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Special Committee Misuse of Drugs Bill, 1973 debate -
Tuesday, 25 May 1976

SECTION 25.

I move amendment No. 78:

In page 17, line 22, after " Garda Síochána " to insert "(not below the rank of Inspector)"; and in line 23, after " arrest " to insert " or authorise in writing another member of the Garda Síochána to arrest".

The opposition to this section stems from the concern felt with the excessive powers given to the Garda. I cannot accept the amendment as drafted, but some change is necessary in the present situation. I agree that to give the Garda power to arrest without warrant is a serious decision and it should only apply when it is essential for the public good. There are precedents for it, but I am anxious that these should be used only if they are necessary in the public interest. The nature of drug trafficking is one where it is possible to visualise a situation in which it is necessary to arrest without warrant. Normally, because of the ease with which evidence can be disposed of or removed, we must retain the power of arrest without warrant as a last resort, while defining as clearly as possible the situations in which it can be used. Accordingly, after consulting the Attorney General's Office, I am having an amendment prepared upon the following lines which I think will meet the Deputies' objections to the section and which I shall introduce on Report Stage. I suggest that this amendment would be suitable:

(1) Where a member of the Garda Síochána, with reasonable cause, suspects that an offence under this Act has been committed, he may arrest without warrant anyone whom he, with reasonable cause, suspects to be guilty of the offence.

(2) Where a person either commits, or is with reasonable cause suspected by a member of the Garda Síochána to be guilty of, an offence under this Act, any such member may require the person to furnish to him his name and address and in case,

(a) the person does not comply with the requirement or,

(b) the member is not satisfied that the name or address furnished by the person is his true name or address,

the member may arrest the person without warrant.

This new section will, I think, afford adequate protection to the individual concerned, while retaining the power to arrest without warrant in the limited circumstances outlined in the amendment. If the Garda arrest without warrant, they may be called upon to justify that procedure in court later. This should act as a deterrent to abusing such a power.

May I ask the Minister if he said " Where a member of the Garda Síochána had reasonable cause in relation to an offence which has been committed "?

Yes, but the member of the Garda Síochána must have reasonable cause to suspect that an offence has been committed.

Could we get something out of the way before we proceed with the section? The Minister has twice used this new phrase " reasonable cause". In a former case, section 23, the Minister substituted "reasonable cause" for "reasonable grounds". Here the Minister is substituting " reasonable cause " for " of opinion ". Is it the opinion of the Minister's legal advisers? Is there some significance in the phrase " reasonable cause "?

I am told that there is not much difference between the two.

In this case, it is being substituted for " of opinion "; it is a transfer from the subjective to the objective.

" Reasonable cause " is more stringent than just an opinion. An opinion is purely subjective, but the garda must show reasonable cause to the court. The garda cannot say: " It was my opinion ".

An opinion can be totally subjective, whereas if he has to show reasonable cause it is objective.

That is right.

Then the powers of arrest are related to two specific things, where an offence has been committed or where a person fails to give his name and address?

Could the fact that a person has drugs in his possession, that he has control of drugs illegally be an offence a priori?

It is assumed that a garda would stop a person and if the person indicates he has the drug and fails to give any cause for possession the garda would have reasonable cause to suspect that this person is in illegal possession and would thereupon arrest that person.

I was just dealing with the wording.

In other words, it would not be possible for a garda to arrest a person because he might anticipate an offence might be committed?

The offence would surely have been committed if a person had a controlled drug illegally in his possession.

Possession in itself, without licence or authority, is an offence.

That is what I mean. In other words, a garda with reasonable cause would show that an offence has been committed. It is not a matter of anticipating a second step, shall we say, in a crime or a second stage in a crime.

This amendment would have to be on Report Stage. There has to be a certain interval to give Members an opportunity of studying it. May I ask Deputy Haughey how he feels with regard to this?

This particular section is really a sticky point, I am afraid. I certainly support Deputy O'Connell's amendment but I really am very opposed to this question of arrest without warrant. I have given on this question at earlier meetings my general fears about the creeping power given to our Garda in all these areas, but here in this particular context the first thing I want to say is that section 25 is very sweeping. It covers every possible offence under the Bill.

The Minister is seeking to justify the sort of situation where a person who has drugs on him or is in some way culpable in that context would have to be arrested quickly and there would not be time to get a warrant. There could be that eventuality but the section is far more sweeping than that. This legislation creates a lot of offences—none of them technical offences to my knowledge—and in regard to any one of these the Garda will be given power to arrest without warrant. The idea of arresting without warrant is an abhorrent principle to all. There may be particular special circumstances in which we would be prepared to go along with it, but I do not think anybody could be expected to accept the general sweeping power of arrest without warrant for every offence created by this section.

