Private Members' Business. - Criminal Justice Bill, 1983: Committee Stage (Resumed).

Question again proposed: "That section 14, as amended, stand part of the Bill."

Sections 14 and 15 deal with the withholding of information regarding firearms or ammunition and also regarding stolen property and we have agreed to discuss together amendments Nos. 35 and 45.

When we discussed section 14 on a previous occasion we made clear our concern with regard to the matter and very briefly I should like now to summarise our thoughts. Basically we welcome the two sections and support them in principle. We have pointed out our reservations about drafting and we have made some suggestions to the Minister. The requirement to give information in one's possession appears simple enough but there is also the provision that a garda may by taking reasonable steps require a person to give information regarding previous dealings. It is difficult to know what exactly this means. The provision appears to be without limit and we raise a question in regard to it.

The penalty for withholding information in relation to stolen goods or property can be five years in jail. That means any stolen goods, whether it be one pound of butter, a pen or anything else. One could hardly visualise the court giving a sentence of five years but the fact that the five-year clause will apply will bring it under section 3 of the Bill and this brings us back to the question of the arrest and detention of a person, with questioning for six, 12 or 20 hours depending on the circumstances and the case. I wonder why five years was specified here? In future will there be a temptation to use the maximum penalty of five years in most instances, thus bringing into operation the provisions of section 3?

I raised the question of false or malicious allegations. The matter of people informing on one another leaves open the possibility of score-settling. It may not be possible to do much about that: it may be one of the problems that go with accepting the principle of the section. We have seen that the person who gives information will have immunity from prosecution in relation to the information given and this information may lead to other information that can lead to a prosecution. This immunity is to be applied by the Garda apparently without reference to the DPP. This is a new and potentially dangerous departure and I should like the Minister to consider this matter for Report Stage.

The point of greatest concern involves a new duty to inform on one's wife or husband under threat of five years in jail. This appears to run counter to the common law protection given to marital communications and I should like to hear the Minister's view on the matter. Section 1 (c) of the Criminal Justice (Evidence) Act, 1924, states:

The wife or husband of the person charged shall not, save as in this Act mentioned, be called as a witness in pursuance of this Act except upon the application of the person so charged;

This relates to the common law provision where a person is not required to give evidence in court against his or her spouse. It appears now that a wife or husband will be required to give information, not evidence in court, against a spouse under threat of a maximum of five years imprisonment or financial penalties or both, as suggested in amendment No. 35 in the name of the Minister. Section 1 (d) of the Criminal Justice (Evidence) Act, 1924, states:

Nothing in this Act shall make a husband compellable to disclose any communication made to him by his wife during the marriage, or a wife compellable to disclose any communication made to her by her husband during the marriage;

That Act states very clearly what we know to be the case in practice. It is very clear and explicit and indicates very clearly the position in relation to information gained in marriage.

The Minister's proposal, as drafted, would require a husband or wife to give information. For example, the husband of a wife who stole a pound of butter could be compelled to give information to the Garda which could not be used as evidence in court but which could be used to assist the Garda in getting other information and evidence about the wife which would lead the wife into court, or vice versa if the husband was involved. This is an unwarranted intrusion into marriage. We know that marriage breakdown is extensive, that the Government recognise this and are very anxious to do something about it. They set up an Oireachtas Joint Committee on Marriage Breakdown to examine the difficulties which arise from marriages which are under stress and strain. This proposal is going to make matters much worse and it is an unwise change in this respect as proposed by the Minister. It may make the task of the Garda more difficult because they are frequently asked to interfere in marital problems and breakdowns and to become involved. They are reluctant to do so because, very often, there are two sides to the problem and it is easy to see how they can be drawn into a situation where information would be given, perhaps with wrong motives, leading to further problems within the marriage. I ask the Minister to look again at the question of informing on a spouse, as I think it is most undesirable. The section can do a great deal in any event without entering into communication within marriage.

It is quite clear from section 14 that any information given by a person under subsection (1) shall not be admissible in evidence against that person or his spouse in any proceedings, civil or criminal, other than proceedings for an offence under subsection (2). The offence under subsection (2) is where a person fails or refuses, without reasonable excuse, to give such account, or gives information which he knows to be false and misleading he shall be guilty of an offence and liable to summary conviction, and so on. The Minister should consider the reservations which I have expressed in relation to the drafting for the Final Stage. We accept both sections in principle and we also accept the amendment which the Minister is proposing.

Deputy Woods has stated that the Fianna Fáil Party agree in principle with the section. However, he has expressed reservations about the drafting of the section and the question arises whether, due to the way the section is drafted and to the potentialities of what can happen under the section in certain instances, we would be better off without the section.

I should like to ask the Minister what is the precise effect of subsection (4) which states that any information given by a person in compliance with the requirement of subsection (1) shall not be admissible in evidence against that person or his spouse in any proceedings, civil or criminal, other than proceedings for an offence under subsection (2), the specific offence created by the section of refusing to disclose information without reasonable cause as to how the firearm or ammunition came into the possession of the accused. If it emerges from the interrogation that the accused, by his own admission, has obtained a firearm illegally and he is prosecuted for that offence, does subsection (4) mean that his confession that he obtained the firearm illegally will not be used in evidence against him? If that is the case, it is rather peculiar because statistics suggest that 80 per cent of convictions in serious crime are obtained by confession. Therefore, it seems odd that a self-incriminatory confession cannot be used in evidence against the accused. There may be no other evidence sufficient to convict the accused in which case he would walk free from the court. I should like the Minister to expand on that matter.

As Deputy Woods has mentioned, we went through these two sections in detail when we were last discussing the Bill. Deputy Woods raised some points again which he raised previously and I welcome his general agreement in principle to these sections. He is worried about the obligation, not alone to give an account of the information a person may have in his possession but also to take reasonable steps to acquire such information. Reasonable steps are something that would be objectively tested by a court and, as I have said in relation to the Road Traffic Act, 1961, a similar form of words is used there. The courts are very experienced in assessing what is reasonable and what is not reasonable. Obviously it would be a reasonable step to produce a receipt or a licence to show that a firearm was legally held. Perhaps a bill of sale for goods could be produced but to require somebody to go to America to do so would obviously be unreasonable. Therefore, it is easy to see the extremes of what would be reasonable and unreasonable. In that grey area where the layman would be in doubt as to what was reasonable, the court would decide and the test would be objective.

In regard to the five year maximum penalty, we are trying to stop a very serious evil in society: the trading in firearms with people making profit from armed crime and subversion at the risk of the lives of others. Armed robberies and larceny are among the most serious problems facing us today. The use of firearms to rob and steal is a serious matter and consequently the penalties for failing to comply with the conditions of sections 14 and 15 are strong and have been set at five years. It is not to be taken as an indication that every measure introduced by any Minister from now on will involve a minimum penalty of five years. In the case of proof by written statement the penalty is 12 months for failing to comply. Other sections of the Bill demonstrate that a five year penalty will not be a general rule. I agree that it should not be taken as a headline that all subsequent offences should be treated on the basis that everything should be admissible under section 3.

The problem of people wanting to settle old scores or grudges against their neighbours and being malicious is a problem but it is not any greater than the problem that exists already. There is some experience of false information being given to the Garda to embarrass neighbours. There are powers of search under the Misuse of Drugs Act and people can get others against whom they have grudges into difficulty. I do not think this increases it in any way.

Deputy O'Dea and Deputy Woods spoke about subsection (4). The point of the subsection is that the statement made by a person under the obligations of subsection (1) shall not be admissible in evidence against that person or his spouse. I was faced with a dilemma here because there are conflicting principles. There is, first of all, the desire that we should abide by what has been the traditional common law position that one would not incriminate oneself or one's spouse by a statement made under compulsion. On the other hand, there is the case put forward by the Garda that people who may be demonstrably guilty might walk free because they might not be able to take a prosecution. The subsection does not give immunity from prosecution but provides that the statement shall not be admissible in evidence against the person making it or his spouse. On the question of 80 per cent of all convictions being based on confessions, unless sections 14 and 15 were actively invoked they would not apply. If somebody is questioned under section 3 and makes a statement it would be admissible in evidence. Subsection (4) does not give immunity from prosecution; it is only the statement which cannot be used in evidence against the person.

There is a price to be paid for accepting sections 14 and 15. We are trying to get at the suppliers of firearms, the traders in stolen goods, the fences, the people who control, organise and market firearms or stolen property. There is a price to be paid in trying to formulate law to get the information to proceed against them. That price may be to weaken to some extent the case against the person found in possession but it is not an immunity from prosecution. It is simply the inadmissibility of the statement. Somebody found in possession of an illegal weapon can still be proceeded against for illegal possession but his or her statement would not be admissible in evidence as to the source of it.

Deputy Woods said his greatest concern was the idea that somebody would be obliged to give information against a husband or wife under either section. The obligation to give an account — in the case of section 15 — or to give any information in his possession — in the case of section 14 — is to give such an account or such informationsimpliciter and information could be against oneself. There is no protection extended from self-incrimination; neither is there any protection given from incriminating one's spouse by giving the information required under the section. Again it comes down to the problem of conflicting principles. We have said in this section that a person is obliged unless there is a reasonable excuse. What a reasonable excuse would be is a matter for the courts to decide. They may decide that incriminating one's spouse would be a reasonable excuse but the law on it is not developed to the extent that one can be precise. The problem from my point of view is the task of steering a reasonable balance between two important principles: the need to get information about the suppliers of firearms so that the illegal use of such weapons can be combated and, similarly, the trade in stolen goods and, on the other hand, the reasonable need to protect marriage. We have gone a reasonable distance to reconcile the two principles by providing that the information given would not be admissible in any proceedings against a person or his spouse. It would be difficult to go further than that because there would be practical and drafting difficulties. There are already requirements under law which require one to give information about one's own activities or those of a spouse. For example, under the Road Traffic Act, 1961, the obligation to say who was driving a car at a particular time could involve a spouse in a charge of manslaughter, yet the obligation is there. I see this as a similar obligation. One would hesitate to increase the potential for tension between husbands and wives in any circumstances.

There are two further points worth making. Larceny and trading in stolen goods can frequently become a family business. Many people are aware of family businesses in shoplifting where whole families are involved, including children of all ages, and large amounts of goods are being taken from stores in the city. Very often it could be a husband or wife who could have the maximum amount of information.

As well as that, if we do make the kind of exception that the Deputy proposes in the case of husbands and wives, would there be submissions then from other Deputies that we should also make an exception for children, parents, grandparents, uncles, aunts, cousins or people living in a house together? What about relationships of trust between employees and their immediate superior? What about relationships of trust in business? Should we make an exception of them as well from giving an account of where the weapon or stolen goods came from?

There are difficulties and I have endeavoured to approach the problem in two ways. First of all, there is a clear conflict of two very important principles — the sanctity of marriage and, in the case of firearms, the sanctity of human life, which are in conflict when we talk about this. The best suggestion I can make within the section as drafted in regard to how these can best be reconciled is that we leave it to the courts to define "without reasonable excuse" and see whether the courts consider that it would be a reasonable excuse not to incriminate one's spouse in the sort of circumstances outlined by Deputy Woods.

Deputy Woods dwelt on the problem of marital breakdown to some extent. He spoke of making the Garda's task more difficult. I think his point was that the Garda can be called in frequently where there are marital problems. I accept that. There are increasing problems being encountered in marriage and increasing marital breakdown. All I can do is suggest that the solution might be found elsewhere. I do not think it lies in the Criminal Justice Bill. Rather it might lie in other activities of this House.

