for doing this but because of the strength of the powers and their radical nature, there should be clear safeguards applied. Deputy O'Donnell's proposal is one such safeguard. I ask the Minister to seriously consider this proposal and accept it if it is not likely to damage future investigations. It will show that the Minister intends the powers to be used specifically against people who are involved in drug distribution and that nobody can abuse such strong and radical powers.
I see the necessity for some regulation or provision requiring the Garda to record in writing that it has decided to extend the period of detention. There must be protection for the person whose liberty is being curtailed. We must also have safeguards if we amend the period of detention. I do not have a problem with that because my constituency is seriously affected by the drugs problem. The recent case in Tallaght demonstrated the extraordinary lengths to which people are prepared to go to deal with the problem. With the assistance of the Garda, they took control of the streets and the community. If ordinary residents find it necessary to take such action, it follows that the Garda should have extra powers to deal with this serious problem.
The only aspect which concerns me is that the decisions made should be recorded in writing. This will protect people because it will ensure the procedures are followed correctly. It will also prevent detentions being declared illegal because proper procedures were not followed, a situation which often arises in the courts. If oral directions are given and various events are not recorded, the legislation will be open to challenge.
The recording of the decision is the most essential part of the argument. Once a matter is recorded, it is a fact. Time is noted and the rank of the garda concerned is defined as is the offence and person being detained. The recording of such detail is essential and it should not be left until a suitable time is reached otherwise this aspect will be exploited in court. I ask the Minister to examine this. It would not be a major burden on gardaí to record their decisions in writing.
There are two aspects to this matter. On the one hand innocent people must be protected, but, on the other, this area involves the toughest of the tough. The purpose of the Bill is to deal with such individuals. However, if the name of a person who tells the interrogating garda he or she was present is recorded and the person is prepared to give evidence against the accused, a hired gun will take the witness out of the picture. What use is that information in those circumstances? When would it become available?
It is airy fairy for a garda to record that there was a witness because anybody could write that down. Would the garda be expected to record the name of the witness and state that he or she is prepared to give evidence? If such names are recorded, nobody will be in a position to give evidence because people will be executed unexpectedly overnight. This aspect of the proposal concerns me. I understand it is important to ensure nobody is abused, but we should not make the provision useless.
I have no difficulty with a decision being notified, but I have considerable difficulty with the reasons for further detention being notified. Detention for 48 hours, which is what the committee is discussing, on the direction of a garda not below the rank of chief superintendent is not a radical change in criminal law. For example, the Offences Against the State Act provides for detention for 48 hours. To my knowledge no provision in that Act states that reasons must be given for the detention. The measure becomes radical when the detention period is extended from 48 hours and the court extends it for a further 72 hours and up to a period of five days. That is a substantial change in criminal law, but the 48 hours period is not a radical departure and it is necessary.
The committee will soon deal with the part of the Bill which covers whether reasons should be given in court for an individual being detained on the direction of the court for a further 72 hours. At that point I will outline why reasons should not be given in such circumstances.
The Bill obliges the report to be written and this covers Deputy Walsh's point that details should be recorded in writing. The regulations made after the 1984 Act was introduced cover what gardaí must record, including the time of arrival, the nature of the offence and the relevant particulars relating to the physical or medical condition of the person being questioned. Gardaí must also state they have reasonable grounds, etc. Following the passage of this Bill, the regulations implementing the legislation will be similarly detailed.
I sympathise with Deputy O'Donnell's point. It is important that cases do not flounder in the courts because slip ups might have been made and a person's civil and human rights might have been infringed along the way. Between now and Report Stage I will consider whether more detail can be included in the regulations governing the Bill. However, as some Members mentioned, the existing custody regulations provide that when a person ceases to be in custody, he or she or his or her legal representative shall, following a request made within 12 months thereafter, be supplied as soon as practicable with a copy of the custody record.
The amendment relates to the custody record and whether the reason somebody's detention was extended from the first 18 hours to 24 hours by a chief superintendent should be written down because this would become public knowledge. It is possible gardaí would not want to write down certain information on a form because it might jeopardise the investigation of further ongoing crimes or, as Deputy Browne said, identify a person who might then be placed in danger, particularly if an extension of the detention is not granted in court. In these circumstances, a person could be out within 48 hours and may have knowledge about who shopped them or was giving information about them.
Following this discussion I wish to clarify with the Garda how much further information it would be happy to include in the written report. No Member wants the requirement to put details in writing to jeopardise cases or place ongoing investigations in danger. For example, a chief superintendent in extending a detention for a further period not exceeding 24 hours may be awaiting information from the Colombian authorities about a certain person he knows was the starting agent. If he had to write down this information and it is made available during the period of detention, it is possible it will reach a source in Colombia and that evidence there will be destroyed.
The Bill will target major players in the drugs scene, although other operators involved in a smaller way in drug trafficking will also be targeted. We must be careful not to jeopardise future cases and convictions and the committee's aim is to ensure effective prosecutions at the end of the process. Although we are allowing for it to be in writing in the legislation, I know that Deputy O'Donnell proposes instead of saying "I have good grounds to believe..." they should have to state the grounds.
After the first 48 hours they must go to court and give the reasons to the judge at that stage. The first 48 hours can sometimes be the make or break time in which the initial evidence is compiled, when one ascertains whom one is after and in what country the evidence may be best gathered. I ask the Deputy to give me further time to examine the matter and return on Report Stage with my views. The legislation does not need to be amended; the interpretation of the regulations will satisfy people that sufficient information is given without jeopardising ongoing investigations. Of course we need safeguards, but I must be careful that we do not put anybody's life in danger.
I am pleased the Minister takes the point and has agreed to look at whether we can go further in requiring that some justification of the decision by a member in charge to detain for a further period without charge should also be recorded. In some cases the reason may be confidential or it may prejudice a case to write something down but in most cases the reason for extending the detention could be written down.
A detention period of 48 hours is quite long. The drug trafficking offence is defined broadly. The definition section makes clear that a huge area of activity is included. It could involve fraudulent evasion of any prohibition, restriction or obligation in relation to the importation of a controlled drug. There are a range of offences included in drug trafficking, some of which may be minor and others serious. However, these powers are vast; they must be proportionate to the suspected activity under investigation.
A person arrested can be detained for up to six hours at a Garda station. This can be extended if the member in charge of the station considers it necessary for the proper investigation of events.
On a point of order, it is not just the member in charge; it must be somebody not below the rank of chief superintendent.
The first six hour period can be on the authorisation of the member in charge. This can then be extended by a chief superintendent for a further 18 hours, and extended again by a chief superintendent for another 24 hours. At the end of this 48 hour period the judiciary is introduced. This is vital to preserve the constitutionality of the matter because it introduces an independent person other than the investigating authorities into the detention equation.
If this Bill is to survive its first challenge we must be sure that it is objectively fair and that there are tight regulations in place so that detainees, who may challenge the legislation and the conditions under which they were held, will not be able to point to something such as the non-justification of the decision to detain.
I still have worries on this, but I know that the Minister takes my point. It was valuable that we discussed the matter as people will see that, as legislators, our meaning and intentions are clear and we are mindful of the danger of abuse. That is not sufficient reason for not introducing the powers, but it is good reason for us to be careful in considering the detail. I look forward to the Minister dealing with to this point on Report Stage.
I welcome the Minister's response to the proposal. However, what is required is a general statement of the grounds which led the officer to form the belief that such further detention was necessary. There is no need to name individuals. I do not like disagreeing with Deputy O'Donoghue but extending the 48 hour detention period is a radical step and requires a safeguard. A general statement on the extension would provide it.
Amendment, by leave, withdrawn.
Amendment No. 9 is related to amendment No. 5 and both may be taken together. Is that agreed? Agreed.
I move amendment No. 5:
In page 5, subsection (2), lines 4 to 20, to delete paragraph (e) and substitute the following:
"(e) (i) At any time prior to the expiration of the second 24 hour period of detention provided for under paragraph (c), an application may be made to a judge of the Circuit Court, who, if satisfied by oral evidence made by a member of the Garda Síochána, not below the rank of Chief Superintendent and such other evidence as may be called at an ex-parte hearing, that the further detention of the arrested person is necessary for the proper investigation of the offence in respect of which he has been arrested and that the offence being investigated is a substantial and serious offence, may direct that the period of detention be extended by any period of time not exceeding a further 72 hours from the expiration of the second 24 hour period of detention.
