Amendment Nos. 29 and 30 are related to amendment No. 28 and all may be discussed together. Is that agreed? Agreed.
SECTION 6
I move amendment No. 28:
In page 8, lines 5 to 10, to delete subsection (1) and substitute the following:
"(1) Section 2 of the Customs and Excise (Miscellaneous Provisions) Act, 1988, is hereby amended by the insertion of the following subsections after subsection (8):
‘(9) An officer of the Customs and Excise in the course of exercising any power under this section of this Act, may ask a person any question provided that, if the officer is of the opinion that the person has committed or is committing any criminal offence in respect of which the officer is exercising a power under this Act, he shall inform the person—
(a) of his suspicion,
(b) that the person is not legally obliged to answer any questions put to him,
(c) that the answers given to any questions may be given in evidence in any prosecution brought against him.
(10) Any questions put to a person and the answers, if any, given to those questions shall, as soon as is practicable, be recorded in writing by an officer of the Customs and Excise and read over to the person at the termination of the interview or as soon as is practicable, thereafter.
(11) Any failure by an officer of the Customs and Excise to observe the provisions of subsections (9) or (10) of this section, shall not of itself affect the lawfulness of the power being exercised by the officer or the admissibility in evidence of any statement or comment made by the person in respect of whom the power is being exercised.'.".
Section 6 allows for the participation by Customs and Excise officers in the questioning of persons detained under section 2 of this Bill or under section 4 of the Criminal Justice Act, 1984, with regard to a drug trafficking offence. It is to be welcomed that customs officers will now be allowed to participate in the questioning of suspected drug traffickers.
My problem with the section in essence is that it does not allow the customs officers to question suspected drug traffickers unless the gardaí or a garda are also present. This is regrettable because very often customs officers are at the coalface in the fight against drug trafficking and can be the first people to come across drug traffickers.
In these circumstances it would be more prudent and advantageous, from an enforcement point of view, if customs officers were allowed to question suspected drug traffickers without the necessity for the presence of the gardaí. I propose, therefore, the amendment of the Customs and Excise (Miscellaneous Provisions) Act, 1988, and the insertion of new subsections to the effect that, if an officer of the Customs and Excise was exercising power under this section or under the Act, he or she could ask a person any question provided that he was of the opinion that the person had committed or is committing a criminal offence in respect of which the officer is exercising a power under this Act, which would clearly refer to drug trafficking, and that the customs officer would then be obliged to notify that person of his suspicion, that the person is not legally obliged any questions put to him and that the answers given to any questions may be used in evidence in any prosecution brought against him.
In this context, the amendment goes on to provide that the answers, if any, to the questions would be recorded in writing and read over to the suspected person at the termination of the interview and that any failure of the Customs and Excise officer to observe the provisions of subsections (9) or (10) of section 2 of the Customs and Excise (Miscellaneous Provisions) Act, 1988, would not, of itself, affect the lawfulness of the power being exercise by the officer or the admissibility in evidence of any statement or comment made by the person in respect of whom the power is being exercised. This is a necessary safeguard and is similar to the safeguard provided under section 6 of this Bill.
The Minister mentioned regulations under section 7 of the 1984 Act. I am aware that customs officers are in authority and that, at present, they do not have a statutory power to question. If they do so, they must be governed by the judge's rules just as other figures in authority are, such as agricultural officers. This amendment would give customs officers the necessary power and it sets out the condition that what is said during an interview might be admissible in evidence. It is a necessary power which should be granted in the interests of tightening the legislation.
I understand what Deputy O'Donoghue wants to do but he is dealing with a parallel issue in this section. At present, when the gardaí question someone who has illegally imported drugs into this country, the customs officials who might have been present at the time or may have stopped the importation at the point of entry and passed the case on to the gardaí, have no right to be present. Both the gardaí and the customs officials put it to me that it would be a good idea for them to be present. Deputy O'Donoghue's amendments would remove that right because he wants to substitute a power in this legislation to allow customs officials to be present when questioning people. He is using the legislation to give extra powers to customs officials along the lines of the powers of the gardaí. That may be worthwhile but it is a separate concept to that in section 6. I cannot accept the amendments for that reason.
