Section 17, amendment No. 37 (resumed). Amendment No. 38 is being discussed with it. Deputy Michael Woods is in possession on amendment No. 37. With the amendment, for the purposes of debate, section 17 and amendment No. 38 and section 18 are being taken together.
Criminal Justice Bill, 1983: Committee Stage (Resumed).
Debate resumed on 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.
—(Deputy Woods)
Section 17 — we are taking sections 17, 18 and——
We are taking sections Nos. 17 and 18 and amendments Nos. 37 (resumed) and No. 38 together.
The Minister has answered some of the queries we raised but he has not outlined the changes which will take place in the Judges' Rules. He has pointed out that it will be necessary to have a new form of caution and that the caution which exists at present will become defunct. Examining the Bill, we felt that it would be the case. But the Minister has made it quite clear that it will be necessary at least to introduce a new form of caution. Obviously the Judges' Rules will be altered in a number of ways. Perhaps the Minister would outline the ways in which he foresees the Judges' Rules being affected?
, Limerick East): The only way in which I foresee the Judges' Rules being affected will be that a new caution will be required. I do not envisage any other changes in the Judges' Rules. Of course the caution would have to state that the person being questioned had the right to remain silent. It would also have to point out the difficulties which might transpire subsequently in court when an inference could be drawn from the failure to give an explanation. It would be an addition to the existing caution, pointing out the risk which might prevail if certain questions were not answered.
It has been suggested that other rules would be affected. Is the Minister saying now that other rules will not be affected? 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 regime this will in effect be abolished.
(Limerick East): No.
That would be the effect particularly of section 16 which has now been removed. Does that mean that this rule will stay intact?
(Limerick East): There will be no change in that.
Is the Minister happy that the only rule that will be affected will be the caution?
(Limerick East): Even then it is in addition to the caution. The form of caution, informing the detained person of his right to silence, will have to be maintained.
The Minister has not as yet decided on the form of caution. The Association of Garda Sergeants and Inspectors have suggested that the caution under the Judges' Rules will 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 wish. If you fail or refuse to say anything the prosecution would be at liberty to comment on such failure or refusal, but anything you say will be recorded and may be given in evidence".
(Limerick East): We have not worked out the form of words yet. I do not think I could accept the form of words put forward by the association without detailed consideration. The essential elements involved will be that a person has to be informed of his right to remain silent on the one hand and, on the other, informed also of the difficulties that could arise in court if certain specific questions are not answered. The sections put the obligation on gardaí to explain it in ordinary language and it is now a question of drafting such a caution in ordinary language and consulting with the Attorney General on it. I do not envisage any great difficulty with it.
If there will not be great difficulty, will the Minister tell us when that new form of caution might be available to the House?
(Limerick East): It comes back to a point we raised previously. The Bill cannot operate without it. The only commitment I can give is that we will have to have a new caution before these sections of the Bill can operate.
Will the caution be available before we take Report Stage of the Bill? We are back to the same old problem of taking the Bill without seeing the regulations or the complaints procedure or, in this case, the caution which the Minister has in mind. I presume it will not be a very great problem to have the caution available.
(Limerick East): I hesitate to give a commitment on that. It is quite normal that various things are passed in a Bill which require consequential matters to be dealt with subsequently. I do not see why there should be an issue of conflict here. The obligation is clear that the new caution will have to be couched in ordinary language and it is simply a question of drafting it and providing that form of words. If the caution is not in ordinary language it will not comply with these sections. I appreciate the Deputy's difficulty in regard to the complaints procedure. He has made the point several times previously and, to a lesser extent, the same point in relation to the new regulations. On the issue of the caution, I do not see any difficulty in going to Report Stage without a form of words and the caution.
I meant as a courtesy to the House and the Members. In this case we have a major change in the law in that this kind of inference can be drawn and presented in court and can, presumably, have an influence on decisions made in court. There is no point in making these inferences so formal and giving them the status they are being given unless they will have an influence in court. On that basis it would appear that a fairly substantial change is being made now. The Minister says that a new form of caution will be introduced and we accept that, but the Association of Garda Sergeants and Inspectors some time ago put down a form of caution and suggested that it might apply in these new circumstances and that we can judge whether that is adequate for the changes we are making in the law. I appreciate that it can come with the regulations and we can wait and see the regulations, but it would make it easier for Members if we could see them now before we come to the finalisation on Report Stage. If that is feasible it might just be a matter of courtesy on the part of the Minister and his Department to inform the House of progress made in that direction if progress has been made by that time.
(Limerick East): If there is progress by that time certainly I will inform the House and give as strong an indication as I can of the form of words, but I do not want to make a commitment that I might not be able to fulfil. I would point out that it is the section that makes the change. The change will not be made when I produce the draft of a caution. The obligation is that somebody will be informed in ordinary language. Once the House accepts the sections then the change has taken place and the obligation is on me to formulate the caution in ordinary language so that it will be available to the Garda. It is a consequential change. I take the Deputy's point. Looking at the sections again in the light of the contributions made here, the priority as I see it, between now and Report Stage, is to come back with amendments and circulate those to the House and make them available to Deputy Woods at the earliest possible date. That would be a greater priority than the form of words of caution at this time of the proceedings. If I have further information on the caution I will provide it to the Deputy.
Is amendment No. 37 withdrawn?