I quoted the section of the Criminal Justice (Evidence) Act, 1924, which those before us saw as desirable and necessary to make quite clear the position pertaining at present: that nothing in this Act shall make a husband compellable to disclose any communication made to him by his wife during marriage, or a wife compellable to disclose any communication made to her by her husband during marriage. The danger is that the steps being planned here will have such vast social impact they would far outweigh the benefits one might hope to reap in relation to the number of cases involving firearms. The Minister advances as his reason for continuing this provision in the Bill, the fact that the Garda want it. We do not know exactly what the Garda want. For instance, we know that the Association of Garda Sergeants and Inspectors have said that sections 14 (1) and 15 (1) need to be clarified in order to determine precisely what information a person is required to give and that sections 14 (4) and 15 (4) need to be clarified in order to determine what information, if any, can be used against that person subsequently. Therefore, the Garda themselves are not clear on what information is intended in this case. Obviously the Garda want something, and in principle we want to give them what they want. But let us be clear in what we are giving them and about what we are doing in the steps we propose taking.

The Minister then says: "Well, a price has to be paid". We can maintain that about anything we do in principle, and the principle we are accepting is the price we are paying. The question is: how far do we go in practice in the implementation of that principle? Of course, we know that in trying to get at the dealers in firearms, the fencers in goods and so on we need to get that kind of information; but is it necessary for the State to intrude into marriage to get that information and to take that step? The section here does not deal with uncles, aunts, nieces, nephews or anybody else. Those who went before us were able to draft a law which maintained and preserved the marriage relationship notwithstanding the fact that they were making other things compulsory at the time. Can we not look harder at this to ascertain how we can deal with the problems with which we want to deal, introduce the principle the Minister wants to introduce and yet not intrude into marriage and communications within marriage? Surely that can be done and I would ask the Minister to re-examine it for Report Stage.

The Minister went into all sorts of other relationships of trust within business and so on. The one I raised specifically was that which those who went before us seemed to regard as important and which has become part of the common law. The innovation we would be including in this section is that a husband would be obliged to inform on his wife andvice versa. At present we know that the common and statute law is that one spouse cannot be called on to give evidence against the other spouse except where the offence was against herself or himself, whether it be an assault within the marriage or whatever. But under this provision a spouse can be compelled by law to inform and can be subjected to a penalty of a maximum of five years' imprisonment for refusing to do so. In my view that undermines the traditional regard the law has had for marital privacy and for the bond of marriage. The Minister says he does not like to have to interfere with that. Then why interfere with it? Surely the number of cases the Minister will solve by so doing could be solved some other way? After all, we are merely rendering it easier for the Garda to get information. We are making it easier for them in every other relationship outside marriage. In regard to communications between husband and wife surely it could be covered in some other way? That section, as drafted, introduces a whole new area. I have spoken to some gardaí, especially since we last debated this matter, and they foresee enormous problems for themselves in this proposal. We are back to what people have been saying about this Bill, that their underlying worry is that certain provisions will fall more heavily on certain sections of the community. I am genuinely concerned in relation to those sections of the community where we have not solved many of the problems there to be solved. For example, the Joint Committee on Marriage Breakdown are endeavouring to make proposals to solve some of the problems there, as elsewhere in our society.

I was somewhat disappointed in the Minister's clear rejection of my suggestion that he would consider this matter for Report Stage, especially since I had raised it on the last occasion and merely finalised the point this evening. I do not want to repeat what was said on the last day. In relation to the drafting, the Minister mentioned the taking of reasonable steps to get information and that the courts would decide what were reasonable steps. But in this case it is not merely a matter of reasonable steps to find out how somebody came by firearms, property or whatever, but it also says "and as to any previous dealings with it". I presume this is one area in which the Garda themselves are concerned about how far that is supposed to go. Certainly it is very open. I mentioned that on the last occasion but the Minister does not seem to have taken much heed, judging from his remark this evening when he said: "Right, let the court decide". In regard to many of these matters the Minister is inclined to say the court can decide ultimately. Obviously, the court will decide in relation to what they read in the Bill and how it is presented. In their wisdom I know they will solve many of the problems what will arise and use commonsense in relation to them, but they must be guided by the Act as passed.

The Minister has said that he himself is concerned about sections 14 to 18, about the length of time their provisions should operate and so on. In view of all of that I would ask him to re-examine that section and ascertain whether it is necessary in practice to effect such a major change in marital relationships affecting society as a whole. In these days various people are advancing reasons for the breakdown in the relationship of marriage as we know it. I am reluctant to go along with the Minister on that aspect.

I agree with the Minister in principle and we will support him in that. However, if that means we are opening floodgates in regard to questioning and informing within marriage and changing fundamentally that relationship within marriage, and the way the State has looked upon that relationship, we may be establishing a principle we will regret in the future. The Minister should consider that point. While it may appear necessary in a pragmatic way to help solve some of the problems surely the major part of the problem would be solved by the section as a whole without such an intrusion. Surely the Minister's advisers can produce a provision which will preserve the bulk of what is in the section and at the same time continue the protection that has existed up to now.

(Limerick East): I believe Deputy Woods misunderstood my intent. Obviously, I am making as strong a case as possible for the section but that does not mean that I will not take the Deputy's views into account. Of course I will look at the points the Deputy has raised.

I am glad that the Minister will consider the views expressed by our spokesman. This is the first opportunity I have had to express a point of view on this section in the House. My perusal of the Official Report on this section has left me totally dissatisfied with subsection (4). I attended a university debate recently and the views expressed by the Government and Opposition here were expressed at that debate also. The general view at the debate was that subsection (4) was representative of all the concern expressed on the generality of what might be called the more dangerous sections of the Bill in the context of civil liberty. It represents to me, and to many people in the community, those dangers to civil liberties. The subsection purports to fly in the face of a very well settled principle of common law, that a spouse be not obliged under civil or criminal law to give evidence against his or her spouse.

(Limerick East): I hesitate to interrupt the Deputy but he must be misreading it; it does the exact opposite.

Subsection (4) states:

Any information given by a person in compliance with a requirement under subsection (1) shall not be admissible in evidence against that person or his spouse in any proceedings, civil or criminal, other than proceedings for an offence under subsection (2).

That is the reality of the position.

(Limerick East): Subsection (2) is for failing to give the information.

That is exactly the point I am making. It is a very dangerous departure. As I understand it, there is another aspect to it apart altogether from intruding into the marriage home. We could have a situation where a family would be divided and that is a very serious departure. Another point that must be raised — it was raised by Deputies Woods and O'Dea — is that any information given by a person in compliance with a requirement under subsection (1) shall not be admissible in evidence against that person or his spouse in any proceedings, civil or criminal. That raises the informer spectre. I am concerned about that. The Minister has nodded his head and said I am departing from what he understands the section to mean but those fears have been expressed to me. They are reasonably grounded fears in connection with the section and the Bill as it stands.

I am pleased that the Minister has undertaken to have a look at subsection (4). It is generally felt in the House that as drafted it is loose and having spoken to gardaí I am aware that they are concerned about it. Certainly the principle is correct; what the Minister is seeking to do is correct. He is anxious to root out the suppliers of firearms, fences and so on. We agree with the principle of the section but that does not necessarily suggest we should agree with a denial of civil liberties in a number of instances. That is one of the dangers in the section as drafted. We look forward to what the Minister will say on Report Stage.

(Limerick East): Subsection (4) applies to any information given by a person in compliance with the requirements of subsection (1) and provides that it shall not be admissible evidence against that person or his spouse in any proceedings, civil or criminal, other than proceedings, for an offence under subsection (2). It preserves the safeguard which exists for a person in the relationship with his or her spouse. The only exception is the proceedings under subsection (2). The only way it can be used under subsection (2) is if a person fails or refuses to give information or gives false or misleading information. It is only when persons do not comply with section 14 that the information can be used against themselves because they failed to give the account or gave false or misleading information. It does not interfere in any way with the existing position. If I were to remove subsection (4) altogether the House can see the type of difficulties that would arise. The subsection is a safeguard and recognises that information given by a person under compulsion of law would, in all probability, not be admissible in evidence since it would not have been given voluntarily. It is also not unlikely that, without the protection against self-incrimination or, indeed, incriminating one's spouse the whole section might prove to be unconstitutional. It is a statement of a safeguard rather than any attempt to remove safeguards.

I will certainly examine the point made by Deputy Woods, that the obligation in the whole section is an obligation to give informationsimpliciter and that that obligation would oblige a person to give information about himself or herself and also about a spouse. That is the net point that is now between us and I will take the views of the Opposition into account on that.

There seems to be some confusion between the Minister and Deputy Andrews on this. The point Deputy Andrews is making — I apologise to him if I am interpreting him wrongly — is that there is a general principle that spouses will not incriminate each other by any statements they make. That general principle has stood for a long time. The section, in effect, is creating a new offence and the general principle which applies in relation to other offences will not apply in relation to the new offence. Therefore, there is a departure from the general principle in that a new offence is created to which the general principle will not apply. That quite legitimate point was made by Deputy Andrews and in another way by Deputy Woods.

In a reply to Deputy Woods the Minister referred to a precedent in road traffic legislation. I am aware of what the precedent is and I think the Minister will bear me out when I venture the opinion that it occurred under the Road Traffic Act, 1961, in relation to offences arising from the use of mechanically propelled vehicles. That precedent departs from the general principle also in addition to this new offence. I have never been happy that the principle was justifiably departed from in relation to that offence. That departure from the general principle may or may not be justified in itself in that type of offence, but it does not justify this further departure. Two wrongs do not make a right. Because the precedent is there it is useless for the Minister to say that the precedent justifies him now in departing from the general principle. If that were the case the general principle could be departed from on a wide scale by simply referring back to this one road traffic precedent, and the more it was departed from the more it would become justifiable to depart from it in later offences because the greater would be the number of precedents. That argument does not stand and I was surprised to hear the Minister using it.

The Minister also made the point that section 14 (4) does not prevent a prosecution from taking place in relation to another offence such as, in the case of section 15, possession of stolen property, larceny, theft or, in the case of section 14, illegal possession of a firearm. Of course, we understand that all the subsection does is prevent any confessions made by the accused in relation to his obligation under section 14 from being taken into account in evidence against him in relation to a prosecution for another offence. However, we must bear in mind that the burden of proof in criminal cases is quite severe. The case must be proved beyond all reasonable doubt. That is quite a substantial burden of proof. If a voluntary confession is made which is not subsequently disputed that obviously is sufficient to discharge the burden of proof, but the other evidence available to the authorities might not in itself be sufficient to discharge the burden of proof. The Minister justified earlier provisions in this legislation by saying that he did not want people who are obviously guilty to walk free. Here is a case where people who may be admitting that they are guilty of some crime walk free from that crime by virtue of the fact that a voluntary statement made by them cannot be taken into account and used in evidence against them. The remainder of the evidence might not be sufficient to discharge the very onerous burden of proof which must be met by the prosecution in a criminal case.

(Limerick East): It would not be a voluntary statement if a statutory obligation was invoked to obtain it.

Fair enough, but it is a statement which is not disputed and in normal circumstances that would be sufficient to discharge the burden of proof in relation to prosecution for the other offence.