(ii) If, within the final 6 hours of a period of detention authorised by a judge of the Circuit Court under paragraph (e)(i) of this section, an application is made to a judge of the Circuit Court, that period of detention may be extended by a period of time not greater than 48 hours from the expiration of the period of detention under paragraph (e)(i) of this section if the judge is satisfied, by oral evidence of a member of the Garda Síochána, not below the rank of Chief Superintendent and such other evidence as may be called at an ex-parte hearing, that the further detention of the arrested person is necessary for the proper investigation of the offence in respect of which he has been arrested and that the offence under investigation is a substantial and serious offence.”.
Following the 48 hour detention period, section 2 allows for an application to a court for an extension of the detention to 72 hours. The person to whom the application relates should be produced and the judge would then hear any submissions and consider any evidence adduced on behalf of the person and the officer of the Garda Síochána making the application.
Consideration of a 72 hour detention period is a radical departure from anything which previously existed in Irish criminal law. The 48 hour detention period already exists under the Offences Against the State Act, 1939 and, therefore, could not be considered as a radical departure. I also accept that the fact that one is detaining a person for 72 hours on the order of a judge requires reasons to be given to the court.
My amendment provides that the application be made to a judge of the Circuit Court, whereas the Bill provides that it can be made to the District Court and the Circuit Court. The amendment also provides that the offence in relation to which the further detention is granted must be a substantial and serious one. It also differs further from the Bill on the basis that it provides that the application to the court will be ex-parte, in other words, that the Garda side will be heard and that the judge will make up his mind as to whether further detention is necessary for the proper investigation of what is stated and shown to the court to be a substantial and serious offence.
It is clear from the Bill that the Minister envisages that, in order for a further period of detention to be lawful, it must happen subsequent to the person arrested being afforded a right to be heard at a hearing. In effect this means that, in order for an individual to be held for a further 72 hours, it is incumbent on the legislature to ensure that the individual is heard.
If this is the criterion, how is it that a member in charge of a station is permitted to detain a person, for example, under section 4 of the Criminal Justice Act, 1994, or that a superintendent is entitled to extend that detention ex-parte, or that a garda is entitled to arrest and detain a person under section 30 of the Offences Against the State Act, 1939, without giving a person the right to be heard? How is it that a chief superintendent is entitled to extend this period on an ex-parte basis? The reason the application should be ex-parte is that we are dealing with suspected drug traffickers — the people suspected of one of the most heinous offences known to mankind. They would be held not on some flimsy evidence but on the basis of a court being satisfied that they should be held for a further 72 hours and possibly, thereafter, a further 48 hours. One of the reasons the Minister gave for the need to extend the power of detention in the case of suspected drug traffickers was that there is often an international dimension in these cases. That is correct. In those circumstances, it is easy to understand how gardaí could arrest and detain a person as part of an ongoing operation.
The Minister suggests that after a period of ex parte detention, which can extend to 48 hours only, the gardaí would have to go into court and divulge their information because that is what they would have to do in a contested hearing in relation to whether there should be a further 72 hours detention. There is no legal basis for such a suggestion. It is clear that every day gardaí, in the course of their duties, obtain warrants at ex parte hearings which affect the rights of others. Hundreds of search warrants and thousands of arrest warrants are obtained each year at ex partehearings. The Minister recently said she would extend the powers of arrest and the need for search warrants. What legal basis does she have to say that detention for up to 48 hours on an ex parte basis is lawful but that detention beyond that time on an ex parte basis, although subject to judicial checking, is unconstitutional?
The committee should consider the consequences of the type of hearing the Minister suggests is necessary. The detained person, after the 48 hour period or prior to that if the decision is made to seek the further 72 hours detention from the court, would have to be given adequate notice of the hearing and would have to be told in explicit terms of the intended Garda evidence. The detained person would have to be given an opportunity to consider that evidence and to prepare a defence. The detained person would also be entitled to be legally represented and to call evidence.
I am afraid the gardaí would be obliged to disclose all the information available to them in open court. We might as well go the whole way and require the gardaí to publish the up-to-date state of confidential information in one of the national newspapers. This begs the question, what magic occurs after 48 hours which requires ex partedetention to become detention on foot of a contested hearing? If one makes the argument that after 48 hours it must be a contested hearing, then how can one contend that it is all right to hold a person for 48 hours without any hearing? I am afraid the answer is that there is no valid objection to the application to the court being ex parte.
I support an application being made to the court because of the 72 hour detention. I accept there is a need to ensure that the possibility of abuse is negated. However, since the 72 hour detention is the subject matter of judicial checking, the likelihood of an individual being held for 72 hours on an offence other than drug trafficking is so minuscule as to be negligible. That is the reason my amendment should be accepted.
The essential difference between what is being proposed in these amendments and the approach taken in the Bill is that under these amendments an application to court for the continuation of the person's detention would be made ex parte, in other words, they would not have to be there. I stress to the committee, as I did on Second Stage, that I did not include the provision that a person detained must be brought to the court for any frivolous reason but because, after a detailed examination in the Attorney General’s Office of jurisprudence, case law and cases at the European courts, it is necessary to build this protection into the legislation.
Extending it to 48 hours is a radical measure as regards drug trafficking. It has only been in our laws for offences against the State in relation to the ongoing violence in Northern Ireland. We are moving it into what people would regard as ordinary crime rather than subversive or paramilitary crime, although I do not want to minimise it. It is important that, whatever extensions we give to powers of detention, we ensure there are safeguards built in so that somebody with the best legal advice cannot thwart what is meant by this legislation by showing they were not given all their constitutional rights. If there is any doubt about giving chief superintendents the power to keep people for 48 hours without having to give too much information, there will be challenges if we extend the power of detention to seven days without including an appearance in court of the person who is now being given extra detention.
I was advised that such provision was necessary to comply with the requirements of the European Convention on Human Rights. My advice was that having regard to the jurisprudence which has built up in respect of Article 5.1(c) and Article 5.3 of the convention, it is clear that provision must be made that the arrested person be brought before a court after 48 hours. Deputy O'Donoghue asked if there was some magic formula. It is a matter of time. We may legitimately keep people for a certain amount of time but there is a point at which we then have to justify keeping them longer. The same argument could be made if we extended it to 60 days. Jurisprudence has shown that detention may be found to be faulty after 48 hours.
It would not be sufficient to require a chief superintendent to apply for an extension in relation to detention. The detained person must be brought before a judicial officer and given an opportunity to be heard. In the case of Schiesser v. Switzerland, the European Court of Human Rights defined the powers and qualities required of a judicial officer to comply with this provision. These include complete independence when performing in judicial capacity; the detainee must be present at the hearing and the judicial officer must listen to the detainee's representations or those of his or her representative; the need for all the circumstances for and against the release to be reviewed and for the judicial officer to decide by reference to established legal criteria whether there are reasons to justify detention and the power to order immediate release where continued detention is no longer justified. They are the powers and qualities that must be examined before a judicial officer extends a period of detention.
It must be remembered that the judicial power to extend detention is for any period between 48 hours and seven days. The judge, having listened to what the detainee has said, might say to the chief superintendent: "You are looking for an extra 48 hours but I am only giving you 24 hours because you should have the evidence or information gathered in that time".
This Bill has been phrased carefully to allow incremental periods. If the judge is doubtful that preventive detention is taking place, he or she can decide to give only half the time period being sought and allow the appellant to refer back if more time is necessary. It is important that we be aware of how a faulty detention could take place.
Deputy O'Donoghue is concerned about confidential information being released. It would be up to the judge to decide. The Garda, in making a case for detention, will not want to release information that might jeopardise evidence gathering at a later stage. However, the judge will decide how much information he or she needs to make a judgment on further detention. If the judge is dissatisfied with what the garda says, he or she can say: "Give me proof or further information as to why you require an extra 48 hours. Is it because of time differences or distances? Is it because necessary information is hidden and you must get warrants in other countries or assistance from Interpol?" The judge will seek reasons. It will not be a case of the gardaí coming before the judge and exposing the entire case. However, they will have to give sufficient information to justify the extra detention.
I am satisfied that in providing these safeguards we will not fall foul of the convention. Deputy O'Donoghue would not wish to include a provision in a Bill which would clearly be in breach of the convention. The Office of the Attorney General has advised me that these safeguards are necessary and I hope Deputy O'Donoghue will not press the amendment.
Further detention will be considered necessary for the proper investigation of an offence once the judge is satisfied that the garda is moving forward and not seeking the detention to thwart further investigation. Realistically, we cannot include in legislation precise guidelines to deal with every eventuality. However, in exercising judicial discretion the judiciary will take into account any implications further and particular information might have in terms of prejudicing an ongoing investigation. I urge the committee to accept that the provisions in this Bill are the result of the most intricate and detailed advice from the Office of the Attorney General. I am not in a position to alter the legislation lest we fall foul of the European Convention on Human Rights.