We are discussing the two sections and the amendment together. The section seeks to penalise or work to the disadvantage of a person who fails to give an account for the presence of an object, substance or mark. A totally innocent person may fail to give an account of the presence of an object, substance or mark simply because he or she does not know of any reason or fact which would account for its presence. The section does not differentiate between a genuine failure and a malicious failure. In a way it leaves it to the common sense of the Garda and to the court to decide on the difference between these two kinds of failure to account.
The section also provides that if there is in any place in which a person is arrested an object, substance or a mark on any such object he can be requested to account for the presence of the object or the mark on the object. If he is arrested in a house, an office, an office block, a taxi, a bus or a laneway and there is in any of these places an object, substance or mark and the person arrested has no knowledge of them whatsoever, naturally he will fail to give an account for their presence simply because he does not know, yet this evidence will be admissible for the purpose of determining whether an accused is guilty of the offence charged. It is only from his failure to give an account that the inferences may be drawn, not from the account which he has given. The fact that he may give an explanation for his inability and, therefore, his failure to give an account does not receive any status or recognition in the sections. We are back to the common sense application of this. There can be various places such as buses, taxis, offices, laneways and so on. Again we will be relying on a common sense interpretation and usage of these terms, and that may put some people at a disadvantage. If they then find themselves before the court the court can decide, but there is great difficulty in reaching the stage of being in court before the common sense is applied. The section seems to be fairly open in that respect. It defines the place fairly broadly and leaves the person with a fair deal of explaining to do about being in the wrong place at the wrong time. Consequently, he can be at a considerable disadvantage.
(Limerick East): In the first place the person must be arrested, and that means there must be reasonable suspicion of his involvement in the crime. Then, the mark on an object or the person's presence in a certain place must be tied in with the crime in the mind of the arresting officer. In the event, say, of a person being questioned about a bullet hole in his livingroom door and saying that he was not aware as to how it came to be there, that he noticed it when he arrived home, that is an explanation. It is not a failure or a refusal to give information. It would be a matter for the judge subsequently to judge whether an inference was proper.
It is worth pointing out again that a person cannot be convicted on the basis of inference alone. Consequently, if the only case against a person is based on inference, I cannot visualise the DPP bringing a prosecution in the first place. There would have to be other material evidence to justify bringing the case to court. It is not a question of a garda drawing an inference from a person's silence and then the case proceeding to court, the court being the only protection the person has. It is a question of a garda giving evidence about having asked a question and there being a failure or a refusal to answer and then the judge deciding whether it would be proper to draw an inference and advising the jury accordingly. This would be another item of evidence in the body of evidence which would be taken into account by the jury.
I should like to add a couple of words to what the Minister has said in regard to a point being made by Deputy Woods, namely, that this section appeared to him to swing into action even if the reason for the failure to give information was the result simply of ignorance. That is so, but of course the member of the Garda who is one of the actors in this little dialogue is envisaged as giving evidence subsequently. The point is that he cannot merely give part of the evidence of the episode. He must give all the evidence, and that must include the evidence as to what the suspect person replied. It would be wrong of the garda to withhold, let alone to distort, a reply from a suspect person that he did not know how, for instance, a mark appeared on his clothing. It would be a very serious neglect of duty on the part of a defence counsel to fail to cross-examine the police officer on the lines of, "did the accused person not tell you that he had no idea as to how the mark appeared on his clothing?" In these circumstances I do not think the apprehension voiced by Deputy Woods has much substance.
I do not know whether my second point is more appropriate to discussing the section rather than the amendment.
We are discussing sections 17 and 18 and amendments Nos. 37 and 38 together.
Presumably the Garda suggested a section on those lines and that the observations of the DPP, of the Attorney General and of the Department of Justice were obtained in regard to it. I could not guess as to what use the section might be to the Garda, but I am making the assumption in their favour that they see some point in it, that it would be of some use in the repression of crime without infringing on people's legitimate liberties, but it seems slightly incomplete. There may be circumstances in which the absence of something surrounding a person's condition when he is interrogated by the Garda might very well be material to the commission of a crime; but the section does not appear to require any account to be given of the absence of something. It does not appear to empower any inference to be drawn from the failure of a suspect to account for such an absence.
I agree that this could be marginal, but for the sake of completeness I am surprised it is not included. There might be some very conspicuous absence in a person's dress or in his immediate surroundings which caused a garda to be suspicious. For instance, a garda might ask a suspect why he was not wearing his shoes; or in the case of, say, a security officer where his keys were; or in the case of someone who was supposed to be in charge of property which was on display — the FAI cup, for example — where that item was. I am not advocating the extension of such powers, but I am merely pointing out that it would seem logically to be just as admissible to require people to account for the absence of something as to account for its presence.
Like many other Deputies, I am not happy with either of those sections. On the question of ordinary language, I take the point the Minister made this morning that it is for him and his Department to draw up such language but, as is the case so often with this Bill, we are debating what is in it in the hope or in the happy belief that on the day everything will be all right. I am very concerned about that because the seriousness of the consequences of this Bill make it much more preferable that we deal with what we believe will happen. I envisage difficulty in regard to the question of ordinary language. Again and again we come back to the situation which arises when a person is arrested in the circumstances given in these two sections. The Minister made reference this morning to the fact that the person making the arrest must have reasonable belief. There could be a problem if a garda wished to arrest somebody who was at the scene of a crime because he wanted to make an arrest.
Even though it may be ordinary language it could be couched in such a way that persons could very quickly become frightened to the extent that even if they were innocent they might not completely understand what was said to them but only see the threat, as they would see it, contained in the language. In such a case they may not be able to give the reason why they were present at the scene of a crime or whatever. That would be interpreted as a refusal and used against them. I am trying to illustrate the sense of threat and hostility that such persons would feel was directed towards them. There is a real danger there.