I am a little concerned about the implications for the presentation of evidence by the prosecution in a criminal case. I am not an expert on criminal law or criminal evidence, but it seems that the skilled prosecutor can evolve ways from here on to present evidence in subsequent prosecutions in a way which would get around section 14 (4) given that the intention behind section 14 (4) is good. For instance, take a person found in the possession of property which has been stolen. The person admits that he stole the property in question and subsequently he is prosecuted for larceny. His confession would be sufficient of itself to discharge the onerous burden of proof and secure a conviction. The other evidence available to the authorities might not be sufficient. Could the prosecution present the evidence in such a way that the person will be asked whether it was true that he was found in possession of property, that he was asked to give some explanation as to how the property came into his possession and whether a prosecution took place? Obviously, if the person said that he did not steal the property, that he secured it legitimately, and the Garda subsequently prosecute him for stealing the property, then it will be obvious to the court that the initial prosecution under section 15 should have taken place, namely a prosecution for giving false or misleading information. It is only if he is telling the truth and the Garda accept it as the truth that he stole the property that a prosecution will not have taken place. I am not an expert on the presentation of evidence by either the prosecution or the defence in a criminal case, but there may be some way whereby the prosecution can present evidence in such a way that the court will know that a person made a statement that he stole property in accordance with his obligations under section 15 or that he was in possession of a firearm illegally in accordance with his obligations under section 14 when he is prosecuted for the substantial offence of being in possession or of larceny rather than the statutory offence created under these sections.

Is section 14, as amended, agreed to?

It is agreed to from the back of the House very reluctantly. Whilst the Minister explained the principle behind the section and the Opposition spokesman on Justice has accepted that principle and naturally I accept it, I would like to enter my owncaveat. The section is accepted very reluctantly and if I were in a position to do otherwise I would take a different course and urge a different direction. I am not at all happy that this in the final analysis is the type of section, particularly section 14 (4) which the Garda Síochána themselves would want. They may not want to become involved in that area. How it will improve our crime figures in the future leaves a great deal to be debated. In the nature of things I am voice-voting against the section and leaving it at that. The section is representative of the hazards into which we have been brought by the type of section we are now dealing with. Section 14 (4) should give rise to a good deal of concern in this House. Whilst I agree that the debate has been conducted sincerely and in a fair-minded fashion, nevertheless had I the opportunity of taking a different course and this were a different occasion certainly I would take a far different line. That would be my attitude also to a number of other sections.

Is it agreed that section 14, as amended, stand part of the Bill?

(Limerick East): On a point of order, I do not think the amendments were put.

Amendment No. 33 was debated earlier.

Question put and agreed to.

(Limerick East): I move amendment No. 34:

In page 9, subsection (2), line 43, to delete "£800" and substitute "£1,000".

Amendment agreed to.

(Limerick East): I move amendment No. 35:

In page 9, subsection (2), line 46, after "years" to add "or to both".

Amendment agreed to.
Section 15, as amended, agreed to.

(Limerick East): I move amendment No. 36:

In page 10, before section 16, to insert the following new section:

16. —Section 4 (1) of the Criminal Justice Act, 1951, and section 13 (3) (a) of the Criminal Procedure Act, 1967 (each of which provides for a maximum fine of £100 on summary conviction of certain indictable offences) are hereby amended by the substitution, in each of those provisions, of ‘£1,000' for ‘£100'.

This amendment proposes to insert a new section in the Bill, the purpose of which is to increase from £100 to £1,000 the maximum fine the District Court can impose on summary conviction of certain indictable offences. Section 4(1) of the 1951 Act refers to certain scheduled offences under the Act. When these are tried summarily in the District Court, fines of only £100 can be imposed. Examples of these offences are indecent assault and minor offences under the Larceny Act. Section 13 (3) (a) of the Criminal Procedure Act, 1967, relates to indictable offences to which an accused pleads guilty in the District Court. In those cases, with the DPP's consent, the court may sentence the accused but here again in this case the maximum fine is £100. I think it will be accepted generally that it is right that this maximum fine be increased to bring it into line with the current maximum for summary offences which is £1,000.

We agree with this amendment which has the effect of the deletion of section 16. Following the Minister's lengthy explanation of why he proposes to delete section 16, I shall not delay the House, but in effect what I have to say will probably be helpful to the Minister. This was one section which from the outset we considered we would have to oppose in total. Clearly it was a section that should not have been in the Bill in so far as it contained, for instance, the proposal to draw certain inferences from failure to mention any fact relied on in a person's defence and also various other aspects which would lead to considerable difficulty in interpretation and implementation. We are very happy that the Minister is withdrawing the section. We opposed it from the outset both from the Front Bench and from the lofty back benches and I am confident that our agreeing to the section being withdrawn in total will help the Minister in his negotiations otherwise also.

As the one who articulated from the very beginning the opposition outside the House to this section and having got very little credit for that, I am happy that the section is being withdrawn. I am very pleased that the Minister has seen the light and has withdrawn what was an extremely dangerous section. It was representative of the type of problems that confront this House in becoming involved in a Bill of this nature.

I am pleased, too, that the long campaign, particularly against section 16, has come to an end successfully. The Minister gave all the credit for this to his side of the House. I would not expect him to do otherwise but I would like him to give some credit to Deputy Woods and to other Opposition Deputies for helping him to see the light in this instance. In fairness to the Minister, he is not above seeing the light of day. In this case he saw the error that had been made. Naturally he must take responsibility for it but the type of thinking represented in the old section gave rise to considerable concern outside the House.

I wish to add my voice to that of Deputy Andrews in welcoming the deletion of section 16. It was an extraordinary piece of legislation by any standards and it is very difficult to understand how it could have come from the parliamentary draftsman's office in the first place, be agreed by the Cabinet and then appear before the House in the form of proposed legislation. I am not questioning the Minister's motives in withdrawing the section. Perhaps when he studied it he saw the implications of it, or perhaps his action resulted from pressure from his backbenchers. It may have been the one time during the lifetime of this administration that Labour's voice was heard or the Opposition may have a little to do with it. In any case I am glad the Minister has decided to withdraw the section. I can only express the hope that for whatever time I am here I shall never again see legislation such as that before the House.

Amendment agreed to.
Section 16 deleted.

As amendments Nos. 37 and 38 are related they may be taken together by agreement.

For the convenience of the House perhaps we could discuss section 18 with section 17.

As the sections seem to be related, amendments Nos. 37 and 38 as well as section 18 may be taken together.

I move amendment No. 37:

In page 11, subsection (1) (c), to delete lines 18 to 35, and substitute the following:

"such failure or refusal may be given in evidence against the accused in any subsequent prosecution against him, in relation to which the failure or refusal is material.".

The amendment would shorten the section, which states:

...then if, in any proceedings against the person for the offence, evidence of the said matters is given, the court, in determining whether to send forward the accused for trial or whether there is a case to answer and the court (or, subject to the judge's directions, the jury) in determining whether the accused is guilty of the offence charged (or of any other offence of which he could lawfully be convicted on that charge) may draw such inferences from the failure or refusal as appear proper; and the failure or refusal may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any other evidence in relation to which the failure or refusal is material, but a person shall not be convicted of an offence solely on an inference drawn from such failure or refusal.

That would apply to clothing or footwear and shall not have an effect unless the accused was told in ordinary language by the member of the Garda Síochána when making the request mentioned in subsection 1 (b) what the effect of the failure or refusal might be.

At first I thought of including safeguards in relation to that section. Then I came to the conclusion that the amendment would simply make refusal or failure to give an account as required by section 17 admissible evidence. Once the evidence is admissible it is unnecessary to have all the complications created by the rest of this section. If this evidence was admissible it would fall to be treated by the court like any other admissible evidence. The court or jury will be entitled to draw such inferences as may be proper and to treat the evidence as corroborative if the circumstances warrant it according to the existing principles of the law of evidence.

The effect of the amendment is to make refusal or failure to give an account admissible evidence which can be treated in the normal way by the court. The intention was to avoid the complications which arise under the section. The same applies to section 18. We are suggesting a similar provision in relation to that. Section 18 deals with inferences from an accused's presence at a particular case. Subsection (c) states:

...the member informs the person that he so believes, and requests him to account for such presence, and

A similar amendment is proposed there.

We also feel there should be further improvements to the section. These would include that any account given by the accused in answer under section 17 and 18 should have the same status under the section as failure or refusal to give an account.

Having regard to the terms of section 17 (1) which permits a judge or jury to draw such inferences as appear proper from a failure or refusal to give an account in answer to a request made under the section, will the Minister tell us what kind of inferences are envisaged which a judge or jury would not be capable of drawing? Will the Minister say in what circumstances the inferences can be drawn by a judge or jury under the section which could not otherwise be properly drawn apart from the provisions of the section? If nothing in the section can be taken to preclude the drawing of any inference from a failure or refusal to give the account requested which could be properly drawn apart from the section, what is the intention and purpose of the provisions of section 17 (1)? Why is it only the failure or refusal of an arrested person to give an account in answer to a request that has the particular status envisaged by subsection (1)? Why does the section not give the same status to the fact that a person has given such an account as requested?

Any evidence which is admissible at the trial may, if the circumstances so warrant it, be treated as capable of amounting to corroboration of any other evidence in accordance with the general principles of the law of evidence. Why does the Minister deem it necessary or desirable to have a statutory provision predetermining that this particular type of evidence when admitted should be treated as or as capable of amounting to corroboration? Does the Minister envisage that evidence concerning the failure or refusal under the section might not, according to the existing principles of law, be treated as or as capable of amounting to corroboration of any other evidence? If so, would he explain the circumstances in which such a situation might arise? If there are no circumstances we must ask what is the purpose of the statutory provision in subsection (1) in relation to corroboration, if evidence of failure or refusal could in any event, apart from the section, be treated as or as capable of amounting to corroboration of any other evidence?

As regards the use of the word "solely" what does the Minister mean by conviction of an offence "solely on an inference drawn from such failure or refusal"? Does he mean this is where the inference is the only evidence standing against the accused in relation to the criminal charge or, alternatively, does he mean that while a judge and jury would not be disposed to convict on the basis of other evidence against the accused, neither should they convict when the inference which they have drawn from the failure or refusal is the sole item of evidence which would bring the judge or jury to the last step in concluding that the accused was guilty beyond reasonable doubt? Does the section mean that the inference drawn from the failure or refusal is the sole incriminating evidence against the accused? If this is the case, where does the section say that or how is it purported to interpret the section as saying that it is referring to the sole incriminating evidence against the accused so as to differentiate that type of evidence from any other evidence on which a jury would have to rely in order to find the accused guilty?

The safeguards which I mention would include such things as: any request made pursuant to this section should be made in writing and given to the accused person and the accused person should then be informed that he may give his reply in writing or orally and, if the latter, his reply should be taken down in writing; if the arrested person fails or refuses to give any reply to the request made of him the fact of such failure or refusal should be recorded in writing; when the reply of the arrested person is recorded in writing, or where there is no reply, the fact of his refusal or failure to reply is recorded, he should be invited to place his name and sign his name on the sheet or sheets containing the written request and the written reply or the written record of his refusal to reply, as the case may be. If he refuses to sign such written record, such refusal should also be recorded by the member concerned.

There appears to be a need as the section stands to have some safeguards. This is a matter which could be covered separately by the Minister. At first I thought of putting it in an amendment and saying that the request should be given in writing to such person and his reply, if any, noted in writing and if he fails or refuses, then such failure or refusal should be noted in writing, but that would be making it a statutory provision. Consequently, I felt that our amendment which makes the failure or refusal clearly admissible as evidence would be sufficient and might meet the Minister's requirements.

I ask the Minister to tell us the reasons for this section. There is a great deal more to be said about it because many views have been expressed on it. This section will have a considerable impact on the Judges' Rules. That has been brought out in the contributions made to this section. For instance, the Incorporated Law Society said that section 17 effectively negatived the long-established Judges' Rules and put the person who is being questioned under a positive duty to relate a fact at that stage which may well be ultimately the fact that tilts the scales against him at a subsequent trial. In their view, this is clearly contrary to the basic doctrine of our law where a person is innocent until proven guilty. They say that a further disadvantage is that it may be necessary for a defendant to give evidence at his trial to explain why he did not provide the necessary information or explanation to the Garda during the investigation, thus putting himself in peril of cross-examination when that need not otherwise occur. They also feel that it is clear that if these sections are to be introduced, there will be a need for the correct wording of all inquiries made by the Garda and the results of these inquiries must be recorded and made available for subsequent use by the defendant's lawyers. This comes back to the point I was making about the need for safeguards to accompany the provisions. In the society's view it is not clear what kind of notice is going to be given under subsection (3). They say the trial judge should be given the discretion in a jury trial to prohibit the prosecution from commenting on or raising inferences. They went on to say that if there is to be a change in the inquisitorial system, it should not be introduced without the protection which is given by the inquisitorial system to the person being questioned. There is considerable concern about protection and safeguards in these proposed changes.