Defective detention is worse than no detention. If we proceed with the amendment we will run into the problem of defective detention. I understand the intent of the amendment. If the proposal is adopted a coach and four will be driven through the legislation. I can already hear the lawyers preparing the coach. The Constitution provides certain boundaries beyond which legislation cannot go and the constitutional rights of an accused could be infringed by adopting an amendment such as this.
We are bound by the European Convention on Human Rights and if an accused was not cleared by the Supreme Court in a constitutional case he would be cleared in Europe. There is no point legislating for powers that will not stand up in court. In fact, one is playing into the hands of drug traffickers if one goes overboard on this point.
I endorse the Minister's comments. While accepting Deputy O'Donoghue's intent, this is not an amendment with which he should proceed. He will do no service to the cause to which we are committed — bringing drug traffickers to justice. This amendment would blow the Bill wide open.
I accept the Minister's response. An independent assessment of the detention after 48 hours is vital, as is the manner in which it is drafted in the Bill. I doubt that an ex parte situation could survive a constitutional challenge. The judge must be satisfied that further detention is necessary for the proper investigation of the offence and that the investigation is being conducted diligently and expeditiously. Only then can he issue the warrant.
It appears that the judge is not obliged to grant the full 72 hours even if the chief superintendent seeks it. The judge can also ask that the person be brought before him at intervals. It is vital that the judge can see the state of the person after 48 hours questioning. The person cannot be simply put in a room with the judge unable to look at him to assess his condition and state of mind and whether the investigation is being thoroughly and expeditiously progressed.
The introduction of the judge into the process after 48 hours is necessary to preserve the constitutionality of the extremely lengthy period of detention for questioning. This is not simply detention for the sake of keeping these people off the streets. These people will be questioned and that is the vital ingredient. The constitutionality of seven days detention without charge must be seriously examined. That is why the judge and the procedures in the Bill are being introduced at this point.
The Constitution guarantees that no person will be deprived of liberty save in accordance with law. However, the Supreme Court has held that "law" does not just mean the laws we enact but the fundamental norms of the legal system postulated by the Constitution. The independent assessment in the course of which the detainee has an opportunity to put forward a point of view and be seen by an independent assessor such as the judge is absolutely vital. I cannot support the amendment.
I am satisfied that it is not Deputy O'Donoghue's intention to breach the European Convention on Human Rights. In her opening remarks the Minister appeared to draw a distinction between crimes covered by the Offences Against the State Act and ordinary crime, without wishing to diminish the seriousness of crime. I am not a legal practitioner but I would put drug offences on a par with offences against the State. They are a serious and definite threat to the security of the State. Many criminal gangs are financially capable of doing serious damage to the security of the State. I realise the Minister did not intend to diminish the threat this escalating problem poses to the security of the State and this Bill is proof of that.
I am not familiar with Article 5 of the European Convention on Human Rights. The Minister referred to Deputy O'Donoghue's amendment as being in breach of the convention. She supported the Deputy's view that there is a serious constitutional issue to be addressed. If it was merely a question of constitutionality we would consider a constitutional amendment to get over the problem, given the seriousness of the issue with which we are dealing. The 48 hours provision may be radical in terms of the legislative provisions that exist to date. However, Deputy O'Donoghue's point is that 48 hours would not be considered radical by the people dealing with the day to day effects of the drug barons. Perhaps the Minister might explain how the amendment is in breach of Article 5 of the convention.
In response to Deputy O'Keeffe, Deputy O'Donoghue is not trying to damage the Bill. He is trying to be constructive and helpful to the Minister. In being helpful we are determined to be as forceful as possible to ensure the legislation is pushed to the limit to take on the drug barons who have no respect for human or constitutional rights.
The principal purpose of this Bill is to get at the drug barons and traffickers. We are thinking of the principal organisers and the main people behind the drugs problem. The Minister considers the 48 hour provision radical for this crime as distinct from subversive crime under the Offences Against the State Act. This is where we differ because the drug barons and their activities can no longer be regarded as ordinary crime. We are not winning against these people; they are winning. The Garda is not able to achieve that in the present circumstances and there are many reasons for that. The Garda needs an opportunity to get information and hard evidence in the time in which a person might be detained.
There is a strong belief that drug trafficking is not ordinary crime. It is exceptional, subversive and is eating at the heart of the community. We must be prepared to go as far as we can to support the Garda in tackling this crime. The Minister said the Garda will not divulge all its evidence or information in court. If it has to do this it will not be able to complete the investigations and convict people. What reasons will have to be given and to what extent will the Garda have to show its hand? At present any of the reasons for the detention would have to be made available to the representatives of the person who is detained and they could quickly ensure the Garda is frustrated in its efforts.
We strongly support the Minister in having the strongest powers for dealing with the drug barons and traffickers. European laws have to be considered closely. However, Europe's record on the drugs issue is not good. It is awash with drugs and it seems nothing can be done about it. Yet we try to introduce a measure which is tough and we are told Europe might not like it. I support Deputy Liam Fitzgerald in asking for a close examination of the European convention.
Deputy O'Keeffe referred to the dangers of defective detention and that the lawyers would have a field day. We must take risks to support the Garda. Deputy O'Donnell talked about the state of mind of the person while in detention and that the judge would have to take this into consideration. I presume the normal custodial safeguards would still apply and that the judge would have to have information on the detention and treatment of the person. If they were not being treated properly the person could make an application to be released. That happened under the Offences Against the State Act — there was a celebrated case in which a person applied before the second period of detention.
We are trying to protect the Garda in the investigation of suspected crimes. We want to ensure the procedure will work and is practical. We have to look hard at what we are doing to see if we can take the course Deputy O'Donoghue has proposed. The Minister referred to the fact that the gardaí would not have to divulge their reasons. However, I believe they would be obliged to do so in court. This is the real problem, because their hand would be fully exposed. There would then be little prospect of apprehending and successfully prosecuting key drug barons and traffickers. Presumably that stage would rarely be reached in the case of minor offenders. However, if it were it would probably involve "stuffers" or "swallowers" and one could merely await the outcome.
I ask the Minister to carefully consider Deputy O'Donoghue's proposal because his amendment is aimed at the heart of the matter. The proposed amendment will support gardaí in the work they are trying to do on our behalf; they are not succeeding in that work at present. Deputy O'Keeffe referred to defective detention. We do not want to introduce more defective legislation which will not achieve our aims. Deputy O'Keeffe also referred to the fact that this measure could eventually be contested in Europe. I believe the Garda would have comprehensively investigated a drug baron by that time, and the purpose they were attempting to serve would be met.
It may seem strange that we are proposing strict legislation in this area. However, the proposed amendment is a recognition of the reality of the subversion of the community and the young by drug barons who flaunt their wealth, power and ability to execute people at will. Members have expressed concerns about lawyers, but the hand of the Minister and that of the Garda Síochána must be strengthened in order that they might tackle drug barons and traffickers. It has been admitted that people involved in certain cases were executed almost at will and that the offenders are free to carry out such actions. That is not acceptable. This is an extraordinary crime and must be vigorously tackled. I support Deputy O'Donoghue's approach but the Minister might consider this matter before Report Stage and strengthen her own approach.
There is an extensive list of speakers and, notwithstanding the importance of the amendment, I ask Deputies to be as brief as possible.
If one grew up on the streets of the city, one would understand why Deputy O'Donoghue wishes to introduce effective measures and extend the legislation to deal with the most serious problem which civilised society has ever faced. Many people are being used, abused and executed by individuals who are possibly more ruthless than some of the subversive organisations of which the State has had experience. There is no idealism involved. Sheer greed governs the worst form of crime imaginable.
How far can the powers of the Garda be extended without crossing the line? Members referred to a time limit of 48 hours, but what magical event occurs after that point? This issue involves the dangers attached to violating civil liberties and rights. However, I support extending the legislation because of this problem's effects on people. We are dealing with a double-edged sword because, in introducing tough legislation to deal with crime, we are encroaching on areas of civil liberty, freedom and civil and human rights.
When a number of people are detained and it emerges in court that their civil rights were inadvertedly abused by the system, the support needed from the people to operate this Bill rapidly disappears. Unfortunately people are suffering in this manner and will do so until someone is affected by the legislation going too far. Public perception can be quickly reversed. A known criminal can suddenly become a victim of the system and gain sympathy as a result. We do not want this to happen.
The Garda Síochána has an important role to play. We cause problems for the Garda by extending the legislation. They want increased powers but only see the problem from their point of view. We must consider it from many points of view. If the Garda become involved in the situation to which I referred earlier, their reputation and morale will be affected. We may have to amend the legislation in the future because the outcome might be the opposite to what was intended.