If a person knew about the implications of these sections they could frame another person. Something could be planted on him and he would be caught up under the section. It is an infringement of the civil rights of people least able to cope with it. These two sections could lead to innocent people being arrested and put through a traumatic experience which would have a damaging effect on them for the rest of their lives. We must take into consideration the people who will be threatened or intimidated under these sections.
I take the Minister's point that nobody will be convicted of an offence solely on an inference drawn from such a failure or refusal. It will be seen that an arresting officer can make a case of inferring guilt by being able to draw an inference and tell the judge or jury that such refusal or failure occurred without realising the circumstances under which it occurred. It could be that a person was not adequately able to cope with the situation. It is important to have some safeguards written in that a record of such dialogue would be kept.
I regret that we do not have the regulations before us. I ask the Minister to seriously consider having a debate on the regulations and the safeguards we have talked about and the independent tribunal in order to allay our fears and anxieties before Report Stage.
(Limerick East): Deputy Kelly's point is a fair one. He said it might be beneficial if inferences could be drawn from the absence of something. Subsection (1) will apply to the condition of clothing and footwear. For example, an inference could be drawn from a tear in a jacket or the fact that someone was wet. Once we drop section 16 the areas where inferences can be drawn are quite narrow. If you support the concept of allowing inferences to be drawn a strong case can be made for extending the occasions on which they can be drawn. Sections 17 and 18 are designed to be specific and provide for a limited set of circumstances. However, I take the Deputy's point. It is a valid one.
Deputy Barnes was worried that the Garda may abuse their powers under this. There was an implication in what she said that they were getting new powers of arrest. They are not. The case has been made that the gardaí may not always have reasonable suspicion or may be emotionally involved or that in circumstances where a member of the public might not reasonably suspect someone, a garda might in his enthusiasm to solve a crime. These possibilities already exist at present.
As regards the idea of framing someone or planting something on them the sections do not increase or decrease that risk. Anybody can act maliciously now or could plant something on a person. A murder weapon could be put in the handbag belonging to Deputy Barnes. She would have a problem even if the section had never been drafted. These sections will not create a greater problem for her. If she was questioned by the gardaí she could say she put down her handbag for a few minutes but did not know how the murder weapon got into it. That is an explanation but she would be in a difficult situation because a murder weapon was found in her handbag. The changes in the law do not make it more difficult.
As regards the implications that sections 17 and 18 are an infringement of civil rights, Barra Ó Briain argued the other side of the case in his addendum. The Ó Briain Committee examined safeguards for people in custody. He felt that the courts having the right to draw inferences on the direction of a judge in accordance with common sense, was a safeguard for the person in detention. He stated that gardaí questioning someone could get totally frustrated if no explanation was put forward for something which cried out for an explanation. He said that such frustration could lead to ill-treatment of people in custody. He went on to argue that the power of the courts to draw inferences would relieve that pressure on the gardaí. If the gardaí ask the appropriate questions and do not get any replies they can put that in the book of evidence. An inference will be drawn if the judge thinks it proper to do so.
Has anyone listened to the radio or looked at television or read the newspapers recently? I do not want to refer to cases which may come up before the court shortly, but how many old people have been brutally murdered in the last 12 months? They too have civil rights. They have a right to life and a right to enjoy their old age in peace and tranquility rather than being terrorised in their own homes and localities. They have a right to property and a right to security in their own homes. Have people not the right to be safe sitting at their own firesides? An old person watching the 9 o'clock news will hear that somebody in the next county or the next parish has been brutally murdered and he can identify with him. If people come into your house and humiliate you, terrorise you, or lock you in the boot of a car, your civil rights are being infringed.
What can happen here is that as we stay here for a long time debating this Bill we begin to form a kind of group cohesiveness and form relationships with each other which make us more remote from the reality of what is happening outside this House. I am as concerned as the next Deputy about civil rights but the civil rights of hundreds of thousands of our citizens are being infringed directly by crime every day of the week and, indirectly, by the waves of apprehension and fear that move through a community when some heinous crime is committed in the locality.
On the question of regulations, Deputy Barnes raised the idea of any question and the replies to them being recorded. I have said previously that I will look at the idea of a garda being obliged to record whether these sections were invoked and I will look at the broader question she has raised. I am not going to give a commitment that regulations and complaints procedures will be before this House by Report Stage. I cannot give that commitment because consultations are taking place at the moment on the complaints procedure. I have said that when the complaints procedure arrives in this House it will not be implemented as an administrative scheme. It will have to be statutory. Every Deputy will get every opportunity to debate this matter on the five stages of the Bill.
I have also given a commitment on the regulations. I am, I believe, departing from the usual practice in agreeing to that, rather than introducing a motion on the regulations under which they would become statute, provided nobody introduced a negative motion in the House. I will put down a positive motion to give Deputies the opportunity of debating the regulations when they have been laid before the House.
Some of the cases being made here about the difficulties of Deputies debating certain aspects of the Bill are based on a false premise. Regulations are statutory instruments which provide a Minister with the opportunity to deal in a statutory way with an administrative detail. It has not been the practice to bring them into this House for discussion, but because of the concern expressed by Deputies, I have given a commitment to bring them into the House. But to imply that the Bill cannot be discussed until the regulations are in front of us contemporaneously with the Bill is to set the whole argument on its head. It is without precedent for a Minister to bring in regulations under a positive motion.