The Judges' Rules are in certain respects negatived and put a person being accused at a considerable disadvantage. There are opposing views on this. Rule 1 states that under the present law a person questioned is under no obligation to answer and he cannot be charged with obstructing a police officer if he refuses to answer. Under the new régime this will be abolished. Rule 2 states that when a police officer has made up his mind to charge a person with a crime he should administer the caution before questioning. The substance and traditional from of the caution are abolished by the Bill. Rule 3 provides that persons in custody should not be questioned without caution. This is clearly incompatible with sections 14 to 18.

Rule 4 which provides that the caution be administered if a prisoner wishes to volunteer a statement is also abolished. Rule 5 which states the form of caution under the rule and that care should be taken to avoid the suggestion that his answers can only be used in evidence against him, as this may prevent an innocent person making a statement which might assist to clear him of the charge, is no longer required. Rule 6 is also abolished. It requires the giving of a caution as soon as possible where a prisoner makes a statement before there is time to administer the caution. Rule 7 provides that the person making a voluntary statement shall not be cross-examined and no questions should be put to him about it. It is impossible to hold that this rule survives the imposition of an inquisitorial régime of detention and investigation.

The Garda feel that modification of the Judges' Rules is required so that the provisions of the Bill can become fully workable and the Association of Garda Sergeants and Inspectors said (a) that the Judges' Rules should be amended to allow the provisions in the Bill to become fully workable. They see that the Judges' Rules will be very seriously affected. The association go on to say that the rules should be revised to facilitate the procurement of the best evidence with which to connect the suspects with the crime; that they should be simple and without contradiction, and not help an increased number of professional criminals avoid conviction.

(b) It is recommended that rule No. 2 be modified to enable an interviewer to elicit all the information a suspect is prepared to divulge. Therefore, the caution should not be administered until the suspect is actually charged.

(c) The abolition of rule No. 3 would be a logical consequence if the proposal to permit detention for investigation is approved by statute.

(d) It is illogical to prevent a prisoner from divulging relevant information by having to caution him, merely to satisfy the dictates of the procedure which is archaic and outmoded. If a prisoner wishes to volunteer any statement it should not be necessary to administer the caution as referred to in rule No. 4.

(e) The caution under the Judges' Rules should be altered to read:

You are not obliged to say anything unless you wish to do so. You are, however, free to say anything you might wish. If you say or refuse to say anything, the prosecution will be at liberty to comment on such failure or refusal but anything you may say will be recorded and may be given in evidence.

The Association of Garda Sergeants and Inspectors propose a new form of caution which they believe would be appropriate as a result of the changes which will occur under the Bill as proposed.

The Judges' Rules are of long standing. They have been widely held and recognised. It seems quite clear that section 17 will negative these long-established rules and put a person who is being questioned under a positive duty to relate a fact at that stage which may well ultimately be the fact which tilts the scales against him at a subsequent trial. I should like to hear what the Minister has to say about the changes in the Judges' Rules. Would he confirm that sections 17 and 18 will result in changes to these rules? What changes would the Minister see which would maintain the protection previously provided by these rules, in so far as they can be maintained?

There have been various comments by people who have taken an interest in these sections. The Association of Criminal Lawyers made considerable comment and were quite concerned about them. They felt that they would radically alter the right to silence. There is a particular duty on us in this House to ensure that the changes which we are making in these sections are properly drafted and take account of the reservations which can be met in dealing with them. A question was raised in relation to section 16 that such inferences may be drawn when the court are deciding (a) whether or not to send a person forward, (b) whether there is a case to answer and (c) whether the accused is guilty of the offence charged. Do these same inferences apply and have the same effects in section 17 in relation to the failure to account for a mark? Can they have an effect on the court in deciding whether a person should be sent forward or whether there is a case to answer? What other effects would there be in that respect?

Section 17 (3) does not specify the form of warning which must be given to bring the section into effect. It is quite clear that the present caution will no longer apply. Indeed, the Association of Garda Sergeants and Inspectors have pointed that out and have suggested another form of caution or warning which might be appropriate in the new circumstances. The Association of Criminal Lawyers also suggest that the judicial definitions of a voluntary statement no longer apply and will have to be redefined.

The Minister is aware that very much has been said by people who are taking a genuine interest in the section and have tried to contribute to the debate outside the House which went on for quite some time. The Association of Criminal Lawyers feel that sections 17 and 18 alike undermine the presumption of innocence and the burden of proof beyond reasonable doubt required of the prosecution. They also feel that the sections abolish the Judges' Rules as hitherto known and undermine the protection afforded an accused making a statement by the use of a caution. This would appear to support my view and concern expressed in relation to the cautions and the effect of the sections as at present drafted. Would the Minister give his view in relation to these questions? There are many more which could be asked in that respect. If he has at this stage any other views in relation to the section or if, on consideration, he feels that he might be able to offer some redrafting of them on Report Stage, we would be interested to hear from him in that respect.

(Limerick East): First of all, it is worth mentioning the general position at the moment. If we did not have these sections the jury could not infer guilt from silence. Take for example the failure to explain something like a bloodstain on a jacket or shirt. The prosecution could not at the moment comment on that. These sections will now allow an inference to be drawn legally. At the moment a jury might draw an inference as a matter of common sense but there is an obligation on the judge to direct them not to draw such an inference and the prosecution cannot comment at all. To take a specific example, somebody is arrested who has bloodstains on his shirt. He gives no explanation for that to the garda. The garda giving evidence can mention the fact that the accused gave no explanation for the bloodstains but the prosecution cannot comment on that and the judge must instruct the jury not to draw an adverse inference from that fact. A judge could frequently be obliged to direct a jury to act against their common sense. It is difficult to know how juries come to decisions in any particular case but there must be tremendous pressure on ordinary citizens to draw an adverse inference at the moment. I would go so far as to say that they probably frequently do so but if they do, they do so against the express directions of the judge.

These sections will allow what I consider is a matter of commonsense to be legal. Section 17 allows a jury to draw an inference and, in practice, it will be an adverse rather than a benign inference. It will be an inference of guilt from the failure or refusal of an accused to account, when asked by a garda, for objects, substances or marks found on his clothing or footwear or otherwise in his possession, or at any place where he was arrested. It applies in specific circumstances as follows: The person must have been arrested without warrant on reasonable suspicion of having committed an offence so it can only arise subsequent to arrest. Any failure to explain marks and so forth in response to questions asked before arrest will not give rise to inferences under this section. Inferences can only arise subsequent to the Garda exercising the power which they have at the moment to arrest without warrant.

Secondly, the arresting garda must reasonably believe that the presence, object or mark is attributable to the person's participation in the offence for which he was arrested. The reasonableness of the garda's belief is an objective test. Again, it would be open to the court as I said previously, to review it. However, in this particular instance it is the judge in court who will decide whether it is proper to draw an inference or not. So, the reasonableness or otherwise of the garda's belief would be a matter which the judge would have to take into account.

Thirdly, the garda must inform the person of his belief and request him to account for the object, mark or whatever. Only a proper inference can be drawn and in this regard the jury are subject to the directions of the trial judge as to what would or what would not be proper. A person cannot be convicted solely on the basis of an inference drawn from failure or refusal to give an explanation. If the adverse inference is the evidence, a person cannot be convicted on it. It can add to the sum total of material evidence. What a jury decide on when they look at the wholecorpus of evidence and what particular aspect of that evidence weighs heavily, or most heavily, with them is impossible to say. I presume that they look at the whole corpus of evidence and it is the weight of the accumulation of parts which decides them. This would be another piece of evidence, but nobody could be convicted on inference alone.

Subsection (2) applies the section to the condition of clothing or footwear as it applies to a substance or a mark. This would arise, for example, where the clothing was very wet without being stained. Obviously, in certain crime situations an inference could be drawn from somebody who is all wet but it would not necessarily constitute a stain. It is to cover that kind of situation. Subsection (3) requires that the accused be told in ordinary language what the effect of his refusal might be. This involves a change in the caution because it has to be done in ordinary language.

Deputy Woods asked about subsection (4). It is a saver for existing law under which an adverse inference could be drawn in an appropriate case from the failure or refusal of an accused to give an explanation about an object in his possession or some mark on his clothing to some person when asked to account for it. For example, where an employer has asked an employee for an explanation for his unauthorised possession of some item of the employer's property or where a member of the accused's family asks him where he got a particular bloodstain.

There is a reference here I would like to read into the record. It is Lord Goddard, CJ giving the judgment of the Court of Appeal inR v. Aves 1950, who said:

Where the only evidence is that an accused person is in possession of property recently stolen, a jury may infer guilty knowledge (a) if he offers no explanation to account for his possession or, (b), if the jury are satisfied that the explanation he does offer is untrue.


That particular judgment is the reason for subsection (4) because there are limited circumstances in the case of an accused person in possession of property recently stolen, this being the only evidence, where an inference can be drawn at the moment under existing case law. Subsection (4) is to preserve that.

Section 18 is a provision of a similar nature. Subsection (1) allows the drawing of appropriate inferences by a court or jury from failure or refusal of an accused to account for his presence at a particular place at or about the time of an offence for which he was arrested without warrant. Paragraph (a) of subsection (1) makes it clear that the arresting garda must have found the person in the particular place at or about the time the offence was committed.

Paragraph (b) requires that the arresting garda must reasonably believe that the person's presence in the place is attributable to his participation in the commission of the offence. Under paragraph (c) he must inform the person of his belief and ask him to explain his presence in the particular place. Again, as in section 17, it will be a matter for the trial judge to direct the jury as to what inference, if any, may be drawn from the failure or refusal of an accused to account for his presence there. Subsection (2) provides that the accused must be told by the arresting garda in ordinary language, when he is asked to account for his presence, what the effect of failing to do so might be. Subsections (3) and (4) are similar to subsections (4) and (5) of section 17.

Before I go on to the amendments proposed by Deputy Woods I would like to read something for the benefit of the House. It is the O Briain Report again, which we have referred to frequently, and it is the chairman's addendum, Barra Ó Briain, giving his views on matters which his colleagues felt did not lie within the committee's terms of reference but which Barra Ó Briain felt he wanted to comment on. It is on page 23, the last paragraph of his addendum. He dealt with the concept of the period of detention for questioning and he went on to say:

A second matter, related to the foregoing, is whether or not a suspect should continue to have the absolute right to remain silent in all cases. At present, there is no legal obligation to give information to the Garda, apart from certain statutory exceptions. No adverse inference may be drawn by any jury from such silence. The prosecution may not even comment on it. This rule as it stands has been criticised by several very distinguished judges in England, and by well-known teachers of law and authors. In England, in June, 1972, the Criminal Law Revision Committee, after considering the matter for eight years, advocated the abolition of the right of silence as it hitherto existed. The British section of the International Commission of Jurists chaired by Sir John Foster, QC, MP was of the opinion that the privilege of the accused to keep silent before his trial should be abolished. The Lord Chief Justice of England, Lord Widgery, has expressed the view that the right to remain silent should be modified. So has Professor Rupert Cross of Oxford University. Professor Glanville Williams has expressed the view that changes in the law must include the abandonment of the present entitlement of a suspected or accused person to take no part whatsoever in the establishment of the truth. This right of silence can be no less frustrating to gardaí, honestly and dutifully investigating a crime, than the prohibition on holding suspects for the purpose of questioning them. Like risks of ill-treatment of persons in custody are involved. I would favour lessening this risk of ill-treatment in the interests of both suspects and gardaí. I consider that this rule of law should be somewhat modified and that a suspect should be required to answer certain questions. A refusal or failure to do so might be made the subject of comment by the judge at the trial and/or by the Prosecution with the leave of the trial judge. The jury should be told to draw what inference they think proper and commonsense from a refusal to answer all or any such questions. Such questions might relate to identity and address, marital status, explanation of stains on clothing, property (including money) found upon the suspect, an account of his dealings with a vehicle believed by the gardaí to have been used in a crime, his movements for a specified period of time before and after the crime, and some other kindred questions to be set out in a statute and strictly limited. Outside of such matters the suspected person would retain his right of silence, as at present, quite unimpaired.