As the Minister and Deputy O'Donnell stated, when the period of detention moves beyond 48 hours the condition of prisoners appearing in court will have a strong effect on those who see them. The condition of such prisoners will be an important factor in the operation of the legislation. If they appear to be incapable of defending themselves, the legislation will have gone too far and created a situation where the courts will have to defend those in custody. That would be undesirable.
On balance, Deputy O'Donoghue's approach is well intended and we should push the issue as far as possible. I ask the Minister to consider if there is an area of common ground between her position, the Convention on Human Rights and Deputy O'Donoghue's proposal. Can this issue be pushed to the point of no return? Would doing so curb the civil liberties of the people in question and give them a stick with which to beat us? We must be careful because human rights are an important issue. We must see much can be achieved before we infringe upon the question of human rights.
There is no point in retreading ground already covered. I support the amendment. I wonder what it contains that frightens us. Under the amendment action could only be taken if the issue was brought before a Circuit Court judge by a chief superintendent. I am open to correction, but there are only 41 superintendents in the country. If the number of Garda commissioners is added to this, the total figure is 50 to 60 people. There are fewer than 20 Circuit Court judges. These are some of the most responsible people in the country and if they cannot be trusted in this matter, they cannot be trusted at all. An inference is being made that they will abuse this power if it is given to them. This is not the case, I believe the power will be sensibly exercised.
The Minister referred to safeguards against powers of detention. She also stated that there is an in-built safeguard in that, where chief superintendents seek extensions of detention periods, Circuit Court judges do not necessarily have to abide by the 72 hour stipulation. They can make their own judgments and may decide on 12 or 24 hour periods. We are dealing with some of the most responsible people in the country and I am certain that this power will not be abused and should be given to them.
Much of the legislation we introduce seems to stack the cards against the criminal justice system and in favour of those who commit crime. This legislation provides a golden opportunity to send a message that we are not soft on crime but intend to be tough on it. That message is not being delivered in this instance.
In conclusion, the one word I have heard here more than any other is "radical". Members are saying this is a radical change but I do not accept that. Even if it was, there have been radical changes in crime, as in society, over the past number of years and if radical measures are necessary to tackle that, so be it.
The last point is correct. It is because radical measures are necessary that we are debating this issue; this is a radical measure and that is why the Minister introduced it. My interpretation of what the Minister said was that she was not in any way diminishing the threat of the drugs barons. She was simply distinguishing between subversive and non-subversive activities.
None of my predecessors has ever brought in these kinds of changes, and it is not today or yesterday that drugs came into our country. That is where the radical change lies.
Having listened to the Minister, I would go so far as to say that I feel that the serious and extensive consideration which is required of this section has already been given. That is why it is before us in this form. I am prepared to put on the record my support for the Minister approach.
However, one of the phrases which has been used extensively here today is "drug barons". I remember referring to it when we were debating the seizure of assets Bill when many people seemed to think there would be a queue of drug barons before the courts as a result of that legislation. The implication of some of the contributions here this morning is that there will be a queue of drug barons appearing before the courts as a result of this legislation. I do not believe that for a minute. I would like to think that were the case but, unfortunately, I do not think that will happen. However, time will tell.
I know this is not the issue but I am taking this opportunity to say that I have seen recent cases where middle range drugs dealers have appeared before the courts where the Garda had strong evidence against them. They have produced some of the most expensive and efficient legal teams in the State which has resulted in them getting off scot free on the basis that they had supplies of heroine in their possession for their own use, even though there was no evidence, good, bad or indifferent, that they ever used heroine. Having seen that type of thing happen, knowing some of the people involved and the damage which these people have done, I see them walk away scot free. In one case — I do not think it got even two lines in any newspaper — the Garda had anticipated a conviction of an individual who has created havoc in the area I represent, and had prepared all the steps to seize that person's assets but all of that fell through. That person walked free with a suspended sentence. The message that type of case sends to me is that whatever measures we introduce, we must make sure they will be effective, that there will be no loopholes and that they will not play into the hands of these drug barons who can, and will, spend huge amounts of money ensuring their legal defence finds every angle and exploit them to the full.
That is why it is essential that serious and extensive consideration be given, not to send out a message that we are all hard on crime so that we will get a few extra votes in the next election but that we will produce effective legislation which well tackle the drug barons and lock them up where they belong. That is my interest in discussing this Bill, and it is my only interest.
It was a very interesting debate. I am not going to get into a debate on defining "radical". What is radical about the Bill is that we are extending the power of detention from 12 hours at present to a maximum of 168 hours. That is a huge change in anybody's language and it is being done by this Minister. It was not done by any other Minister, even though we know these drug traffickers have been plying their trade for a number of years. So, if I use the word radical, I am entitled to use it on the basis that this is severe legislation.
Let us not get carried away. A number of Deputies said this is really pushing the bounds of this legislation. Deputy O'Donoghue's amendment is about one thing and one thing only. Does the warm body of the detainee stand in front of the judge or not? That is all that this amendment is about. What I am saying is that I cannot see how having the detainee standing in front of the judge weakens the legislation in any way. On the contrary, with all the advice available to me I must be certain that somebody cannot have a case thrown out because I have over-looked some jurisprudence. That is all we are discussing here.
Saying that the person should not be in the court when the chief superintendent says why they want to detain the person longer does not in any way strengthen the law, but if I went along with this amendment there is a risk that it might weaken the law. I know Deputy O'Donoghue and his colleagues want to make sure that we bring the law as far as we can, but let us not be foolish about it. With the extent of the advice available and the Convention on Human Rights to which Ireland is a party, I must be sure I build into this law a certainty that whatever the reason for releasing a person from further detention, it will not be because their civil or human rights are being abused. That is what I am about here.
For Deputy Woods' information, it is not a case of me returning to examine this matter on Report Stage. I have had the benefit of Deputy O'Donoghue's ideas since Second Stage and it goes to the core of making sure this extra power of detention survives the test of the best lawyers in this country and in Europe. I have had this matter examined fully so it is not a case of looking at it for another few days. I am satisfied that I must include in this legislation the safeguard that the detainee be brought to court.
I will read Article 5.3. It is not just the article in isolation which we have been examining; it is the interpretation of the article in case law. I cannot give Members all the case law, but it has been examined by the Attorney General. However, I have quoted one case of Schiesser v. Switzerland in the European Court of Human Rights. Article 5.3 says that everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power. Article 5.1(1) provides that everyone has the right to liberty and security, and no one shall be deprived of his liberty save in the following cases, and in accordance with procedure proscribed by law. It then states that the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing having done so.
In the interpretation of those articles, where it states "shall be brought promptly before a judge", it has been considered necessary to say that after 48 hours it is necessary to bring that person before a judge. There is no doubt in my mind that it says that the person must be there physically. It is a matter of jurisprudence as to when you bring them before a judge. Is it seven days? Is it 60 days? Do you leave them to wallow in a prison? What I am saying is that we must have this section in the Bill to ensure it does not fall foul of the Convention on Human Rights, the Court of Human Rights and our lawyers.
Deputy Woods is worried about what might be exposed in court, etc. Deputy O'Donoghue's amendment would still force the Garda to give whatever evidence it had to convince the judge. It will be up to the judge, not myself or the chief superintendent, to decide the cut-off point. If the chief superintendent does not make a sufficiently good case for further detention, he must go a little further to convince the judge. This amendment is also not asking for in camera but ex parte hearings. Therefore, whatever information given out will be available to the representatives of the detainee, regardless of whether they are physically in the court. I am safeguarding this by putting in a clause that they would be present. I urge the committee to recognise that this is essential to the core of this legislation.
Deputy O'Donoghue, as a solicitor understands that there have been cases through the years where it is not so much the consideration of the crime but a technicality that allows them to go free; for example, if a garda did not take a name in the right language or did not put the right Christian name in front of the surname, etc. These simple matters often lead to public frustration with the implementation of our laws. While it can sometimes be the case, the sentence is not often the main complaint but the frustration that somebody is being freed because a good lawyer found a loophole and got the person acquitted.
I cannot be more passionate and emphatic about this matter than to say that I am satisfied we must have this safeguard built into these extremely radical powers of detention in giving the Garda the power to keep somebody for up to 168 hours.
Although I have held the view for some time that drug traffickers pose a greater threat to the security of this State than subversives. I do not accept that the question of ex parte hearings is in breach of the European Convention on Human Rights or the 1937 Constitution.