I appreciate that Deputies were concerned about section 16, although I do not have a difficulty with the principle of that section. Many people renowned for their interest in civil liberties think inferences do not infringe on civil liberties in any way. Barra Ó Briain saw this as a positive contribution to the civil liberties of the detained person. Professor Mary MacAleese of Trinity College Dublin when the Bill was published said people were making too much of inferences and she did not see any problem with them. Professor Glenville Williams and the Criminal Law Revision Commission in England all advocated the drawing of inferences. Many members of our Judiciary are quite happy. This is commonsense. The present situation is that a jury are being asked and directed by a judge to act against their commonsense. Say a person had bloodstains on his shirt. When he goes into the witness box to give evidence and is asked where the bloodstains come from he refuses to reply. The prosecution cannot comment on the refusal and the judge has an obligation to say to the jury: "You have listened to this case but you cannot draw any inference that the accused was involved in this crime from the fact that he refused to say where the bloodstains on his shirt came from." The jury are being directed to act against their common sense. In my opinion, it is difficult for ordinary people to act against their common sense. Those of us who are more sophisticated and have more experience of life can act against our common sense frequently, but a jury do not usually do that. I suspect that some jurors draw inferences against the expressed direction of the judge because that is the common sense thing to do.
There is a very strong case to be made for sections 16, 17 and 18. Because section 16 met with such opposition and because I believe that changes as major as those we are proposing to make in this Bill should have the maximum consensus possible in a society as homogenous as ours, I think there is an obligation on me to try to achieve that consensus. Therefore, I dropped section 16 not as a matter of principle but, to put it bluntly, because it was not worth the trouble it was causing. Sections 17 and 18 are different. They are specifically drawn and it will be up to the judge to decide if an inference is proper or not.
It has been said at the outset that the basic object of this section is sound in principle and desirable, if not essential. We are working between these two points and on that basis we are prepared to go along with it. Our problem is to ensure that when drafting these two sections any difficulties which may arise subsequently can be dealt with. That is the purpose of Members teasing out sections as well as we can. I do not intend to go back on what was said about section 16 except to make a passing reference. The fact that a person has to mention any detail which may be relevant at the time he is arrested is nonsensical and very poor drafting.
The Minister said he felt sorry that he had to withdraw section 16, but if he looks at it he will find there was good reason for not proceeding with it as drafted. That is why we supported the Minister's withdrawal of the section. It would have created an impossible situation for an arrested person, and it would have given rise to far more problems than it would have solved.
I am not clear about the position in regard to accounting for marks or bloodstains referred to in paragraph (c). A person might fail or refuse to give such an account. What if he says he will give an account only in the presence of a solicitor? Perhaps that could be a good excuse for not giving an account, but that would be put on record. If a person says, "I will not say anything until my solicitor is present; I will give an account when I have spoken to my solicitor", what is the position then?
(Limerick East): A detained person is entitled to access to a solicitor, to consult with the solicitor in private out of the hearing of gardaí. Consequently, if a person demands to see a solicitor — a person detained without warrant — he would not be taken to have failed or refused to give an account. He would be entitled to a consultation in private but he would not be entitled to have the solicitor present later when being questioned. There would be the right to consultation with a solicitor for advice. Then the questions could be put again.
So it would be quite legitimate for the person to say: "I am asked to account for a bloodstain or a mark; I do not know how I should express myself legally, though I may have ideas about where the mark came from. I will not answer now. I am not refusing to answer but I will not do so until I have spoken to my solicitor". Is that person complying with the section? There is reference to "reasonable time". The person could be stopped outside and brought to the station.
(Limerick East): The person is entitled to consult a solicitor after arrest.
The Minister spoke about circumstances in which a person is detained without warrant. Does it apply only when there is no warrant for arrest? Is a person entitled to say: "I have been arrested, I am going to the station but I will not say anything until I see my solicitor"? The person might consider that anything he might say in such circumstances would be prejudicial to any case brought against him later. Would that person be fully entitled to say that and still comply with the requirements of the section? Of course, that brings us back to the old problem of people who do not have money to pay for a solicitor. They may have been arrested but not charged and it is only when charged that they can have free legal aid. Does that mean that there may be a roster of duty solicitors available who can be called on so that people's rights will be equal and that they will not be disadvantaged by disproportionate incomes.
(Limerick East): The Deputy has outlined a possible situation which could arise and there is nothing in the Bill to prevent any person from adopting that approach. The reason for arrest without warrant is that if a person is arrested with warrant he must be taken before a peace commissioner or a justice of the District Court and charged as soon as possible.
Is there not a substantial disadvantage? The intention is to get a person to account for any marks and if there is a basis for issuing a warrant to arrest the person and then it is discovered later that there are marks or bloodstains, the case would have to be treated in the normal way, but the prosecution will not have the advantage of this section.
(Limerick East): If a person is arrested without warrant, he will have been arrested on reasonable suspicion, but if a person is arrested on warrant a prima facie case will exist and he will be brought before a peace commissioner at the earliest opportunity and charged. The present practice is that a person cannot be questioned after being charged. I do not think the section opens up a huge gap. Perhaps inferences could be drawn about a person being arrested without warrant.
Has the Minister any idea of the ratio of arrests with and without warrants.
(Limerick East): I will consult.
In his justification for these sections the Minister stated, rightly, that the population at large have the protection of these rights, that they have a right to be protected from being terrorised or from feeling unsafe. Nobody in this House has argued that such things do not happen. Those of us concerned about the Bill are concerned specifically about the protection of innocent people who may be caught up in the operation of the Act. We are not arguing for the protection of the guilty, but the law states that people are innocent until proven guilty.