Barra Ó Briain signs his addendum. This is what is being suggested here in an even more limited way than Barra Ó Briain has recommended.

On the amendments proposed by Deputy Woods the effect of both amendments is to prevent an inference being drawn from, as the case may be, objects, marks on an arrested person or from his presence at a particular place at or about the time the offence in question is alleged to have been committed. The section, if amended as proposed, would simply provide that any such failure or refusal to account for these objects might be given in evidence against the accused where the failure or the refusal was material. The problem is that is the present law and there is nothing to prevent the arresting garda from saying that he asked the accused to account for an object and he failed or refused to do so. No inference can be drawn from the failure or the refusal, so the proposed amendment would leave the law unchanged in effect. The amendment would nullify the efficacy of both sections. On that basis, subsections (4) and (5) would also be pointless, although the amendment does not propose to delete them.

The sections are justified on the basis that it is no more than commonsense and that an inference should be drawn from a failure or refusal to account for say, a blood stain or one's presence at the scene of a crime. In deciding whether an inference should be drawn, the jury will be guided by the judge's directions. There is no question of somebody being pulled in just because he happened to be near the scene of a crime. The person must be reasonably suspected of the offence before he can be arrested. The reasonableness of the suspicion must be investigated by the courts.

Since somebody cannot be found guilty solely on the basis of an inference, before he will be brought before a court there must be other evidence. The argument that this is casting the net too wide and that people who simply happen to be near the scene of a crime can be arrested and brought to the courts and sent to prison does not stand up because an inference on its own cannot possibly convict a person. Secondly the person must be reasonably suspected of the offence before he can be arrested. The courts are certainly competent to decide that in this instance, whatever arguments we have had about reasonableness previously.

Since the exercise of the test of reasonableness here will be carried out by the judge who is sitting at the trial, I do not see any problem with that. If the judge's assessment is that the suspicion was not reasonably based, there is the possibility of an action for false imprisonment. Again the arguments advanced by some people against section 3 are not relevant because somebody would be in court and it would be for a judge to decide in this instance.

As well as that, before an inference can be drawn a member of the Garda Síochána must reasonably believe that the presence of the object, the mark, or whatever, may be attributable to the participation of the arrested person in the commission of the offence in question. Again there must be a reasonable belief linking the object or the mark with the offence. This can be tested objectively. The arresting garda must tell the accused in ordinary language and, as I said, this will involve a change in the caution which is being administered.

Deputy Woods raised quite a number of specific points. I think I have dealt with most of them. He referred to the possibility of having some mechanism whereby the Garda would be required to give some form of documentation. I think his idea was that the person being questioned should be provided with some documentary evidence of the questioning and of the questions asked. That would be a very difficult procedure. For example, the questioning is most likely to take place immediately after arrest rather than in a Garda station. If somebody is arrested on reasonable suspicion of having been involved in a crime, and he is at the scene of the crime, questioning could occur straight away. If somebody has an object in his possession, tools for breaking and entering, for example, which might be associated with the crime, questioning could arise almost immediately. It would be very difficult to administer that.

I can see the difficulty to which the Deputy has referred. I will examine whether the regulations, without being too complicated about it, could provide for the evidence to be recorded. The amendments proposed by Deputy Woods have the effect of cancelling the sections. Rather than amending the section the sections would be of no benefit whatever if the amendments were accepted.

The amendment would have the advantage of cancelling the section. To me that would be the great advantage the amendment would achieve. I do not intend to take up the time of the House. Other people who want to make a contribution have come into the House. In relation to the Ó Briain Report and the addendum proposed by Judge Barra Ó Briain I would not wish in any way to take issue with that learned gentleman. His contribution in his capacity as a judge and outside the courts of law is beyond question. His contribution to the State in other respects is also beyond question. His record of service on and off the bench is uncontested and uncontestable.

In common with other people far more proficient in criminal law, I have expressed the gravest reservations about this section and the philosophy behind its drafting. Deputy Woods has already expressed the general concern of the Opposition about the section, the shifting of the burden of proof, the inferences and other related matters, the fact that the judges' rules would be effectively abrogated in the sense of their application to this section.

The Association of Garda Sergeants and Inspectors have expressed a view. The Incorporated Law Society have expressed the deepest reservation about, if not outright opposition to, what the section contains. In addition the Association of Criminal Lawyers have expressed serious reservations. The accumulation of all that legal wisdom must have some relevance to the Minister, apart altogether from what we as ordinary Dáil Deputies might have to say about it.

I must genuinely hope that the Fianna Fáil Party oppose the section. If they were not to oppose the section I would be seen to stand here voice voting once more my total opposition to the section as drafted. I do not intend to enter into the farce of voice voting a mere back-bencher's opposition to the section. I should like to place on record my total opposition to it. Deputy Woods has made a very reasonable and reasoned statement on his opposition to it. The Minister has responded in kind. Having regard to my stated opposition to the section as drafted and the philosophy it contains, naturally I am prejudiced and I will come down on the side of Deputy Woods. Without going into the nitty gritty of all the reservations which have been so properly set out for the Minister by Deputy Woods, I want to place on record my total opposition to the section.

I see section 17 almost in the same light as section 16. The Minister very wisely buried the old section 16 without honour and I do not see why he cannot similarly bury section 17, or alternatively accept the amendment proposed by Deputy Woods. I know the Minister has said that if the amendment put down by Deputy Woods is accepted effectively that will do away with the section as drafted. I am not naive enough to think that the Minister will accept the amendment because by so doing he would undo all his work. Therefore, I do not ask him to accept the amendment. However, when it comes to the crunch and when it comes to voting for or against the section I ask that we be consistent in opposition and that we vote against the section. I do not intend to go through the farce of standing up and calling for a division to voice my opposition but if I had the opportunity and had sufficient Members on my side to challenge a vote I would do so. However, that is not a reality and I am not in the business of unreality. I congratulate Deputy Woods on his contribution setting out our opposition to the section as drafted and I support him entirely. I hope when it comes to the crunch he will challenge the philosophy of the section. I am not asking him to challenge the Minister in any intimidatory fashion: all I am asking is that the Opposition challenge section 17.

In my opinion section 17 is a wicked section. The Minister used a strange example about the blood stain, about the garda giving evidence, about the prosecution not being in a position to pursue that evidence and about the judge directing the jury. I am not a criminal lawyer but regularly I address civil juries. I have the greatest of respect for the men and women who serve on juries but I know that if one sows something in the minds of a jury they inevitably hold on to it and it may well colour their judgment. If there is a miscarriage of justice as a result of this section we will be doing a very bad day's work here.

I am not in the business of putting Deputy Shatter into a corner. Deputy Skelly has been honourable in his opposition to the Bill and Deputy Taylor has also spoken on it. I am appealing to those three individuals who have been continuous in their contributions to the Bill to have a look at this section and try to help us out of our dilemma. On the one hand we want to give the Minister the good parts of the Bill, to give him those parts that seem correct to deal with what is a real emergency crime situation but, on the other hand, we are being dragged into apparent support for this and the following sections. I find that an invidious situation because I am totally opposed to the section. I am looking for support from Deputies on the other side who have a similar point of view with regard to the section. The philosophy and the whole concept of the section is wrong.

I wish to raise a point that has been raised by the Association of Criminal Lawyers with regard to section 16 and which probably has application to sections 17 and 18. The association state:

The draftsmen must not have been aware that (a) above could never arise as at that stage the accused will not have disclosed his defence and the justice in deciding whether or not to send the accused forward could not be in a position to say whether he failed at the relevant time to disclose a material fact.

They are suggesting that in drafting the Bill the cart was put before the horse and I ask the Minister to consider this matter before Report Stage.

The right to silence is very irritating for those whose job it is to prepare a prosecution in the case of criminals, sometimes hardened criminals. If a person is caught with his hand in the shop window of a jeweller and remains silent that fact cannot be mentioned in court. That is very difficult but in overcoming that problem are we getting away from the concept of innocent until proven guilty? Some people argue that we are. Some of the learned lawyers whom the Minister has quoted would advocate changes, but not necessarily an entire change, in the right to silence. We should be very careful when we look at this section.

One of the problems is that this occurs when there is no independent witness present and presumably when the accused is in custody. The whole proceedings have not been recorded and there is no record the defendant can produce in defence of his or her case. It smacks a little of the Offences Against the State Act where a chief superintendent can give evidence that he believes a person was a member of the IRA at a given date and that suffices as evidence. We are getting to the stage where the word of a person can be presented as evidence but where the defendant is not in a position to present contrary evidence. Most evidence has to be substantial, it has to be examined and can be held up to objective testing. We are getting to the stage where the arresting garda can say that he had a reasonable question to ask which was not answered to his satisfaction and the procedure can be used, with other evidence, against the accused. I ask the Minister to consider the whole question of recording or having some formal record of the arresting garda's evidence regarding a person remaining silent. That should be recorded somewhere and the person concerned should be able to have that record examined as part of his defence.

There does not appear to be any limitation in the section such as confining the matter to the identity and address of the person, marital status or explanation of stains and this point was raised by the Association of Criminal Lawyers. The Minister should consider the opinions expressed in this House with regard to this matter before coming back to us on Report Stage. I appreciate the difficulty of the Minister. At public meetings we get many complaints when crime is discussed. It is complained that if persons are caught in the act of committing a crime they are not able to mention it in court. In trying to deal with that, we may be getting into avenues which would not be in our best democratic interest and I ask the Minister to consider the various comments and suggestions made on Committee Stage so that we can look at the matter again on Report Stage.

If the accused is asked for a certain explanation and he refuses or fails to give that explanation could the Minister explain the difference between the word "fails" and "refuses"? I presume the draftsman is referring to someone who gives information which is false instead of refusing to give any information and that that is failure to give information.

Deputy Woods has expressed our position on the Bill very cogently. While I agree with Deputy Andrews that we must be dubious about the philosophy that underlies the section, we have not gone so far as asking the Minister to withdraw it or to deny the philosophy which lies behind it. We proposed quite a reasonable amendment to this section which has the intention if not the effect — we can dispute that as we debate the wording of the amendment — of simplifying this legislation, because the Minister must accept, as this side of the House do, that legislation of this sort which constitutes a further curtailment of civil liberties should be as simple and understandable to the ordinary individual as possible.