It is important that customs officers are allowed to participate in questioning people detained by the gardaí. Customs officers already have separate powers in that they can question people. They do not, however, have the same level of powers as the gardaí in criminal investigations. There is a danger that if I accept these amendments, we could lose good sections in the Bill. The amendments go beyond what is necessary in the context of this Bill.
The Bill gives me and the Minister for Finance power to make regulations to allow customs officers to be present at the questioning and to ensure that they can also ask questions. This has the advantage that if detainees give a different story during Garda questioning from that given to customs officials when they landed with drugs, the customs officials will be able to say that is not what they said two days ago. Co-operation between customs officials and the Garda will be important in getting the facts about a particular case.
It is not the Government's intention in this legislation to supplant the role of the Garda in the investigation and prosecution of crimes or to establish a parallel agency with similar powers. The intention is to achieve greater co-ordination between the Garda and the Customs. The Deputy's proposals would fragment the response to drug crime and this would make its elimination more difficult. We would then have a parallel system. At present the Customs has a particular role in stopping the importation of drugs, while the Garda is the criminal examination authority. We would be wrong to accept this amendment. I do not know if Deputy O'Donoghue meant to remove the valuable new co-ordinating schemes I have included here to allow customs officials to be present.
Since last July a memorandum of understanding has been signed between the Customs and the Garda and this is an important part of its implementation. It has been endorsed by me and by the Minister for Finance. A joint task force will now be established for particular operations and there will be greater co-operation between customs officials and the gardaí. When the Bill was being drafted, the Revenue Commissioners were consulted and they said they were satisfied with this new power. They have indicated that in the context of the primary role of the gardaí in the investigation of crime, the powers to be granted by this section are adequate and that they, in conjunction with the memorandum of understanding, represent a significant advance in co-operation between the gardaí and the Customs.
I ask the Deputy to consider these points. He is talking about a parallel system of criminal investigation and I am not sure we should be discussing that here.
It is a parallel system but it is also intertwined. If we give the power of questioning to customs officials in drug trafficking cases, I fail to see how that could mean they could only question suspected drug traffickers provided there is no garda present. If we give them power to ask questions of suspected drug traffickers, surely it must follow that they could ask these questions when a garda is present? I do not understand how the converse of that argument has been reached. If it were necessary to ensure that customs officers could ask questions in the presence of a garda, such a regulation could be introduced.
This amendment seeks to amend the Customs and Excise (Miscellaneous Provisions) Act, 1988. If somebody feels that a customs officer would be excluded from questioning with a garda present, I have no problem with introducing a regulation to that effect. Customs officers are often at the coalface of the problem and they are usually the first people to encounter suspected drug traffickers. It then makes sense to allow them to question suspected drug traffickers. I am not extending their powers any further. I fail to understand why the Minister does not accept the amendments.
A customs officer who suspects somebody is entering this country with drugs in their possession can question that person. Deputy O'Donoghue's amendments would remove the power of customs officers to be present at Garda questioning. In this Bill we are attempting to widen the powers of customs officers to question suspected drug traffickers with a view to taking a criminal prosecution. The Deputy's point should be discussed under customs legislation which is within the remit of the Minister for Finance. I am not be in a position to accept amendments which would extend that. Inherent protections would have to be provided for customs officers if they became a parallel prosecuting agency. There is nothing to stop customs officers asking people questions but they do so on the basis that when they reach a certain point the matter will be handed to the Garda for investigation. Deputy O'Donoghue is attempting to create a parallel system for criminal prosecution by giving powers to customs officers. I urge him not to press the amendments. That type of parallel power is much wider than is intended in this Bill and extending that power should be looked at under the existing customs Acts. The Revenue Commissioners have expressed their satisfaction with this Bill.
Perhaps the way to proceed is to implement these sections and see if lacunas still exist. Some of the lacunas about which customs officers complain result from them not being allowed to be involved with the gardaí in questioning detainees and putting questions the gardaí would not know about. However, we are extending their powers extensively in this legislation and I believe it will close some of the gaps that exist.