We have to see that the guilty are charged and brought before the courts, but equally that others will be left to lead their lives peacefully. People in general rarely come in contact with the Garda unless, possibly, they are stopped for road tax failures and so forth, and such things are not widespread. However, many of us are aware that people have been taken into custody and charged though they were innocent, even without reasonable suspicion by the Garda. We are not concerned for the criminals but for the innocent. The question of terrorism applies as much to those charged with the job of applying the law as to those who must abide by it. I have during the course of this debate given instances which occurred in recent months of innocent people being attacked and terrorised by a number of gardaí. These instances have been reported to the Garda authorities and are being investigated.
My concern is that these two sections add to the armoury and options, if one likes, under which abuses can occur. The Minister says that these two sections are common sense and do not give any additional powers to the Garda. On the face of it, that may be very plausible, but we must keep in mind all the time that these sections are part of a much wider Bill which changes very dramatically the operation of our legal system. It includes detention for up to 20 hours and the right of the Garda to carry out forensic testing, photographing, fingerprinting and so forth. It also includes the question of how alibis can be dealt with at a later stage. We are not dealing with two isolated sections under which inferences may be drawn. We are dealing with two sections of a Bill which is introducing fairly wide ranging additional powers for the Garda.
The Minister continually emphasises that the Garda are not being given new powers of arrest, and we know that. However, they are being given powers to detain following arrest. It is during that detention that all these new inferences can be drawn from answers to questions which may have been put by the garda to the person detained, and that is our concern. It is part of a fairly wide ranging package which the Minister has brought in. It is possibly in order, but not quite fair, to decry the efforts of those of us who are opposing major portions of this Bill and consider us as being in any way supportive of the criminal element in our society. We are here to debate this Bill and to try to ensure that when it does go through, as it appears it will, it will have the least possible effects on the innocents in our society.
Arising from this morning's debate, the Minister indicated that when a person asked a question by the Garda under sections 17 or 18 indicated that he did not want to reply to those questions until he had consulted a solicitor, that would be in order. In his discussions with the Attorney General about the form of caution to be administered, would he include a reference to the fact that a person need not reply until he consults his solicitor?
While section 16 is a frontal attack on the fundamental principle that the prosecution must prove its case and that no obligation lies upon the accused to prove his or her innocence, sections 14, 15, 17 and 18 constitute a far reaching curtailment on the right to silence. I would have the same concern about these sections as Deputy Andrews expressed earlier, and Deputies Taylor, De Rossa and Barnes. Apart from the question of detention in sections 3 and 16, these sections are causing the greatest amount of concern. I have to echo the feelings of the previous speaker in relation to the statement by the Minister on the section with which he had no difficulty. In the Irish Times of May 1984, Justice O'hUadhaigh, retiring after 30 years on the bench, said: “In this country it is up to the gardaí to prove your guilt and not up to an individual to get into the witness box and help them prove it by allowing inferences to be drawn from not having said anything.”
I was not over impressed by one or two people mentioned by the Minister as a back-up for his opinion on that section. Everybody is greatly relieved that it has been removed altogether from the Bill. I realise that in sections 17 and 18 the Prosecution cannot draw any inferences except after arrest without warrant. The garda must believe that the mark or object refers to the crime and must also inform the person of his belief and proper inferences can then be drawn. That is a fair attempt to provide safeguards in this section, if safeguards can be provided at all. I do not think that it narrows the field. The field is totally open, especially when under section 17 (1) (iv) one can talk about any object as well as substance found in one's possession. That could subject the entire population to the effect of these sections, and I would be concerned about that.
Section 17 requires a person arrested without warrant to account to the Garda for the presence of an object, substance, or mark on him or her which the Garda believe is attributable to participation by that person in an offence. Failure or refusal to reply enables the court to draw a negative inference amounting to corroboration of other evidence.
Section 18 has a similar provision regarding a person arrested without warrant at a particular place, about the time the offence was committed in respect of which he or she has been arrested. Where a garda reasonably believes that the presence of such a person may be attributable to the commission of the offence and requests an account of the person's movements, failure or refusal to do so can result in the same negative inferences as under section 17. What concerns me — and this has been mentioned by other Deputies also — is that ignorance can tell against a person. Under the present law sworn inquiries and the taking of statements are governed by the Judges' Rules. There is an obligation to caution a person if a garda decides to charge him. These safeguards have been shown to be inadequate in the past. It seems that by these sections, as I understand them, far from being strengthened the safeguards are being abolished. In the case of a juvenile being questioned, the present law requires that a parent or guardian be present. Do these sections mean that that no longer applies?
Also, under the Judges' Rules there could be no threats or inducements. They are some form of protection to the innocent person while being questioned or in custody. We should have an opportunity to examine the caution mentioned by the Minister, to see how it would apply when brought in. If possible that should happen while we are discussing the Bill because the explanations are not very reassuring and some form of caution will be administered particularly when the difficulties of the term "ordinary language" have been remarked on by different Members.
I accept that is a good intention in the drafting and that it is meant to convey simply and honestly to a suspected person what the consequences would be if he refuses to give information under this particular section. It is not a slur on the drafting but has come about as a result of our discussion in relation to all the sections and the implications of the Bill that something like this has to be spelled out. It is a further check we are asking to have looked at again, but because it has such a very large bearing on the position of someone who is under suspicion and could be affected by this section it must be looked at.