From the legal point of view, I find myself in the rather peculiar position of agreeing with what the Minister said in his initial reply to Deputy Woods. I do not think our amendments are going to do anything in regard to existing law; they will leave it as it is. We want to bring about a situation whereby not only can the failure or refusal to give an explanation be mentioned but that it can be commented on. We want it to have the status where it can be presented in evidence and commented upon and where it will constitute part of the totality of the evidence upon which the court makes a decision. My contention is that this could be done in simpler fashion than in this section. The lines proposed to be deleted by us are quite complicated and complex and can give rise to may interpretations and legal difficulties. I ask the Minister to consider something between our amendment and the section as drafted which will simplify the law which is going to be introduced by this section but which will nevertheless, allow the Minister to achieve what he is trying to do.

Subsection (3) of the section states that subsection (1) shall not have effect unless the accused is told by the garda in ordinary language what the effect of his failure or refusal will be. It is very difficult to imagine how a garda can tell an accused in ordinary language which is intelligible to the accused that if he fails to account for the presence of the object or mark or whatever that the court may draw such inferences from his failure as may appear to the court to be proper. He must go on and explain again, presumably in ordinary language, that the failure or refusal may — not necessarily shall — on the basis of such inferences be capable of amounting to corroboration of other evidence. It will not be treated as being capable of corroboration of any evidence; it will be treated only as being capable of amounting to corroboration of evidence in relation to which the failure or refusal to give the explanation is material. It is very difficult to understand how a garda can explain this to an accused in ordinary language which will be intelligible to the accused.

We are not proposing to delete the lines because we do not believe they should be in the legislation. I am dubious about it and Deputy Andrews has also expressed doubts. Our amendment, nevertheless, is designed to simplify it and to bring about a situation where it can be explained in ordinary language to a layman. Between now and Report Stage we should be able to come up with something which will achieve what the Minister wants to achieve and I understand he has difficulties in relation to this area. We could do this in simple, intelligible language which can be explained in ordinary language by a garda to an accused person. Would the Minister be prepared to consider accepting such an amendment or to look at the section between now and Report Stage to see if his own draftsman can come up with an amendment to simplify the section and to make it understandable and intelligible? It is a further curtailment of civil liberties but, presumably, in the Minister's opinion it is necessary.

I appreciate the Minister's concerns and worries and, to a non lawyer, it has always been inexplicable that someone who is found with bloodstains on his shirt at or close to the scene of a murder or found in possession of an item which would indicate that he may have been involved in a crime cannot be required to explain himself. It has always been a fear that people who should properly be convicted of offences have, by using the right of silence in this area, not been convicted.

The difficulty that arises under this section relates to the reasons for the rules as they exist which are largely designed to ensure that innocent people are not wrongly convicted of offences. That concern arises particularly under sections 17 and 18 in that if somebody is standing at the scene of a bank robbery in Grafton Street and is questioned by a garda as to why he is standing there it is not unreasonable to answer that he was waiting to lodge a cheque or was just passing by when he saw a man running out. That is a reasonable explanation and it is not unreasonable to expect people at the scene of a crime to give an explanation as to why they are there. I do not think injustices are likely to occur under section 18 but I am concerned that injustice is likely to occur under the provisions of section 17. Deputy Woods's amendment would effectively remove the effect of the section. I understand the area of problems with which the Minister is trying to deal. My concern is that in dealing with it and facing up to it we may create and give rise to another problem — the conviction of innocent people. I am also concerned that the section cannot work.

I take the point made by Deputy O'Dea in the context of the phrase "ordinary language". I do not understand how a member of the Garda Síochána can explain the meaning of this section in ordinary language to somebody who has been arrested for an offence. I do not know what that phrase means. I presume it means language of a nature that is different from the language used in the section. How is anybody to know how an individual garda can legally explain to an arrested person the meaning of the section? If he uses language different from the language in the section it is quite probable, unless the garda has legal expertise far greater than we normally expect from a member of the Garda Síochána, that he may convey something quite different from the meaning of the section to the person arrested. Alternatively if he uses the legalistic phraseology of the section it will not be understood by the ordinary person who is arrested for an offence. It is impossible to explain this in ordinary language.

The Minister's intention is that no inference should be drawn against somebody unless he fully understands how an inference can be drawn. That is the correct intention but I do not think it can realistically operate. I do not believe the phrase "ordinary language" will work. My recollection is that a similar phrase was used in the section which the Minister has now deleted. This is a major flaw in the section, although it was well intended. It will create an additional problem in that if in a trial on a criminal action the issue arises as to whether an inference should be drawn we will have trials within trials where it is debated whether a member of the Garda Síochána did or did not explain the effect of the section in ordinary language, what the nature of the explanation was, whether the recipient of the explanation understood it. Is the comprehension of the explanation essential before an inference can be drawn?

My concern is that rather than assisting the Garda in their prosecutions this may impede the administration of justice, although it is not designed to do so. Whenever an inference is suggested within a trial, we will have trials within trials. We will have prolonged debate by way of legal submission and long cross-examinations to ascertain the exact verbiage of the explanation given in ordinary language by a member of the Garda. The section does not deal with the question of whether the garda must be satisfied that the recipient of the information comprehends it. Is that an essential part of this section? That is a fundamental problem with the section as drafted and I do not see a way around the difficulty. I accept fully that the courts are practical bodies and judges are practical judges and I would anticipate that the courts would eventually through a whole series of case law provide us with a definitive interpretation, but it will take many criminal trials. We will still have the position of trials within trials. I hope the Minister will take this point in a constructive way. I do not mean to be destructive of the section in flaying out wildly at it to make an academic point. It is a very serious point in the context of the administration of the criminal justice system.

If we take it that the section can work in the manner it is designed to work, let us consider the case of somebody who is suspected of being involved in a murder. There is a blood stain on his shirt, he is charged with the murder and there might be other vague circumstantial evidence that suggests a motive for murder. The existence of the blood stain on the shirt could result in the jury or the court drawing an inference of guilt. Initially that would be common sense. If I have a blood stain on my shirt and I am charged with murder it might be regarded as reasonable that I should explain how I have a blood stain on my shirt. If I am charged with other crimes and somebody finds a substance on my clothing which might indicate that I have been involved in the making of bombs, or finds a firearm on my person, it might be reasonable to suggest that I should be able to give an explanation as to why it is there. What is the position if I have been "framed", if somebody has sought to set me up for conviction for a criminal offence, if somebody, unknown to me, has borrowed my clothing and left it back in my house with blood stains all over it, having committed a murder? If I am asked by the Garda how the blood stains came to be on my clothes I will not be able to give an explanation. That is a failure to give an explanation within the meaning of section 17 (1) (c). If somebody places a substance on my clothing with a view to framing me for a particular offence and I cannot give an explanation as to how the substance is there, an inference can be drawn if I am charged with that offence. That is my concern about this section.

Throughout this debate we have constantly made the point that the vast majority of gardaí perform their functions properly and honourably and will always do so. We have equally made the point that in extending and changing criminal law in the way we are doing we must protect people against possible abuse by a very small minority of members of the Garda. We are all aware that it happens on rare occasions. What happens if a member of the Garda anxious to procure a conviction, not necessarily as dedicated as other members and wanting for personal reasons to advance his career, plants an object onmy person, possibly indicating that I had some involvement in a criminal offence? He may say in court that he reasonably believed me to be involved in a criminal offence and arrested me and found a mark or an object on my person, be it a firearm or a substance. The garda may have been responsible for placing that substance in my jacket, unknown to me, or for making a mark on me. As the accused person, I am asked to provide an explanation as to how it got there and I do not know. Another garda might place a substance on a person's clothing and a colleague might find it and the accused person would be unable to provide an explanation.

That is the concern with this section — the failure to provide an explanation where somebody has been framed, made to appear guilty of having committed a crime, or failing to provide an explanation when something has been planted on him by an unscrupulous member of the Garda Síochána, or by somebody else who wants to get him into trouble. It can give rise to an inference being drawn which can result in a person being found guilty of a serious crime. I want to emphasise that I am not suggesting that the vast majority of gardaí would ever consider behaving in that way; in no circumstances am I suggesting that. Nevertheless we are anxious to ensure that the innocent are not found guilty of serious criminal offences. Historically, the rules which exist at present, and to which the Minister referred very expertly in his comments a short time ago, have existed because our law has sought to bend over somewhat toward ensuring that the innocent are not found guilty.

The problem about the provisions of this section, as drafted, is that in trying to ensure, as we are anxious to do in this House, that those who have committed criminal offences are found guilty, we are bending too far in the direction of implicitly acknowledging that we are going to have to sacrifice a few innocent people to ensure that the guilty are sentenced and imprisoned. In a country with the constitutional provisions we have, in which we have the civil liberties that exist at present, that is not something I am happy about. Equally I am not certain that this section will in any way increase the conviction rate the Garda are achieving at present in their fight against crime. I am concerned that, in this section, we may be going too far.

Throughout the course of this debate the Minister has been laudably open-minded in listening to contributions by Members of the House far more than any other Minister of any other Government of which I have had experience in my time as a Deputy here since 1981. He has been willing to listen to reasoned argument and been willing to introduce appropriate amendments where he felt valid points had been made. The Minister listened to reasoned argument on section 16. Much of the debate on Second Stage was concerned in the context of the inferences sections, with section 16 and the worries relating thereto.

Possibly on Second Stage none of us Deputies considered in sufficient detail section 17 and the dangers I see implicit in it. I would ask the Minister to apply the same open-mindedness to this section with a view to taking into account some of the comments made by myself and other Deputies to reconsider its provisions in the context of Report Stage. In our desire to ensure that those who commit horrible criminal offences are convicted, we should ensure that we do not sacrifice innocent people, placing them in jeopardy, or wrongfully convict them of having committed serious offences, in particular to place innocent people in the position of being set up as being guilty, or of having committed criminal offences they have not committed. That must be seen as one of the major concerns of this section. In a sense I am less concerned with section 18 and its possible effects on section 17. That distinction should be drawn. There are many dangers inherent in section 17 which, in practical terms, are not inherent in section 18. Again, in the context of section 18, the Minister correctly said that for people to be required to give an explanation as to why they were present at the scene of a crime they must be reasonably suspected of an offence. I suppose the fact of being present at the scene of a crime might result in somebody being reasonably suspected of committing an offence and an inference might be drawn. But unless somebody is present at the scene of the crime and is so drunk as to be incapable of knowing why he is there, and unable to give an explanation, it is difficult to see the provisions of this section necessarily resulting in the injustice that could result from the provisions of section 17. I presume that if people are drunk outside a bank when a bank robbery is taking place, they are asked by a member of the Garda Síochána why they are there and they are arrested and charged with being involved in the bank robbery, evidence of the fact that they were drunk and unable to give an explanation would certainly result in no court raising an inference.

It is very easy to lump sections 17 and 18 together. I would be concerned that the dangers that do exist largely exist in the context of section 17. I would be concerned that the Minister would have another look at that section in the light of the comments I and other Deputies have made with a view to our dealing with this in a somewhat different way, if not removing the section then certainly seriously amending it on Report Stage. I am not sure there is a solution to this that would not require the deletion of this section but certainly I feel the need to deal with the points I have raised.

We are opposing sections 17 and 18, as we did section 16 which the Minister has withdrawn. It is perhaps unfortunate that the Minister did not give the House the reasons he withdrew section 16 because such could have thrown some light on the effects of the provisions of sections 17 and 18. In my view sections 17 and 18 constitute extensions of section 16 in that they directly limit the right of a person's silence, the right of people to remain silent even before they have been charged. They may have been arrested but they do not necessarily have to be charged when the questions referred to are asked of them. In relation to section 17, if people are asked questions as to the reasons for having, say, stains on their clothing and they simply said they did not know, would the Minister say if that would constitute a refusal to reply, or would an inference be drawn from that type of reply? It may well be that in many cases there are stains on clothing for which a person may not have a ready explanation.