The fact that an individual goes to court to oppose an application for his further detention undoubtedly makes the hearing adversarial. It means, like it or not, that a huge amount — if not all — the evidence available to the Garda will become public if the Garda is to succeed in an adversarial situation to get the court to accept that the individual should be held for a further 72 hours in relation to a serious and substantial offence.
The whole basis upon which one would wish to hold people for 72 hours or a subsequent 48 hours, would be to gather the evidence or to ensure that drugs concealed in the body would be discovered. This is seriously undermined by ensuring, through the provisions proposed by the Minister, that both sides must be heard on an application. I have no objection to the accused or detained person being brought before the judge to be satisfied that for example, the individual is not being ill-treated. However, I have considerable difficulty with all the evidence of the detained person coming out in an open court. In an adversarial situation, the Garda will not be able to measure the amount of evidence which it should let into the open. It will feel bound to give all the evidence if it is to secure the continued detention of the individual where it deems it necessary.
In any event, there is no good reason the application should not be ex parte.At no stage have I suggested that a 72 hour detention period should be at the direction of a person not below the rank of chief superintendent. I have always held the view, once one went beyond the 48 hour period, that there would be a need for a judicial checking. Having provided that checking, why then insist that all the evidence available to the authorities should be released in an open court? I am convinced this undermines the very purpose of the detention for a further 72 hours or a subsequent 48 hours.
As the Minister pointed out, there is nothing obliging the judge on an ex parte application to, for example, say that the individual could be held for another hour, six hours or 12 hours. Neither the 72 hour nor the subsequent 48 hour figure is sacrosanct other than we know that the individual cannot be detained for longer than seven days.
I am convinced this amendment is necessary. I have given examples of ex parte detentions as they currently exist in our criminal law and the powers which have never successfully been challenged. I am satisfied that the European Convention on Human Rights is not breached by this provision which merely decides how the hearing in respect of the detention will proceed. That being said, I will examine the Minister’s statements and withdraw my amendment on the basis that I will be putting it forward strongly on Report Stage.
Amendment, by leave, withdrawn.
Amendment No. 7 is cognate on amendment No. 6 and both may be taken together.
I move amendment No. 6:
In page 5, subsection (2)(e)(ii), line 19, after "investigation" to insert "has been and".
These amendments relate to the test to be applied by a judge to whom an application is made to extend the detention of a person who has already been detained for 48 hours or 120 hours, respectively, as the case may be, as the two amendments deal with the two periods of detention. One of the tests is whether the investigation is being conducted diligently and expeditiously. The use of "is" would suggest that the judge may be confined to considering the state of the investigation at the time the application is made.
The requirement of diligence and expedition should apply throughout the whole of the detention if further detention is to be allowed; it should apply from the very beginning. The gardaí detaining the person should be diligently and expeditiously investigating matters and the questioning, for example, should not have started before the application was made.
In law, preventative detention has been ruled out by the courts. If there is any possibility that these powers were used for preventative detention, it is then open to challenge. As we point out possible ways in which we can improve or change this Bill, it is not with a view to liberalise it but to ensure it works and can sustain challenges on the grounds that the powers are being used oppressively.
Getting tough on crime is about introducing legislation that works and that we, as public representatives, are trying to find to allay the alarm in society when it comes to drug related crime. It is not about introducing oppressive measures because then we are only defeating our purpose. If the legislation is oppressive it will be struck down by the courts and people will evade justice. The purpose of these amendments is to ensure that the requirement of diligence and expediency should apply throughout the detention. By these amendments I hope to amend the test to be applied by the judge so that he/she can look at the whole investigation from the first period of detention and satisfy himself/herself that it has been and is continuing to be conducted diligently and expeditiously. It is a simple point.
I discussed this matter with a very senior, experienced draftsman who advised me that the use of the words "is being" to encompass a continuum of activity is standard. It encompasses the phrase "has been" that Deputy O'Donnell wishes to add. In the circumstances the amendments are not necessary. Their insertion could cause a difficulty in that they could call into question the meaning of the word "is" when used in other parts of the Bill. I am satisfied from the draftsman that the "is being" formula encompasses the continuum of activity and "has been".
Are you going to confine the amendment to the status of "has beens"?
I accept the Minister's view. It is important to clarify that parliamentary drafting point at this stage.
Amendment, by leave, withdrawn.
Amendment No. 7 not moved.
I move amendment No. 8:
In page 5, between lines 37 and 38, to insert the following subsection:
"(3) A direction of a member of the Garda Síochána, not below the rank of Chief Superintendent, under subsection (2) of this section may be given orally or in writing, but if given orally, shall be confirmed in writing within 12 hours of it being so given.".
This relates to the direction given by a person who is not below the rank of chief superintendent as to the continued detention of an individual over the first 48 hour period. In the interests of certainty I believe it would be desirable, where the direction is given orally by the superintendent that, within a period of 12 hours, the direction should be given in writing. This is to create greater certainty in the law to ensure there could not be a defence whereby an individual could say the direction was never given in the first instance.
Section 2(e) provides that an oral direction shall be recorded in writing as soon as practicable. Deputy O'Donoghue's amendment seeks to provide that it should be done within 12 hours. There is already a section which provides that a direction for the extension of periods of detention may be given orally or in writing and, if given orally, shall be recorded. That follows the exact wording in section 4(3)(c) of the Criminal Justice Act, 1984.
It is desirable that a written record be available as quickly as possible. However, setting a 12 hour limit would to some extent be arbitrary and could dilute of the existing protection in the Act which provides that the direction must be given in writing as soon as possible. The effect of the amendment would be to remove the requirement to provide the written confirmation as soon as possible if this was within the 12 hours. I do not think it is a necessary amendment.
If the gardaí have to provide it within 12 hours and they could provide it sooner, a practice may develop whereby they would wait until the 12 hours were almost up and provide it then. The phrase "as soon as is practicable" covers Deputy O'Donoghue's point. The sooner after the material is available it is written down the better. There will be a format in the regulations and I will happily give people the regulations if they do not have copies of them. They cover the powers and how these things should be set down to safeguard the gardaí so that they cannot be accused of not carrying out the procedures properly. It is important. There are so many procedures now that it is important that the gardaí know what they are supposed to do without challenge.
The regulations will provide exactly how the form is to be filled in and what information has to be given to the person who is under detention about the access to solicitors and so on. We have copied what is in the Criminal Justice Act, 1984, which is working.
Since the Bill will not rise or fall as a consequence of this amendment not proceeding, I will withdraw it. However, I honestly believe that "within 12 hours" would have meant within 12 hours just as "as soon as is practicable" could mean within a period beyond 12 hours.
Amendment, by leave, withdrawn.
Amendment No. 9 not moved.
I move amendment No. 10:
In page 5, between lines 42 and 43, to insert the following subsection:
"(4) The written direction or the written confirmation of an oral direction given under subsection (2) of this section shall be appended to the custody record maintained at the Garda station as soon as is practicable.".
This is a technical amendment which would provide that the written direction would be appended to the custody record maintained at the Garda station. It is extremely important that it would be appended to the custody record in the event of a contested case about the detention of the individual. If he were to allege that he was improperly detained, it is desirable that it would be appended to the Garda custody record.
The amendment, as Deputy O'Donoghue has proposed it, would require that the written direction or written confirmation of an oral direction should be appended to the custody record maintained at the Garda station as soon as is practicable. There may be technical problems with the drafting of Deputy O'Donoghue's amendment because it covers a person detained in a Garda station but would not cover a person detained in a place of detention designated under the section. I presume that what is being suggested relates to directions given by a member of the Garda Síochána rather than a court. However, the amendment does not specify this so even the wording of the amendment presents a technical difficulty.
The Criminal Justice Act 1984 and the Treatment of Persons in Custody in Garda Síochána Stations Regulations, 1987, already provide that in the case of person detained pursuant to section 4 of the 1984 Act a direction or written confirmation should be appended to the custody record. I would be grateful for an opportunity to consider the points raised by Deputy O'Donoghue and in particular to consider whether they might be best met through an amendment to the Bill or through an amendment to the custody regulations. As it stands, I could not accept the amendment because it is inaccurately worded and might lead to difficulties with the Bill. However, I will come back to the Deputy on Report Stage and tell him whether it might be possible to take on board what he is trying to do in a regulation.
Amendment, by leave, withdrawn.
I move amendment No. 11:
In page 5, between lines 42 and 43, to insert the following subsection:
"(4) If a person is being detained pursuant to this section in a Garda station between midnight and 8 a.m. he shall not be questioned within that period unless a member of the Garda Síochána not below the rank of Chief Superintendent certifies in writing that such questioning is in his opinion necessary for the investigation of the offence and that there is a serious risk that the investigation would be seriously prejudiced if the questioning were not to take place.".