I have not been thinking about guilty people or criminals, but all of us are worried about the ordinary people. While we all expressed a genuine concern about muggings, murder and attacks on old people the crime statistics of which we have spoken in the House — I do not know if they can be divided by four or five — are a very small percentage in comparison with the rest of the population who are going about their business in an orderly manner.
Sections like those apply to the population at large, and I do not consider it is necessary that that should be so, because we should home in on that particular problem and try to mitigate it as far as possible. It would be idealistic to say we could wipe it out but we certainly should be able to mitigate it in the correct way. These sections are only one approach to that, but we will have to live with them until they come up for review again. There are not many people around with confidence that they will lapse in a few years' time, because it has not been the practice in the past for that to happen. Most people would feel a lot more comfortable and more at home in our society if we did not need to have such sections in the Bill.
I question whether we need those sections. I realise that in the preparation and drafting of this Bill and these sections a tremendous amount of research was done by those concerned. They probably looked at systems right around the world and they have come up with what they believe to be the best answers to our problems. A lot of what is in the Bill is welcome and is one answer to some of our problems in the crime area. I do not believe, however, that the sections we are talking about, the previous two sections, the section that was removed and section 3, will improve the situation to any great extent. I believe we should try to survive without them if the goodwill of the community and of the Garda is there. Most people have been impressed, in the short space of time the Minister has been in office, with the improvements that have taken place within the Garda force, the reduction in crime statistics, the future plans and the way the Commissioner and others are tackling those problems. They will get further support from the House and from the population at large. I believe those sections could be removed from the Bill.
The type of people I am very concerned about in this are the young people, many of the unemployed young people in the population and in communities especially where there are not any facilities and children have nothing to do once they go outside their front doors except congregate in groups. In a lot of cases you will find one leader over a group of people and most of the trouble is caused under his leadership. On the perimeter of my constituency we have had one of the worst troubled areas in Dublin. In the last year great effort has been made in putting in community centres, youth employment programmes and other measures to help the community. The results have been dramatic in the almost elimination of crime in that particular area. That is the kind of thing we should be doing instead of putting in measures like this which will affect the whole population once they come under suspicion.
Under section 17 when a garda is questioning a person about a mark on his clothing I do not know where the safeguard is in the event of that information not being recorded. It leads me to think that we need an independent person there to record what is actually said. If there is fear, inhibition, stubbornness and ignorance on the part of the person under suspicion and the garda is cross-examining the suspect and a judge decides to draw or not to draw an inference from such a situation how is it possible to ensure later on in the cold light of court where decisions are taking place very quickly the situation will not be dressed up? Suppose the garda tells convincingly a version of what took place. He makes the defendant seem guilty. What protection is there for that person if he disagrees with what the garda is saying, apart from giving his own word? If a garda told an untruth and said the person refused to account for a mark on his clothing, what protection is there for the detainee? It is necessary to have an independent person present and for the examination to be recorded verbatim.
It is also desirable to simplify the drafting of sections 17 and 18. I was satisfied with the Minister's reply to Deputy Taylor about the timing of answers and the question of somebody with a bad memory. Deputy De Rossa asked if somebody said he did not know, was that a refusal? The Minister's answers were acceptable, but I do not know whether that protection is in the section if somebody said he genuinely could not remember or he was confused. It may not be enough for him to be given an extra 15 minutes or 25 minutes or even an extra ten hours. He may not be able to get it right. I do not think that is satisfactory.
We presume people can remember things that happened three months, or three weeks, or three days, or two years ago. We have often seen court cases where it is not possible to recall things that happened. When somebody is asked about something that happened in the past, if he cannot come up with an answer it is taken that he is not telling the truth, or he is lying, or hiding something. It throws a suspicion on him. Before television and radio our forefathers had great memories. They had to remember everything. Nowadays with instant communications and the enormous number of things we are battered with every day, people have very bad memories. That is why there is a terrible weakness in section 16, apart altogether from the injustice of it.
We are talking about inquiries preceded by a statement in ordinary language and a failure or refusal to mention a fact which may be relied on in a hypothetical future defence to a hypothetical prosecution may lead to inferences being drawn. I do not think these sections will work very well. I disagree with them in principle and I disagree with the working of the sections. I do not think they are necessary for the detection of crime.
Another matter causes me concern. It is hard to put it into words. What happens to the psyche of a garda who is one of 11,000 or 12,000 people whose job it is to be suspicious and try to detect crime? Is it possible for him to remain independent and one step removed from suspicion in a criminal situation and not jump to conclusions and charge somebody wrongly? These two sections help to cause confusion and create the possibility that there will be many unfair charges and unfair suspicions.
It may get to the stage where virtually anybody can come under suspicion because of the way they are walking or because of what they are carrying. You may be carrying a shopping bag or a screwdriver. You could forget the number of your can and be suspected of having stolen the car. That could involve a five year sentence. Those are the dangers in these sections, apart from many other things we cannot even think about. At present people can go around freely and not worry about anything like this. If this Bill is enacted they will have to be careful about what they are doing, where they are, and who they are with. This is ridiculous.
A person could be with a friend and have an instrument or a screwdriver in his pocket. He could go away and leave it inadvertently in the other person's possession. The second person could be asked to account for having that object on him. He might decide that he had better not answer that question. The garda could say it was stolen. I do not think the sections are workable for those reasons. I am opposed to them in principle. They are two of the unfortunate sections remaining in the Bill. We could carry on very well without them.