Deputy O'Donoghue should take this matter up with the Minister for Finance and see whether it is possible to widen the powers of customs officers so that they will be a parallel force to the Garda. At present they are a different force and we should move cautiously rather than turn them into a parallel force by way of an amendment to this legislation.
If the effect of Deputy O'Donoghue's amendment is to create a parallel force, which the Minister for Justice could not deal with because it would be under the authority of the Department of Finance, I am baffled as to why the amendment was considered to be in order in the first instance. The Minister for Justice has every right to give her interpretation of the ultimate effect of the amendment but I am not sure about what would be its ultimate effect.
On the one hand, the Minister sees a diminution of the powers of the Revenue Commissioners in terms of their right to participate in consultation and collaboration with the Garda Síochána at certain points of an interrogation. However, she also sees an expansion of their powers in a parallel area. Perhaps I am not interpreting what the Minister said correctly but I am confused about how these amendments could be deemed to be in order if they are out of order in the eyes of the Minister for Justice. She said that only the Minister for Finance could deal with the matter.
I did not say they were not in order. They are not appropriate to this Bill. An amendment can be judged to be in order but it might not be appropriate.
I am still confused. If the amendments are in order I cannot understand why the Minister would tell Deputy O'Donoghue the matter is not in her area and should be referred to the Minister for Finance. That is what I understood the Minister to say.
I endorse the Minister's comments about the merits of closer co-operation and collaboration between the ? Síochána and Customs and Excise. Everybody who is concerned about the drugs issue would agree with her. In recent years it has been apparent that there is a significant lack of such collaboration and co-operation. At times it has been evident to members of the public that they each appear to have a separate modus operandi and different agendas about who should be apprehended and when and where. The Minister referred to the memorandum of understanding. Customs and Excise wanted to stop every suspect coming into the country while the Garda wanted to let certain suspects through in order to capture bigger fish. Were the ongoing difficulties between the Garda Síochána and Customs and Excise resolved with the signing of the memorandum?
The Minister anticipated my question about the rights of customs officers to question suspects. The proposal that they can be present when the gardaí are questioning a suspect is good. What somebody says getting off a boat might be nearer the truth than what they might say when they have had three or four days to think about it.
Amendments such as this can be in order procedurally because of the general heading of the legislation. However, I am questioning whether this is the right time or place for an amendment which deals with an element of the work of customs officers without looking at their function in general. It would be different if this had already been examined in the context of the other powers of customs officers.
I am cautioning against introducing a parallel power for the Customs service. It would become another police force. Customs officers already have strong powers and, in this legislation, it is not my intention to change any powers other than those already included in the Bill.
Would the Minister have the authority to do so if she judged such action appropriate?
Only if I had discussions with the Minister for Finance and if the concept of transforming customs officers into a parallel prosecution force in this regard had been accepted. As matters stand, customs officers can stop importation. However, they pass on the prosecution to the Garda. The Garda Síochána is the prosecuting authority and the criminal investigator in this country. We are talking about a criminal offence. We should not lightly jeopardise the existing system.
The memorandum of understanding and the provisions in section 6 will result in greater collaboration and co-ordination and will allow a joint task force to be created to deal with cases where conflict appears to have arisen in the past. The job of the customs officers stops as soon as the person steps onto land. The Garda Síochána might like to have the drugs transported further inland so they can track down their destination and so forth. That is where conflicts arose in the past. The memorandum of understanding will allow the Garda and Customs and Excise, if they have intelligence or information that something will be landed in Ireland, to decide how they will deal with the matter and whether the importation should be stopped immediately or later.
Deputy O'Donoghue's amendments go beyond the scope of this legislation and I am unwilling to accept them. It may well be decided in the future that the Customs service should be given a parallel prosecuting power. However, I am not doing that in this legislation because I do not believe it is necessary or appropriate.