Everyone would agree from a practical point of view that it is unreasonable, unless it is absolutely necessary, to question a person between the hours of midnight and 8 a.m. Very often people can be tired during that period and there could be a danger that a person who might not be guilty might say something which might implicate him or her. This is a safeguard which would provide that the questioning of an individual in the early hours of the morning would be prohibited, unless it was truly necessary. I think the amendment is reasonable.
The amendment is not necessary because we already have protections for people detained between those hours in the regulations. They are not questioned unless it is considered necessary. The existing regulation governing the detention of persons in Garda stations provides that, except with the authority of the member in charge, an arrested person shall not be questioned between midnight and 8 a.m. in relation to an offence. Such an authority can only be given if the person has been taken to the station during that period or the member in charge has reasonable grounds for believing that to delay questioning the person would involve a risk of injury to persons, serious loss of or damage to property, destruction of or interference with evidence, or the escape of accomplices.
The essential difference which the amendment proposes is that it would be a matter for a member of the Garda Síochána not below the rank of chief superintendent to give the authority rather than the member in charge. Given the role of the member in charge in relation to persons in custody, it is appropriate they should continue to have this authority in the restricted circumstances I have allowed. By and large, most people would not be questioned during the period between midnight and 8 a.m. They would only be questioned in rare cases for the reasons outlined. We have already covered what Deputy O'Donoghue is attempting to do in this amendment. He is trying to safeguard people during the period from midnight to 8 a.m., which is already covered in the existing regulations and that will continue to be the case.
On what basis does the Minister say the existing regulations cover the period of judicial detention after 48 hours?
Even if an extension of the 48 hour limit is obtained, it does not negate the existing regulations on the time in which a person is questioned. The same rules will still apply for the period between midnight and 8 a.m., that is, the rules in the 1984 Act which are still in existence. We are extending the period of time in this Bill but we are not abolishing or repealing the conditions under which an investigation is carried out or the detention period. Those safeguards still exist for the proper questioning of a person. Just because the judge says they can have an extra 72 hours does not mean they can have a continuous period of 72 hours ignoring the regulations.
When there are discussions in the media about the dangers attached to extending periods of detention, people are often talking about the period prior to the introduction of the regulations on the safeguarding of people being questioned. They are talking about times when, perhaps, there was an opportunity for people being questioned to be abused because they did not have the safeguards of access to solicitors, rest periods, refreshments and so on. Those safeguards now exist and will not be abolished just because we are extending the period of time in which they can be questioned. Even after an extension of the 48 hour period, people will still have a right not to be questioned between midnight and 8 a.m. unless it is considered absolutely necessary.
This might seem a frivolous question but it has just crossed my mind that sometimes the people we are dealing with are not exactly in tune with our mode of living — sleeping by night and working by day. Certain people brought in for questioning work by night and sleep by day and we should give them the benefit of their working hours. Specifying the hours from midnight to 8 a.m. might mean questioning them during their sleeping hours. It sounds frivolous but that is how the drug barons work.
I was concerned that because of the change in the nature of the detention from a Garda direction to a judicial direction, it might have been necessary in the interests of certainty to make this amendment. I specified the rank of chief superintendent because of the length of the period of detention. In the circumstances, I will withdraw the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 12:
In page 5, between lines 42 and 43, to insert the following subsection:
"(4) No person under the age of 18 years shall be detained under any provision of this Act.".
This amendment speaks for itself. It merely provides that no person under the age of 18 years would be detained under any provision of the Act. There is no need for me to expand on that.
Unfortunately, as Deputy O'Donoghue and the other Members know, the reality is that some people under the age of 18 years are involved in drug trafficking. In the circumstances, I am opposed to including an age limit in the Bill. It is hardly a sustainable proposition that, for example, if there was evidence a young person had swallowed drugs for the purpose of importation they could not be detained under section 2. Including an age limit could encourage the drug godfathers to specifically use people under 18 years of age to bring in drugs.
The custody regulations which will apply to persons detained under the Bill contain a series of additional safeguards in relation to detained persons under the age of 17 years. We have already built into the regulations the fact that someone detained might be of a more tender age than some of the more hardened people involved. I am worried about specifying an age limit in the Bill because, unfortunately, the age of those involved in drug trafficking is getting younger and younger. There are safeguards for those under the age of 17 years and it is important to not weaken the Bill by including an age limit.
While I understand Deputy O'Donoghue's motivation in tabling this amendment, I agree with the Minister because in order to protect those under the age of 18 years, if the amendment was accepted the drug traffickers — there is no doubt that these people have no moral code — would specifically target those under the age of 18 years to carry drugs internally. That would be an inevitable result. While the motivation of the amendment is to protect young people, it would have the reverse effect. It would be wrong to introduce an age limit.
Unfortunately, many of the provisions in this Bill will be most effective against the minor players on the drug scene — those who swallow heroin or conceal it internally for the purpose of importation or redistribution. These measures will not be directed against the drug barons, except where large shipments of cannabis with an international dimension are investigated. It is important to remember the drug related crime we are all talking about — attacks on people by drug addicted individuals — and the horrors of AIDS and drug addiction, by and large, relate to heroin. It does not relate to yachts full of cannabis off the coast of west Cork or Connemara. They have virtually no impact on the crime scene or the nightmare of the addiction of young people to drugs such as heroin.
I am not diminishing the seriousness with which we should deal with other drugs. However, there is a huge difference between the 15 and 16 years olds throughout Dublin — and not just in the inner city — who are becoming addicted to heroin on a daily basis because it is so widely and readily available. We must prioritise the heroin threat, although I know that is already happening to some degree. I do not want to go off on a tangent that will become the focus of attention for other Members.
In the context of the heroin scene in Dublin many of the provisions of this Bill will be directed against the minor players involved in distributing it. If we accepted this amendment's age limit the drug barons would specifically target those under the age we pick to carry the drugs. That would be a disastrous development.
I have no doubt about the well intentioned motivations of Deputy O'Donoghue in moving this amendment. It is clear that in many cases such an amendment is important, but I start from a different direction to that of Deputy Gregory's. I am reasonably well briefed about a network of 15 to 16 year olds who are the mobile phone merchants of Dublin north-east. They operate from community to community as drug pushers and carriers. Recently a large number of people in one community told me they were extremely concerned about a 13 year old pusher, known to many of them, who operates a lucrative business for himself, an older member of his family and a number of neighbours. He is the front man. Given that experience in my constituency I would agree with the Minister.
I agree that organisers of the illegal drug trade would target under 18 year olds if they were excluded from the provisions of this Bill. The regulations were introduced a long time after the passage of the 1984 Act. The Minister mentioned that there are special parts of those regulations which deal with young people being detained for questioning. Under the 1984 Act the maximum period was 12 hours but in this Bill we are increasing that to two weeks. It may be that the conditions laid down for young people in regulations under the 1984 Act might need to be looked at again because it is foreseeable that many of these provisions will be used against young people who may be drug addicts. Therefore, to sustain the constitutionality and safeguards of the Bill from challenge we must be careful that the conditions under which that particular category of suspect is questioned are carefully crafted given that they may be young, vulnerable drug addicts.
We are talking about a potentially long period, two weeks as opposed to 12 hours. At the moment the conditions have been drafted to meet the 12 hour period but we are talking about an extension. The Minister should look at those regulations and perhaps consider changing them or modifying those sections which deal with under 18 year olds given the extended period we are talking about.
In response to Deputy Fitzgerald, I did not mean to suggest that young people were not already involved in the terrible heroin scene in Dublin. In the areas with which I am familiar, children as young as 12 are being used by dealers to carry drugs. If we were to accept this amendment that would become the norm rather than the exception as at present, although it is more extensive than exceptional. It would defeat Deputy O'Donoghue's purpose in introducing it.
In the light of what Members have said I will withdraw the amendment. If the amendment stood, the other statutes in the criminal law area would obviously have applied to people under the age of 18. However, I accept the arguments of Members and I withdraw the amendment.
I will examine the regulations for people under 17 in view of the fact that a longer detention period will be involved. The regulations were set down vis-�-vis the 12 hour detention limit and there is a whole section dealing with the protection of young people. I will look at them very carefully.
Amendment, by leave, withdrawn.
Amendments Nos. 13 and 15 are related and may be discussed together by agreement.
I move amendment No. 13:
In page 5, subsection (4), line 48, to delete "justified" and substitute "necessary for the proper investigation of the offence and that the investigation has been and is being conducted diligently and expeditiously".