We have to wait for three things now after the Bill is passed: the caution, the regulations and the independent complaints procedure which, according to the leaks in the papers, has been diluted.
Leaks in the papers are not in sections 17 and 18.
The complaints procedure are in the leaks. That is the problem.
The Judges' Rules are concerned here. We have the provision about ordinary language. We were promised regulations under which the Garda would operate instead of the Judges' Rules. The only information we have on the complaints procedure is what was published in the papers on June 15 in The Irish Times. It seems to be diluted. Serious comments will be made if this Bill is passed and if we do not have an independent complaints procedure but have something that is only vaguely independent, that has a strong Garda influence in the complaints procedure which means that the Garda Síochána are investigating themselves.
I must confess to a feeling of unreality. I have not spent much time in this Chamber during this debate and perhaps that is just as well. I can understand why the Minister is beginning to weary. There must be some very naive TDs in this House, not least of whom is Deputy Woods, the alternative Minister for Justice. One wonders where these people have been for the past ten of 15 years. Are they so naive that they do not know about the state of crime in the country? Are they unaware of the figures that were released by Commissioner Wren yesterday which show that less than 30 per cent of crime is detected? That is the background against which this Bill has been introduced.
I ask the Deputy to deal with the sections before the House.
What I am saying is relevant. Sections have been watered down and section 16 has been omitted. I appeal for the retention of that section as well as sections 17 and 18. Surely it is reasonable to expect that a person found in suspicious circumstances would be asked to render account of his movements? If a person is found with a gun in his hand, standing over a dead body, surely he should be asked to account for his movements? If we are not firm on this point we will not improve the crime detection rate.
Deputy De Rossa seems to be preoccupied with the intimidation by gardaí but he seems to have no concern for the victims. The numbers of murders, of assaults, of attacks by drug-crazed young men are increasing. Have the victims in these cases no rights? Have these people anyone to voice their fears? I believe that there is such a voice, that of the Minister for Justice. I ask him to stand fast and not to delete any more sections, so that we can reduce the appalling and unacceptable crime rate.
I wish to respond to some of the issues raised by the Minister in his reply to my first contribution and Deputy McGahon has strengthened my resolve. We must point out consistently in this House that bad cases should not make bad laws. We should not get carried away by emotion or a sense of outrage about what is happening in the community. As has been said on many occasions, our concern is not for the criminals but that a Bill is being introduced that will affect the innocent. While we may, in group dynamic terms, have made up a cohesive little group here while we have been discussing this Bill, there are other cohesive groups who make their own collective dynamics also, and that is what we are worried about.
The Minister said that we must remember that as a group we may be remote from the reality of what is happening outside. I contend that it is our sense of reality of what is happening outside that has allowed this debate to continue at its present depth and level. Quite rightly, the Minister has spoken about the apprehension and fear felt by victims of violence, and he has said that the elderly identify with one another when they are violently attacked or when an older person is killed. I agree with what he said. As a woman, I should like to tell the Minister that there is an overlay of a further violence that all women identify with, namely, the threat and reality of rape. The Minister is not the only person to share the concern and the outrage that exists against violence in our society.
We must take into consideration, in the words of the Minister, the apprehension and the fears of a community not just that of the victims against the criminal but the fear in certain communities that this Bill may be used against them——
The Deputy has not made any reference to section 17 or section 18. The Deputy is generalising.
I am quoting and responding to what the Minister has said. If I am generalising, perhaps the Minister was doing the same in his response to me. I asked the Minister to consider bringing in the regulations and the complaints tribunal but in his reply the Minister said it was totally abnormal that regulations should come in simultaneously. I agree that that would create a precedent, but I contend that this Bill is probably creating a precedent. If times outside are so abnormal that we must bring in such an abnormal Bill, may I extend the logic to say that it would not be too abnormal to bring in the regulations also?
In justifying sections 17 and 18 we must realise the difficult situation existing. Some of the points in the discussion have been very useful but there has been a certain amount of waffle in the past few weeks and some people have been going through an academic exercise. I have been talking to people outside this House and what has been happening here has not done anything for the name of the House. They want a Bill that will do something to reduce the crime rate. Obviously some Members are happy to back the Bill each way. They can appeal to certain elements in society——
Will the Deputy please deal with sections 17 and 18?
We must realise the difficult situation facing the country. I was alarmed to hear Deputy Skelly say that theoretically the crime statistics were small in relation to the population. Last year we had only 26 murders. Is there a certain level of murder that will be acceptable each year without people demanding that the Government or the Garda should act? Last year there were 2,306 offences against the person, there were 41,364 offences dealing with violence against property and there were 58,283 larceny offences. They may be still relatively small in comparison with the number of people who are going to be hauled in under this Bill and to whom sections 17 and 18 may apply——
You are not confining yourself to the relevant sections. Please try to keep to the section.
I apologise for straying from the section but other Deputies have strayed far from reality during the course of this debate. Section 17 states:
...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.
Vast numbers of people will not be hauled in on the suspicion of gardaí and convicted by juries, because judges and juries act on the evidence presented before them and not just on one piece of evidence. The public can be reasonably satisfied with both these sections as they can be with the Bill. Headline seekers in this House appeal to certain people outside, but are they aware that recently in the south-east old people were locked in the boot of a car and that there have been murders in Dublin City and Donegal? This Bill, together with effective Garda efforts, is trying to combat that, and we are not trying to form a police state. We are trying to ensure that citizens are entitled to go about their daily business and have their rights protected. There has been a lot of talk about the rights of people who will be brought in under this Bill and who will be affected by sections 17 and 18, but, unfortunately, many innocent people have had their rights interfered with and those rights can never be restored to some of them. Even in the latter days of this debate, or academic exercise which it is for some, I hope we will get a certain balance, and I support the Minister in relation to sections 17 and 18. If people have reservations in relation to these sections they can show their disapproval at voting time, but to keep waffling on and going through this academic sham without reasonable justification or basic facts does not serve any purpose.