The legislation deals with many new offences, some major, some minor and some of them petty, and it would not be acceptable to me that this sweeping power of arrest without warrant should apply to every single offence. That is the first point. The second point is that which comes up under Deputy O'Connell's amendment, namely, if you are going to give them power to deal with certain urgent situations, should it not be confined at least to certain ranks of the Garda Síochána? There are about 7,000 or 8,000 members in the Garda Síochána and it is absurd to expect that they are all angels or perfect. We can have some reasonable assurance, if a man gets to a particular rank, say, inspector or above it, that he will be very conscious of his given powers and his given degree of trust by the legislators that would not apply to every single member of the Garda Síochána down to the latest recruit.

I come now to my final point, my real objection to the section: that is, where does the balance lie? We have here social evils we are trying to deal with—the problem of drugs and drug taking and the misuse of dangerous drugs—and, in dealing with that particular problem, are we going now to make a further erosion into our general law for the safety of the private citizen, which is away beyond, in its implications, the importance of the offence in the sort of situation we are trying to deal with. These are my objections to section 25. I recognise the Minister is trying to be helpful in putting forward this amendment for the Report Stage but, even with that amendment the objection is to the core of the section under these conditions.

I should like to make a few comments. I would agree with Deputy Haughey that the increasing power contained in two lines might be a little too drastic but the amendment I read out—I appreciate Deputies have not had an opportunity of studying it—provides that a member of the Garda Síochána can arrest only under certain conditions and I have listed these conditions. He just does not go and arrest a man without having reasonable grounds and with other conditions as well. If he suspects that an offence has been committed he may arrest without warrant. I do not think that is unreasonable. Again, he has to have reasonable grounds and he has to justify these reasonable grounds.

The Minister says: " If he suspects an offence has been committed "—any offence, the slightest technical offence.

He only may arrest subject to these conditions which I propose to have included on the Report Stage. Where a person either commits or is, with reasonable cause, suspected by a member of the Garda Síochána to be guilty of an offence under this Act, any such member may require the person to furnish to him his name and address and in case (a) the person does not comply with the requirement, or (b) the member is not satisfied that the name and address furnished by the person is his true name and address the member may arrest the person without warrant. So, therefore, if there is an innocent person picked up and he complies with the requirements under this particular section, the garda does not arrest him.

The two are dependent on one another, are they? If a garda suspects that I have committed an offence, at that stage he is entitled to ask me for my name and address. If I then refuse to give my name and address or he has grounds for believing I have given a wrong name and address, he can only then proceed to arrest.

If he suspects that I have committed an offence he can automatically arrest me?

Without necessarily asking for my name and address?

Under the terms of this Bill people could commit offences and there would be no urgency about bringing them before the court. They would not be the sort of people who would leave the country, or would be unknown, and surely there are a whole host of offences under this Bill where this power of arresting a man would not be necessary in the ordinary course of events.

May I say that the amendment does not say he must arrest. It says he " may " arrest.

You must have that section.

If, for the sake of argument, a ship arrives in Dublin from Turkey, as one arrived in Britain in the past few days, with £400,000 worth of hashish on board.

Let us say from an unknown South American Republic.

If the Garda Síochána have reasonable grounds for believing that an offence has been committed, how does one strike a balance when in that specific circumstance, a garda is not enabled to proceed with an arrest? I can see Deputy Haughey's concern in regard to illegal possession, that some drug may be dumped on him and he is automatically arrested for what might appear to be a minor infringement. But an offence has been committed. This is a dilemma but how do we get out of this dilemma?

Perhaps between now and the next day the Minister could let us have copies of that.

I take it Deputy Haughey is correct when he says there is this sweeping permission, even though there is a discretion for the garda. There may be some minor offences which could be excluded for the purpose of arrest. Then, of course, if the person fails to comply with the requirements of subsection 2 with regard to his name and address, in which case the garda could be very well suspicious.

I always thought that if you had no light on your bike and you refused to give the garda your name and address you could be brought down to the station.

Yes, if you are drunk in charge of a car and you refuse to give your name and address, you can be arrested without warrant.

There may be some error with regard to the keeping of records. Obviously, you would not arrest a man there and for what could be considered minor offences. But as regards peddling and that sort of thing, I do not think you could avoid giving the Garda Síochána power to arrest in that case.

If there is a known international pusher on the docks in Dublin, we would be prepared to give the Garda any power they want to act. That is different.

Yes, before they hop back on board. Perhaps we could dispose of amendment No. 78 and then resume the next day on section 25 which still stands opposed, of course.

Amendment, by leave, withdrawn.
The Committee adjourned at 5.05 p.m. until 4 p.m. on Wednesday, 16th June.
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