When considering an application for a warrant extending the period of detention without charge, the test for a judge is whether detention is necessary for the proper investigation of the offence and if the investigation is being conducted expeditiously and diligently — we dealt with that already — but if the judge directs that the suspect be brought back to him during the period authorised by the warrant, the test, as laid down in the Bill, is whether the detention is justified. I am not clear why a different test, specified for that occasion, is applied here.
I am proposing that the same test be applied on a reappearance under subsection (4) as applies to an application under subsection (2). The amendment proposed to the test to be applied to subsection (2) is also incorporated here. The term "necessary for the proper investigation of the offence" are much stronger than "justified" which is used in the Bill. I am raising this matter for the Minister's consideration.
We do not really need to make this amendment in the sense that section 2(4) of the Act provides that when a judge issues a warrant for continued detention, he or she may order that the person concerned be brought before the court at a specified time during that period of detention. If the judge is not satisfied that the person's detention is justified he can revoke the warrant and order the person's immediate release. That envisages that if the chief superintendent has applied to detain someone for 48 hours, the judge may agree to that but, in view of a point the chief superintendent has made, the judge may request that the person be brought back to court in 24 hours at which point the continuation of the detention can be justified. These safeguards have been built in to make sure the system of detention itself will not in any way jeopardise the effectiveness of the legislation.
The amendment would make the Bill unnecessarily cumbersome because this deals with a period where the judge grants a 48 hour detention period but, because of a point the chief superintendent has made, the judge wants to confirm the extension to the 48 hour period after 24 hours. If he had to re-do the whole case, the judge would not use that particular element of justification to bring them back during the period. He should either grant the 24 hour detention period with no further extension, or review the request for an extension after 24 hours. This covers a situation where the chief superintendent may need a 48 hour detention period for the following reason: if we got it sooner we might not need it and the judge wants to satisfy himself that they are not being kept on for the extra 24 hours after the justification. It would make the Bill unnecessarily cumbersome and I do not think it is justified in this case.
I accept that. On amendment No. 15, subsection (3) expressly provides for submissions and evidence on behalf of the suspect where an application for the warrant authorising further detention is being made, but there is no corresponding provision for the occasion when the suspect is brought back to the judge during the period authorised by the warrant. Submissions and evidence would be proper on this occasion also. By expressly allowing it on one occasion but not on the other, there is a danger that the Bill might be construed as not permitting it on the latter occasion. The new subsection I propose will expressly allow for submissions and evidence where a person reappears before a judge during an authorised period of detention. Does the Minister not think this is necessary?
The same arguments apply. If the judge does not think they should get 48 hours he should not give it. The only time this will come into action is when he thinks there is a point on which he wants to review the extension and it would be unnecessarily cumbersome to put it in the system.
Amendment, by leave, withdrawn.
We will adjourn at this point and, having regard to Deputy O'Donnell's request concerning the Select Committee on Social Affairs, we will resume at 3 p.m. Is that agreed? Agreed.
Sitting suspended at 1.35 p.m. and resumed at 3 p.m.
I move amendment No. 14:
In page 5, between lines 50 and 51, to insert the following subsections:
"(5) If at any time during the detention of a person pursuant to this section there are no longer reasonable grounds for believing that his or her detention is necessary for the proper investigation of the offence to which the detention relates, he or she shall, subject to subsection (6), be released from custody forthwith unless he or she is charged or caused to be charged with an offence and is brought before a court as soon as may be in connection with such charge or his or her detention is authorised apart from this Act.
(6) If at any time during the detention of a person pursuant to this section a member of the Garda Síochána, with reasonable cause, suspects that person of having committed a drug trafficking offence other than the offence to which the detention relates and —
(a) the member of the Garda Síochána then in charge of the Garda Síochána station, or
(b) in case the person is being detained in a place of detention, a member of the Garda Síochána not below the rank of inspector who is not investigating the offence to which the detention relates or the other offence,
has reasonable grounds for believing that the continued detention of the person is necessary for the proper investigation of that other offence, the person may continue to be detained in relation to the other offence as if that offence was the offence for which the person was originally detained.".
Amendments Nos. 14 and 26 arise in the context of discussions which my officials had with the Director of Public Prosecutions about the Bill. Section 2 deals with the power of the gardaí to detain a person for up to seven days and section 5 relates to certain sections of the Criminal Justice Act, 1984, mainly those dealing with the responsibility of gardaí towards persons in Garda custody and the treatment of those persons. The Bill provides that that will also apply to persons detained under section 2.
One of the new subsections which it is proposed to insert in section 2 is aimed at making it specific that a detained person must be released from custody where his or her detention for a drug trafficking offence is no longer warranted unless he or she is to be charged with an offence and brought before a court for that purpose. The other new subsection deals with the power to continue the detention where, during the detention for a drug trafficking offence, the gardaí suspect that the person has committed a different drug trafficking offence. Essentially what this means is that the Garda Síochána cannot keep people in ongoing custody once it has enough evidence to lay charges against them. They cannot be detained as a trawling exercise for something outside the scope of the detention powers. The Garda has power to detain people where it thinks they have committed a different drug trafficking offence, which is what we are dealing with here. Section 2 (5) provides that where during detention there are no reasonable grounds for believing that the detention is necessary for the proper investigation of the offence, the person shall be released from custody unless he or she is charged or is to be charged with an offence and brought before the court as soon as may be in connection with that charge. The detention may also be continued if it is otherwise authorised apart from this Bill.
Subsection (6) deals with a person who is already in detention under section 2 for a drug trafficking offence and the Garda suspects him or her of committing a drug trafficking offence other than the one for which he or she was originally arrested. Under this subsection, where the Garda with reasonable cause suspect a person of having committed a drug trafficking offence other than the one for which he or she is being held, it may continue to detain that person in relation to that other offence as if it was the offence for which he or she had originally been arrested and detained.
However, before the detention can be continued in respect of the other drug trafficking offence and where the person is being detained in a Garda station, the member of the Garda Síochána in charge of the station at that time must have reasonable grounds for believing that continued detention is necessary for the proper investigation of that other offence. Where the person is being detained in a place of detention as designated under subsection (7), a member of the Garda Síochána not below the rank of inspector and who is not investigating either offence must have reasonable grounds for believing that continued detention is necessary for the proper investigation of that other offence.
Section 5 deals with the application of certain sections of the Criminal Justice Act, 1984, to persons detained. The amendment proposes, in the light of the two changes I mentioned, not to apply sections 4 and 5 of the Criminal Justice Act, 1984, concerning the requirement to charge a person detained under the Act when there is sufficient evidence to prefer a charge. These substantial amendments arise because the Director of Public Prosecutions is anxious to avoid difficulties to which the relevant part of the 1984 Act has given rise. The Act specifies that where a member of the Garda Síochána has enough evidence to prefer a charge against a person detained, "he shall without delay charge that person" unless the continuation of the detention is necessary in connection with an offence other than the one for which the detainee was first arrested.
This has given rise to difficulties, particularly in two areas. First, it seems that this can be interpreted too rigidly and members of the Garda Síochána may proceed to prefer a charge before the matter is fully investigated. Second, an issue has been made in court in some cases that evidence should be declared inadmissible because it was acquired while a person was detained but after there had been sufficient evidence to prefer the charge. Generally, the courts have concluded, in effect, that the section should be interpreted widely and that a person need not be charged while the investigation continues, which could have a bearing on the evidence which might be sufficient to ground the charge.
As I understand it, because of the power to detain people until there is evidence to charge them, people may have been detained after there was sufficient evidence to charge them in the hope that more evidence would emerge. Judges in some instances have ruled that information gathered from the time there was sufficient evidence to charge people was not admissible because there was already enough evidence to charge or release them. This is a serious quirk which has arisen with regard to the 1984 Act. It is important that we take cognisance of what the Director of Public Prosecutions tells us in this regard and that we make sure that the same interpretation does not arise here.
I am proposing that the detention should be strictly related to its being necessary for the purpose of the investigation and that a person should be released when the detention is no longer necessary for that purpose rather than when there is enough evidence to charge, unless the person is to be brought before a court in connection with a charge or is to be detained in relation to another offence. The amendments do little more than restate the law as interpreted by the courts but they have the advantage of making the position clear to those operating the new provisions. We have an opportunity, even at this stage, to modify the quirk which has appeared in the 1984 Act. Other quirks have also appeared in that Act, including the consecutive sentences issue, which is not relevant here. We should avail of this opportunity to make sure there is no obfuscation or confusion in this Bill. I recommend to Members that we accept these amendments.