By and large we are dealing with the generality of people who come to the attention of the Garda, who will be frightened when they are taken into custody or are arrested by the Garda and who are at a loss to know what they ought to say or not as the case may be. They do not have available to them at that time legal advice of any kind nor are they entitled to such at that point, nor to seek legal advice before replying to the questions put to them by the Garda. It is important to note also that we are not talking about sections which allow a judge or jury to draw an inference from particular objects, or the presence of a person in a particular area, but simply the fact that they do not give an explanation for those stains or objects or for their presence. As the Minister explained, inferences can be drawn already from particular objects being found in a person's possession. But in my view to oblige a person to reply to particular questions which could conceivably incriminate him, rightly or wrongly, constitutes an attack on a person's right to silence. For that reason I do not support these two sections. The case has not been proved that the right to silence has in any way or to any great degree restricted the Garda's capacity to convict. Available evidence would indicate that 80 per cent of those convicted are convicted out of their own mouths as a result of confessions made by them. Presumably the remaining 20 per cent are convicted as a result of evidence gathered by the Garda in the course of their work. Such statistics do not indicate that the right to silence of an accused person is to any large extent hindering the capacity of the Garda to get a conviction. What concerns me most of all is that these questions will be put by a garda at the time of arrest and that person will not have any advice one way or the other as to whether it is in his or her interest to reply to those questions. It is a fairly severe attack on a person's right to remain silent. It is a basic right of people in this State not to be asked to incriminate themselves and for that reason I oppose sections 17 and 18.

As I understand it, if a person has a stain on his or her clothing or an object in their pocket an inference cannot be drawn from that alone which would find them guilty. There must be some additional evidence to support that find. In modern times we often get stains on our clothing and carry objects that may be hard to explain. For instance, in my last occupation I dealt with coin boxes that got blocked fairly often and I often carried a knife to free those boxes. I often wondered what would happen if I got mixed up in a street fracas where knives were being used by two gangs of people fighting and was arrested and searched by the Garda while I had the knife in my possession. If I was charged how would I satisfy the Garda about my possession of the knife? It is quite possible that my explanation would not satisfy the Garda and I might find myself before a court. In that case the additional evidence the Minister spoke of earlier would be introduced, that I had a knife in my pocket and I had been arrested at a place where people were using knives although I was completely innocent. As Deputy Andrews said, that might colour the minds of a jury when considering their verdict. I should like the Minister to spell out clearly what paragraph (c) means.

The measures being introduced in these sections cannot be looked at in isolation. They represent a major intrusion and reversal of the entire history of the criminal law going back for hundreds of years. They are combined in the Bill with another link measure which will work in interlocking fashion with these, the measure authorising a member of the Garda Síochána to arrest a person merely on suspicion. The combination of these two items is a very lethal development. The fact is that the Garda may under this legislation arrest and detain a person for many hours on suspicion and under these sections call upon that person before he or she is charged with an offence before any independent personage of authority is brought on the scene to submit to cross-examination. The fact that a cross-examination was to take place hitherto required the presence of an independent judicial personage, a district justice or whatever.

If there is to be a cross-examination before charging I believe the entire proceedings should be recorded or an independent judicial person be present. To attach a guilt position on an arrested person by reason only of the fact that he does not immediately in a critical situation come up with reasons, answers and explanations to a cross-examination by a member of the Garda Síochána could give rise to a miscarriage of justice. A person may remain silent for various reasons. Perhaps the person does not have the ability to articulate a position clearly. Perhaps the person is in a state of fear arising out of the consultation he finds himself in with people in power, namely gardaí, throwing authoritative questions at him. One can visualise a situation where a person could be constrained through fear from giving answers at all.

A person could well be in fear from finding himself in an unaccustomed position or environment and, following on the results of being held in isolation for many hours, that person may make a rational decision not to say anything. The person concerned could be a stubborn individual when confronted by agents of the State. It may be a bad thing to be stubborn in that situation but it does not involve inferences of crime. The question of stubbornness and refusal to give an answer would then become a very substantive measure of evidence when the case would go to hearing. A person in that situation may believe that the allegations against him were so baseless and outrageous that they would not warrant a reply. He could be so appalled by what was being put to him that he would wave the whole thing away as an outrage but in doing so could put himself in a serious position, he, perhaps, being an innocent person. It could be that the person would not understand the process in which he was participating unwillingly. The person may be downright stupid and not have the grip at all of the process that is taking place. He may not understand the niceties and intricacies of the sections of this Bill and be quite unaware, notwithstanding an explanation given to him by a member of the Garda Síochána, that certain serious consequences from an evidence point of view would follow if he did not answer the cross-examination questions put to him.

If these measures are enacted in their present form without any alteration I believe there would be constant allegations by accused persons against the Garda that evidence given that they were requested to explain marks, conditions or whatever, were pure fabrication. The question of determination of those allegations, as Deputy Shatter rightly pointed out, will give rise to endless confrontation and endless conflicting evidence back and forth. I do not think criminal lawyers or criminal courts will look forward to that with any degree of equanimity. I suggest for the Minister's consideration a possible amendment which would to some extent alleviate the position and, perhaps, improve it. My suggestion is that we provide at the very least that the member of the Garda Síochána in this situation be obliged to provide the person arrested with a written statement of his or her belief and incorporate in it the request to the person to account for the presence of the object, substance or mark, and that the tendering of the written statement and request be accompanied by a request to the person concerned to acknowledge receipt of it by signing it if he so wished. In that way the matter would in some measure be transferred from purely verbal confrontation into a written element and at least the person would have the opportunity of having a written document which he could have some time to examine and read and have a better understanding of than he might very well take up from a verbal communication put to him under unfriendly circumstances by a member of the Garda Síochána. I would ask the Minister to have a look at that suggestion and perhaps consider it for incorporation in the Bill on Report Stage.

(Limerick East): First of all, I would like to thank Deputies for their contributions. Deputy Mitchell began by making points which were made by, I think he said, one of the groups who made a submission on the Bill. The points he made applied to section 16 which has now been withdrawn. They did not apply at all to section 17 or section 18. The point was that under section 16 an inference could arise from the failure of an accused to mention a fact that became part of his defence subsequently and that at the early stage of questioning by the Garda the accused could not be expected to know what was or was not evidence material to his defence. Now that section 16 is gone there is no carry-over effect to section 17 or section 18 of that concept. Section 16 concerned the case of the accused failing to mention something. Sections 17 and 18 apply to his failing or refusing to give an account. There will be evidence of this at the preliminary examination stage and a justice can take it into account if proper, but only if proper, in deciding in the first instance whether to return the accused for trial and subsequently, if there is a trial before a jury, it will be a matter for the judge to direct the jury whether it is proper to draw an inference.

Various Deputies referred to section 16. I stated, when the amendments were published, my reasons for withdrawing section 16. I said that it is widely drawn, that it could apply before arrest, whereas under these sections one has to be arrested on reasonable suspicion. I said also that I proposed to withdraw it because of the consensus of opposition and that I believed that in a Bill as serious in intent as the Criminal Justice Bill it was desirable for me to seek to achieve as much consensus as I could. I think the withdrawal of section 16 certainly has had that effect. I never had any difficulty with the principle of section 16. My position remains the same on that. I did not withdraw section 16 because we had a change of mind about the principle involved. The points made by Deputy Mitchell are appropriate to section 16 but not to section 17 or section 18. That is why I am referring to section 16 here.

Deputy O'Dea asked me initially to distinguish between "fails" and "refuses" in the section as drafted. A failure would be to rely on remaining silent altogether and say nothing. A refusal would be for the person arrested to say that he will not give an explanation. Therefore, on the one hand one remains absolutely silent, — that is a failure — on the other hand one speaks to affirm that one will not give an explanation.

The question of ordinary language has been brought up. Of course, there is no intention that the Garda will take the Bill around in their pockets and quote the sections. It is intended that it will be non-legal language, ordinary language, in the sense that ordinary people will understand it. However, it will not be left to the discretion of the Garda to judge what is ordinary language and what is not. I have said in my previous submissions that there would have to be a new caution to meet this requirement of ordinary language. Obviously, there would be variations on it because we are talking about objects, marks, present at the place of a crime, so there are those variations on the specifics of sections 17 and 18. Gardaí, of course, will be given instructions as to the caution which it would be appropriate to give. The form would have to be worked out with the Attorney General so that the caution would be a proper caution, legally proper as well as in ordinary language. There is no question of the Garda trying to cope with the technical language of section 17 (1) or section 18 (1). As we move along to the stage that tape recording gets off the ground, a taped record will be available in many instances.

Section 18 would be more likely to apply outside the Garda station than in the Garda station in the sense that it is specifically confined to giving an explanation of being near or at the scene of a crime and requires, before it can be used, being arrested and reasonable suspicion that one was involved in a crime. I can envisage a situation where questioning by the Garda could arise immediately and a person might be required to explain his presence at a place rather than in the Garda station, and that certainly would not be taped. The intent of the new caution and the ordinary language is pretty clear. We have not yet worked out the formula. We must consult the Attorney General on it. For example — and this is not meant to be definitive — a garda might say: "You have what look like bloodstains on your shirt and I believe that these stains show that you were involved in the crime. Tell me how they got there. I must warn you that, if you do not or will not tell me, the court or jury, if you are tried, may hold your refusal against you". That is fairly ordinary. I am not advocating that as the caution; I am just trying to give an example of the type of caution in ordinary language which might be used and which would be easily understood.

It would lead up to a cross-examination.

(Limerick East): There is no obligation to speak. The person can refuse and then there is the problem of the inference in the court. If somebody is detained under section 3 the Garda have the right to ask that person a number of questions anyway. This does not extend it in any way. There are other possible formulae of words. By giving an example here I am trying to give the general flavour and intent of the subsection rather than putting forward a definitive formula of words.

Deputy Shatter made the point that there could be long arguments initially in the cases being taken to court. There would be the trial within the trial and anxiety on the part of the defence to prove that the language was not ordinary, that the Garda did not have reasonable suspicion on arrest. Many of these issues would arise. I expect that this will happen initially no matter what form of words is chosen. I presume that any criminal lawyer working for the defence will seek to interpret the Act formally before the court. I am sure that in many cases our intent will be examined and the courts will give decisions on that. That will occur with anything that we do here. Already we have an amendment which says that these sections 3 to 8 and 13 to 18 will lapse after four or five years unless renewed by the Oireachtas. I am coming in on Report Stage with a four-year time period. There will be a period in which to evaluate what is happening in court and a period to monitor the effects of these sections. They may be interpreted by the courts either in a more restrictive or in amore liberal way than I intended; but that, too, will have to be monitored.

Deputy Shatter talked about framing people, about planting blood stains on another person's clothes, for instance. On the question of giving an explanation, he gave two examples — forensic evidence of possession of illegal firearms or the stealing of someone's clothes with the person who stole them murdering someone and then returning the clothes covered in the blood of the victim. The person suspected could be asked for an explanation and Deputy Shatter posed the question of what would be the position of such a person failing to give an account. I do not know if that would be failure to give an account but the arrested person should hardly stop there. He should say that when he got home he found the blood-stained clothing in his house but that he had no idea of how they had become blood-stained. That would not be failure to give an account. It would be an explanation in so far as the person being questioned could give an explanation. It might not seem a very adequate explanation but once an explanation is given, the terms of section 17 would not apply.

If someone is being framed in such an elaborate fashion he has a problem without section 17 being law at all if the blood group matches that of the victim and if he cannot give an explanation. If he has an illegal firearm which can be traced to a murder or to any other crime, he has a problem. Deputy Shatter has put the case as if the implications of section 17 would bring about a situation where innocent people would be found guilty in the sort of cases he gave as examples. The danger is very real that they would be found guilty either with or without section 17 in such cases. A person framed in that way would not be the one to refuse an explanation. He is the one who would be at pains to explain that so far as he was concerned he did not know where the blood-stained clothing or the illegal firearm came from, that he was elsewhere when they were planted in his house.