Anyone who passes through an airport or a sea port knows that Customs officers have powers to question. I want them to have the power to question in relation to suspected drug trafficking because they are at the coal face. It is not as if the Revenue Commissioners do not have powers already in relation to prosecution. For example, an individual who uses red diesel in his car would find out very quickly who has powers of prosecution. I am not trying to create a parallel police force — far from it — nor am I suggesting that the powers of the Garda should be lessened. Customs officers, who are often the first to come across suspected drug traffickers, should be given the power to question them without gardaí being present. I cannot see how that would create a parallel police force. I am only dealing with the issue of drug trafficking. Customs officers have powers in other areas.
The Minister has decided that the amendment is not sensible. She says she has a difficulty in that the Customs and Excise service is within the remit of the Minister for Finance. If that is so, how can it be that the Minister for Justice is extending the powers of customs officers in this section? I am sure the Minister is anxious not to be seen to interfere with the Department of Finance, which incidentally interfered more than once with her Department. I will withdraw the amendment until Report Stage.
It is not relevant to raise the issue of interference with the Department of Finance. The amendment is far more significant than the power being given in section 6. The amendment would establish a parallel agency with similar powers. I am sure Deputy O'Donoghue understands the intent of what he proposes. The ease with which he is pretending it is a simple matter undermines his own intelligence and legal knowledge.
Amendment, by leave, withdrawn.
Amendments Nos. 29 and 30 not moved.
Section 6 agreed to.
NEW SECTION
Amendment No. 33 is related to amendment No. 31 and they may be taken together by agreement.
I move amendment No. 31:
In page 8, before section 7, to insert the following new section:
"7. — (1) If a member of the Garda Síochána, not below the rank of Superintendent has reasonable grounds for believing that—
(a) a person is in possession, in contravention of the provisions of the Misuse of Drugs Acts, 1977 and 1984, on any premises, of a controlled drug or any documents relating to the importation, possession or distribution of a controlled drug, and
(b) there is a serious risk that the controlled drug or document may be moved or destroyed if the premises is not searched immediately, and
(c) it is not practicable in the time available to make an application for a search warrant pursuant to section 8 of the Misuse of Drugs Act, 1977, or pursuant to section 3 of the Customs and Excise (Miscellaneous Provisions) Act, 1988,
such member of the Garda Síochána may issue a search warrant mentioned in subsection (2) of this section.
(2) A search warrant issued under this section shall be expressed and operate to authorise a named member of the Garda Síochána, accompanied by such other members of the Garda Síochána as may be necessary, at any time within 3 hours of the time of issue of the warrant, to enter, if need be, by force the premises named in the warrant, to search the premises and any person found therein, to examine any substance or article found therein, to inspect any book, record or other document found therein and if there is reasonable grounds for suspecting that an offence has been or is being committed under the Misuse of Drugs Acts, 1977 and 1984 in relation to a substance or article found on the premises or that a document so found, is a document of the class mentioned in subsection (1)(a) of this section or is a record or other document which the member has cause to believe to be a document which may be required as evidence in proceedings for an offence, to seize and detain the substance, article or document as the case may be.
In section 7 the Minister provides for the issue of search warrants by members of the Garda not below the rank of superintendent and provides that before issuing such a warrant, a Garda of such a rank would have to be satisfied that the warrant was necessary for the proper investigation of a suspected drug trafficking offence and that the circumstances of urgency giving rise to the need for the immediate issue of the warrant would render it impracticable to apply to a judge of the District Court or a peace commissioner under section 26 of the 1977 Act.
The amendment is broadly similar to the Minister's provision but we provide that a member of the Garda, not below the rank of superintendent, should have the power to issue the warrant provided he has reasonable grounds for believing a person is in possession of a controlled drug; in possession of documents relating to the possession, importation or distribution of a controlled drug; and, believes there is a serious risk the drugs or documents may be removed or destroyed if the premises is not searched immediately and that it is not practicable in the time available to make an application for a search warrant under section 8 of the Misuse of Drugs Act, 1977 or section 3 of the Customs and Excise (Miscellaneous Provisions) Act, 1988.
The amendment goes on to specify in detail in subsection (2) what the warrant will mean and the powers it will confer on the Garda to search and seize.
The Select Committee adjourned at 4.5 p.m.