I welcome the amendments. However, there has been case law in the Court of Criminal Appeal to the effect that detention can be permitted after there is sufficient evidence to charge if it is necessary for the investigation of the offence for which the person was arrested. Having said that, the amendments are welcome. They make it specifically clear that the offence for which the individual is being detained is drug trafficking and that if there is another offence of drug trafficking for which the individual was not originally detained, he or she could be charged with this. An individual so detained could not be charged with a totally separate offence. This is welcome because there have been fears in the community that this legislation would in some way go beyond the scope of drug trafficking and enter the domain of other criminal offences. It is important that it be emphasised that this is not the case and that the Bill specifically deals with the heinous offence of drug trafficking. These amendments are correct, in the interests not just of clarity but of making the Bill watertight in that a separate and distinct offence of drug trafficking is concerned.
I welcome the amendments for the reasons mentioned by Deputy O'Donoghue. It has been said to me since this legislation was first talked about that the Offences Against the State Act has been used or abused, depending on one's point of view, for a whole variety of offences for which it was not originally intended. In my constituency, which has many young people, it is said that this has been the case. This argument was used to attack this Bill on the grounds that, although it was said it deals specifically with drug offences, it would follow the same path as the Offences Against the State Act. I am not arguing on the basis of the validity or otherwise of these arguments. I always answered these points by saying I felt this Bill would be seen to be specifically for drug trafficking offences and would not go beyond this. Amendments like this copperfasten that position and are welcome from that point of view. They should help to send out the message that we are trying to deal with one of the greatest threats to society as we know it and that the measures we are taking, serious as they are, will be confined to people who are involved in drug trafficking.
Amendment agreed to.
Amendment No. 15, in the name of Deputy O'Donnell has already been discussed with amendment No. 13. which was withdrawn.
Amendment No. 15 not moved.
Amendment No. 16 is in the name of Deputy O'Donnell, but she is not present to move it. Is anybody here to move it on her behalf?
Is it in order for another Member to move the amendment?
If the Deputy wishes to move it.
I will move the amendment in the hope that Deputy O'Donnell will be here soon.
She will not be here soon. I understand there is some difficulty. A message was relayed to her and it is unlikely she will be here soon. I discourage the Deputy from entering into a protracted debate in the hope that another Member will arrive. In keeping with best practice, I ask the Deputy to desist.
I will not enter a protracted debate but I wish to move the amendment because it deals with the treatment of people in detention.
The Chairman should get a ruling. I do not think Members can move the amendments which are in the names of other Members who are not present. I do not want to deprive Deputy Gregory, but we will waste time if it is not in order for him to move the amendment. The Chairman should clarify the position.
I understand a Member may move an amendment if they are acting on the expressed authority of the Member who tabled it.
I do not have the expressed authority of Deputy O'Donnell but the amendment deserves attention because it deals with the treatment of people in detention.
That point can be dealt with during the discussion on the section when the debate on the amendment is complete. Perhaps the Minister has a reply now.
I cannot reply to an amendment which has not been moved. However, I can reply to issues raised during the discussion on the section. I do not want to break the rules.
I understand Deputy Gregory intends to mention it then.
Amendment No. 16 not moved.
I move amendment No. 17:
In page 6, between lines 18 and 19, to insert the following subsection:
"(9) The Minister for Justice shall place before both Houses of the Oireachtas a report on the operation of this section not later than 11 months after an order under section 10(2) of this Act is made.".
There has been considerable comment about the powers being provided in relation to detention. My party and I supported these measures from the outset, but it is desirable that the Oireachtas as a watchdog body has an opportunity to discuss the operation of the section to ensure it works well and that nobody is discriminated against. It would be in the interest of openness and transparency if the Minister accepted the amendment.
I understand the purpose of the amendment but I am not sure it would add anything to the Bill. Section 9 provides that sections 2, 3, 4, 5 and 6 shall cease to be in operation at the expiry of 12 months unless continued in operation by a resolution passed by each House of the Oireachtas. In asking the House to pass such a resolution, a Minister for Justice will report on the operation of the relevant sections, which are the kernel of the legislation. In these circumstances, the amendment is, in a way, redundant.
I do not have a problem with the amendment in the sense that it copperfastens the need to ensure that, if a Minister was not introducing a resolution, there is an opportunity to report to the House on the provisions, if only to state why a resolution is not being introduced. I am willing to accept the thrust of the amendment and I will discuss the matter with the Deputy with a view to introducing an amendment on Report Stage. In technical terms, the amendment may not be drafted correctly to ensure all the relevant sections are part of an annual report. I accept the thrust of the amendment but I want the parliamentary draftsman to examine it.
Amendment, by leave, withdrawn.
Question proposed: "That section 2, as amended, stand part of the Bill."
I will not enter a protracted debate, but given that the purpose of the section is to extend the period of detention, the issue of the treatment of individuals in custody is important. Undoubtedly, some individuals detained will be innocent and in the normal course of events, most people accept this point. Given that in some incidents, innocent people will be detained under the Bill, the treatment of individuals detained must be given consideration. I will go through some of the main points in Deputy O'Donnell's amendment which was not moved. It suggested the Minister may make regulations for the treatment of persons detained pursuant to the section whether in a Garda station or in a place of detention. It also stated that such regulations should include provision for the assignment to a member of the Garda Síochána, who was not involved in the arrest of the person, of responsibility for overseeing the application of the regulations in respect of that person without prejudice to the responsibilities and duties of any other member of the Garda Síochána.
The amendment further stated that such regulations shall provide for the making of an audio-visual record of any interview between a person detained pursuant to the section and a member or members of the Garda Síochána, and of any physical examination of such person. The amendment continued that such regulations shall provide for the provision of legal aid to a person detained pursuant to the section in connection with an application for a warrant pursuant to subsection (2) or an appearance before a judge pursuant to an order made under subsection (4).
Without being unduly restrictive, Deputy, we are discussing the section. I discourage the Deputy from quoting an amendment which was not moved. Perhaps he could confine his comments to the general import of the amendment. In terms of the committee's rules and procedures, it would be unfair to allow a debate on an amendment which was not moved.
I would never try to circumvent the rules and procedures. I referred to some of the main aspects and the general issue is important. I am interested to hear the Minister's response and how she views the point that, when the Bill is enacted, the regulations regarding the treatment of persons detained should be strict and clear.
The section deals with the powers of detention and the treatment of people detained under these new strong powers. Under the 1984 Act, the Minister already has the power to make regulations dealing with people in custody and many such regulations exist. I indicated earlier that I would examine carefully any amendment or additions to those regulations, particularly in relation to people under 18 years of age. I am conscious that the Bill extends powers, but regulations which allow people access to solicitors, food, sleeping time etc., already exist and are widely used. Sometimes these are provided to such a point that the public are critical and say too much latitude is given. Expressions such as "they are treated with kid gloves" are used. I am as concerned as any Member of the House to ensure that the legislation does not fall because somebody goes beyond their powers or inadvertently denies somebody the right of access to a solicitor, sleep, food, etc.
Under the 1984 Act, the Minister for Justice is empowered to make regulations. For example, there is a regulation allowing for the audio-visual filming of interviews and a pilot scheme is in place in this respect. I am considering extending the power to make such filming mandatory. The problem is not that the State will not allow it but rather those being questioned have not sought it and, in some instances where they know about it, will not allow the facility to be used. Because so few people have opted to have their interviews audio-visually recorded, the pilot scheme has not proved to be of much worth. I must, therefore, consider ways of having a more effective one in operation. We have a large number of regulations dealing with people in custody. The committee can be assured that, in making regulations under this legislation, I will be conscious of the additional powers granted in case there may be some aspect of the existing regulations that can be tightened up.
Regulations or no regulations, nobody has the right to illtreat a person in custody. The courts have jealously guarded the rights of people detained in custody. There was ambiguity with regard to the right of access to a solicitor but it was quickly resolved by the courts. In the case of DPP v Healy it was established that the right of access to a solicitor was a constitutional right. In a similar manner, the courts would undoubtedly jealously guard the rights of people in custody.
I welcome what the Minister said about audio-visual recordings not just from the point of view of the accused person but also from that of the inquisitors, who are often falsely accused of ill-treating people in custody. It would be desirable if modern technology were utilised in the future in the prosecution of serious criminal offences. In this respect it could be validly argued that our criminal justice system has not kept pace with advances in this area over a number of years. There is a need for both to be brought abreast of one another in the interests and pursuit of justice.
There is a need to make audio-visual filming of this kind mandatory, especially in view of cases where suspects do not co-operate or where there is extreme difficulty during the course of interrogation and allegations are subsequently made. The worst type of allegations are made by the most hardened criminals.
Question put and agreed to.
Section 3 agreed to.