Deputy Shatter made a number of points on this and there is one in particular I should like to refer to. He said he did not have the same difficulty with section 18 as with section 17. He talked about a person standing outside a bank after a robbery had occurred in the bank and being questioned by a garda as to why he was standing there and replying that he had been on his way to cash a cheque. That would not arise although the Deputy suggested it in a manner which indicated that he found it acceptable. Section 18 does not go that far. The person would have to be suspected of involvement in the crime and then arrested. The Garda, in terms of suspicion, would have to be able to tie in the person's presence with the crime. The idea of someone being drunk or simply being near the bank at the time on legitimate business but falling foul of section 18 could not arise. Yet Deputy Shatter considered the kind of scenario he presented to be acceptable. What is involved in section 18 is far more restrictive than that.

Deputy Shatter referred also to a trial within a trial and spoke of the inhibitions on the Garda and so on. I will take his views into account. He has made many contributions to the Bill and many of these have been beneficial to me.

Deputy Shatter argues on the one hand that the section cannot work. If it cannot work there is no problem. He spoke about the possibility of innocent people being convicted. If the Garda are inhibited by the section, innocent people will not be found guilty. The Deputy raised four or five points which are all good debating points but some of them are not valid because one contradicts the other. They are mutually exclusive.

Deputy De Rossa also mentioned a number of points. If an accused person innocently acquired blood stains and genuinely did not know about them, an inference would not be proper. However, the Garda must reasonably believe that the stains are attributable to the participation of the person in an offence. He would be liable to cross-examination and if he had an innocent explanation it would be probable that the charge would not be brought or, if brought, that he would be acquitted. On the other hand, if he refused to give an explanation, why should an inference not be proper?

There are people who disagree with the principle involved. There are others who do not disagree with it but who are concerned about the practical operation of it. This can be worked out only in a court. If a garda says in court that an accused refused to give an explanation as to how his clothes became blood stained, the garda will be liable to be cross-examined by the defence. The judge, listening to the situation, will weight it up and decide whether an inference is proper. He would then instruct the jury accordingly. We are not talking about a situation in which the Garda would have the right to insist that a court draw inferences as if there was no judge present.

Deputy De Rossa asked also about access to a solicitor and about whether it would be proper to have legal advice. If somebody has been charged he cannot be questioned. The power to take a person to a Garda station in the first instance would be under section 3. Under section 4 we have provided for the right of access to a solicitor. The right of access to legal advice is an existing right, but a person will have to be informed of it. Somebody could be questioned before reaching the Garda station or before a solicitor had arrived but the access to a solicitor is provided for. There is also a right to private confidential conversation out of hearing of the Garda.

Deputy Doyle talked about carrying a knife. Obviously, there would be difficulties for someone found in that situation. A knife could be termed an offensive weapon if it was found at the scene of a knife fight and if someone had been wounded or killed. The only way section 17 would affect a person in such circumstances is that he would have to give an explanation as to why he was carrying a knife. If the person gave an explanation no inference would be drawn but there would still be a problem.

Dr. Ruaidhri Roberts, the General Secretary of the Irish Congress of Trade Unions and Mr. Patrick Malone, the former Commissioner of the Garda Síochána, were members of the Ó Briain Committee. Mr. Justice Barra Ó Briain was its chairman. The committee's terms of reference were to recommend with all convenient speed whether, and if so, what, additional safeguards were necessary or desirable for the protection against ill-treatment of persons in Garda custody. In his addendum Justice Barra Ó Briain looked at this and stated:

This right of silence can be no less frustrating to gardaí honestly and dutifully investigating a crime, than the prohibition on holding suspects for the purpose of questioning them. Like risks of ill-treatment of persons in custody are involved. I would favour lessening this risk of ill-treatment in the interest of both suspects and gardaí. I consider that this rule of law should be somewhat modified...

Deputies have put forward the argument that section 17 provides gardaí with a mechanism for pressuring and framing people and ill-treating them while in custody. Ó Briain took the opposite view and felt that the frustration experienced by gardaí by being in the company of someone who picks out a spot on the wall and insists on looking at it and refuses to answer any question leads to the kind of build-up of frustration which could result in the ill-treatment of people while in custody. Ó Briain was not giving free advice on the legal system when he wrote his addendum. What he was saying was that he felt the power of having a reasonable period of detention for questioning and the introduction of the power to draw inferences in this limited way contributed to the better treatment of people in custody. If a person refused or failed to give an explanation about, for example, a bloodstain or a mark, the garda could say to himself: "I do not have to keep questioning. It will be portion of my evidence in the Book of Evidence that the accused failed to comply with section 17 or section 18." That would be part of the case against the accused. That line of argument is as legitimate in my opinion and in that of Justice Barra Ó Briain as the argument which says that sections 17 and 18 are sections which enable gardaí to ill-treat people in custody.

Deputy Taylor spoke about combining section 3 and section 17 or section 18 to provide gardaí with a lever for pressuring people. He said we should not look at them in isolation but remember what has already been done. I referred to the Ó Briain Report to give the other side of that argument. The vast majority of the Garda are good and dutiful. They are interested in solving crime and do not wish to ill-treat anyone. They are being provided with a civilised way of dealing with this dilemma. If someone refuses or fails to give an account an inference can be drawn in court if the judge considers it proper. The garda will have done his job.

The problems of fear, inhibition, inability to articulate or a person of a stubborn disposition and a rational desire to say nothing, or a person who does not understand the process have all been mentioned by Deputy Taylor. The position is that a garda will be cross-examined. The defence can put forward the case for the accused and the judge will decide whether it is proper to draw an inference or not. The judge may be able to decide, for example, in the case of a young person, through school reports or reports from the probation officer and so on, that he was not a person who could give explanations. Deputy Taylor mentioned that it could be a case of simple stupidity or a mentally handicapped person. In such circumstances a judge would not consider it proper for an inference to be drawn.

Deputy Taylor and Deputy Woods mentioned the idea of providing the person who is being questioned with a written explanation. This would not be practicable in the sense of writing it into the Bill, particularly in the context of section 18. Questioning could take place when gardaí came upon a person at the scene of a crime if they suspected the person was linked to the crime. It would not be proper to put an obligation on the gardaí to produce a written statement on the roadside or to have formal proceedings for serving it on the accused, getting signatures and so on.

He would have been arrested.

(Limerick East): Yes. I see the point being made by both Deputies and it is quite valid. I will give it consideration by including in the treatment regulations a provision which would require the garda to record in the custody records the fact that questions under these sections were asked of the suspect and possibly the nature of his replies.

Deputy Andrews mentioned the danger of turning gardaí into bureaucrats and said the Bill was bureaucratic legislation. He referred to various instances where forms had to be filled and notices had to be served on people. This is another example. However, I will look at the point made.

Deputy O'Dea seemed to agree with the intent of these sections. However, he thought the sections as drafted were very complicated. The sections are the result of several drafts. I do not think they are particularly complicated. Deputy O'Dea is not here now. I do not mean that facetiously. He thought it would be better if the sections were simplified and seemed to have some ideas on it. If he will communicate with me we will look at the sections again if there is a possibility of simplifying the draft. The simplification of sections would be to everyone's benefit, especially judges who will have to interpret the Bill in the final analysis.

Will the Minister clarify the operation of this from a timing viewpoint? The garda asks a question and the person fails or refuses to give an explanation. In one case it could take a person five minutes to give an answer and in another case perhaps he will think of an explanation in an half an hour. If he was asked to explain a mark or a stain on a such-and-such at night, the accused may say he will think about it and he could remember perhaps the next morning. Has he failed to give an account? Is there a time element? How does the Minister see it working from that point of view?

(Limerick East): I do not think that is a failure. A refusal would be telling the garda he was saying nothing, that he was refusing to give any explanation. A failure would be if he remained silent. The situation the Deputy mentions is where a person would say “I have to think about that, I probably have an explanation but I want to think about it”. He is neither failing nor refusing at that point.

I presume he will get the 20 hours under the detention sections to think about it. The Minister said the caution would have to be worked out with the Attorney General. This is one of the problems we have in dealing with this Bill. It is clear that these changes will alter the caution which will be involved. The Association of Garda Sergeants and Inspectors put forward their view of what the caution should be because they see that this would alter the caution required under the Judges' Rules.

Our problem is that the Minister has not written in the caution he would see applying and he tells us this will have to be worked out with the Attorney General. This is like other sections in this Bill. We are told the regulations have yet to be worked out and that we must rely on the Minister and his undertaking that he will not go ahead with certain sections until they are worked out. Recently we were told that the complaints procedure will also have to be worked out and that it will come back before the House in due course.

It was possible to have information about this complaints procedure leaked to a particular newspaper last week. This newspaper said that the Government were to set up a Garda complaints body. InThe Irish Times, 15 June 1984, Peter Murtagh, security correspondent, said that the whole procedure of the complaints body had been examined by The Irish Times. This is an affront to this House. We are now being asked to consider the most serious changes in the law for many a year, without being told what the Minister has in mind, because these matters have to be worked out. Yet, I can read about this in a newspaper. Other newspapers only got a little information about it, but obviously there was a leak to one newspaper. This is not the first time there has been a leak from the Department of Justice to the correspondent in question.

(Limerick East): On a point of other: the Deputy said there was a leak from the Department of Justice. There was not. The position I am in is that various people had to be consulted——

That is not a point of order.

(Limerick East): I can assure the Deputy that this information did not come from me or my Department.

I would like to be in a position to accept that assurance, and if the Minister gives me a personal assurance that this information did not come from him I will accept it but we all know there are many ways this can happen without him being personally involved. What we have to face here is the reality of what actually happened. We come into this House and spend long hours debating these sections, trying to be helpful because people on all sides of this House realise the seriousness of this Bill. We have done our utmost to improve the Bill before it becomes law and the Minister recognises that. These proposals were circulated to a wide variety of people according to this statement. Surely the Members of this House, who have been working so assiduously in this area, could have been trusted with some of these widely circulated, draft proposals which were obviously given to this particular paper. This type of thing is bringing this House into disrepute.

The Minister has not answered my questions about the Judges' Rules and what changes will be taking place. He has answered my question about the caution. Apparently the caution has not yet been worked out. It has to be agreed with the Attorney General and we presume when it is, it will come back before this House and we will have an opportunity to discuss it, perhaps in conjunction with the regulations the Minister promised.

The Ó Briain Report in relation to the right of silence said that the rule as it stands had been criticised by several very distinguished judges in England and by well known teachers of law and authors. In England, the Criminal Law Revision Committee had considered the matter for eight years. This is very relevant because it indicates at least the seriousness of the changes we are discussing and the importance of our attempts to get these changes right. We are not disagreeing with what Barra Ó Briain said. He made a policy statement. He did not draft it or provide the legal framework for it, but he made a policy statement. It is on those policy objectives that we are prepared to support these sections in principle, but we still have a duty to draft them legally. I put down this amendment so that we could fully discuss the section and try to find a middle ground between the position adopted by the Minister in the Bill and the proposal in my amendment.

Deputy Andrews mentioned a very interesting and relevant fact. He spoke about the danger of the step we are taking colouring the judgment of the jury in a particular case. He said that if a jury can draw inferences from the subsection which they would not otherwise be in a position to draw, it would appear that a failure or refusal to give an account is being given an artificial status and in that respect, it can be seen to be usurping the judicial function of the court and its constitutionality could be questioned.

Progress reported; Committee to sit again.
The Dáil adjourned at 12 midnight until 10.30 a.m. on Wednesday, 20 June 1984.