I regret that the Deputy from this side of the House should call this an academic exercise and waffle and refer to headline seekers. When one considers that concern has been expressed by responsible bodies in the community and also when you consider that we are elected representatives and apply our minds in the best way possible in order to stand up for their rights and to get a balanced Bill through the House, that a Member can come in and express such views——
Please keep to the sections under discussion.
He referred to this as waffle, used racing terms and referred to the time that we are losing in here. Unfortunately for the Deputy, we will not be finished before Ascot starts this afternoon and he can come back afterwards to hear us still waffling. However, we will be trying to stand up for the people who elected us and to avoid including sections in our criminal law which are unnecessary and which will cause the reduction of civil liberties and freedom. I will sit in the House for as long as it takes to go through this section, until 10 o'clock tomorrow morning, if necessary. I deplore Deputy Cosgrave's intervention and also his indication as to how I should vote on the Bill.
(Limerick East): Not many new points have emerged. Deputy Woods spoke about statistics and the number of arrests with or without warrant. I imagine that most arrests are made without warrant, where the arrest is made in a quick follow-up operation. As the law stands there are severe limitations on the period for which a person may be detained before being charged before a peace commissioner or a district justice so that, in practice, if somebody is arrested with a warrant, the Garda would be required to have a prima facie case to justify the warrant before they could make an arrest. A warrant would be issued by a DJ or a PC on written information from the Garda. There is no gap in the Bill, because the sections apply to a person who is arrested without a warrant. I cannot give a precise figure for the number of arrests with warrants, it is, proportionately, rather small.
Deputy De Rossa and Deputy Woods spoke about the requirement to caution a person in ordinary language pursuant to the section. We will be drafting a caution to give effect to the section and it will be sent to all gardaí, and they will be required to use it although they will not be absolutely bound to confine themselves completely to the caution and not to say anything else. As you can see, there are circumstances where it might be a stain on clothing or footwear or an object and in section 18 it might be the presence near the scene of a crime. The formula of words chosen will have to take account of the fact that it will have to be used in different circumstances. There is no point in putting a phrase in requiring a mark on a shirt to be explained if it is shoes that are at issue. That kind of flexibility has to be allowed.
The question also arises as to what is "ordinary" language. What might be ordinary to one person might not be so to a person of lesser education or intelligence. The garda, in the course of his duty, need not necessarily stop when he gives the formal caution — he could go on to explain it to the person who had difficulty in comprehending what was involved. If he had to use phrases which were current in any part of the country or any group to communicate the intent of the section he would be at liberty to do so. We should remember that sections 17 or 18 cannot apply unless somebody is charged and is before a court. It is not something that arises when somebody is being questioned, although it will be initiated then, but an adverse inference cannot be made against a person unless it is in the context of a trial. Consequently, the judge is in a position to evaluate all the facts and decide whether it is proper to draw an inference. The sections can only apply in a courtroom by a judge or by a jury on the direction of a judge. An accused person can go into the witness box and be cross-examined by the defence. He is under oath. He is cross-examined under oath. The person who has charged the person in the dock with the offence has a similar right. He can go into the witness box and take the oath and be subject to cross-examination.
Some of the arguments put forward on sections 17 and 18 have been put forward as if these sections had some life outside the courtroom. They do not. Deputy Skelly said that objects in the possession of somebody could subject the entire population to sections 17 and 18 seeing that we all carry day-to-day objects on us which in certain circumstances could attract a certain suspicion. That again seems to arise from a misconception that sections 17 and 18 have a life outside the courtroom. They do not. Again I point out that inferences alone cannot convict anybody. Before a person steps into court there must be other evidence. There is no substance in the argument that the whole population is at risk under section 17 or section 18. Not so. It has been said there could be an intrusion on civil liberties. Not so.
Deputy Skelly made a second point which had also been made by some other Deputies that somebody who was ignorant of the law or mentally retarded, or not very well educated, might be at a disadvantage in regard to sections 17 and 18. It was argued that people have different talents and different qualities and the sections might operate unevenly either inside or outside the court. In the circumstances of a detained person being questioned by the Garda the argument normally put forward in regard to a lack of education, youth or alienation, and so on is that these are the very things that make a person talk. I have not heard the argument put forward until this morning that it is the other side of the coin we should be looking at and that lack of education, ignorance and not being aware of procedures are the very things that cause a person to insist on the right to silence. I do not think that can be substantiated. If someone does not understand the circumstances and if he is innocent, then the inclination would be to explain to them. I think it would be difficult to sustain an argument to the effect that someone who abstained from giving an explanation or refused to give an explanation was doing so because he was disadvantaged. Section 4 is not nullified in any way by either section 17 or section 18 with regard to the right of a person being present when particular questions are being put to a young person. These sections do not qualify section 4 at all. A parent or guardian has the right to be present during questioning. There was a reference to ordinary language. I have already dealt with that.
There has been an "inference" during the course of the debate that people cannot trust the Garda in certain circumstances. Under sections 17 and 18 the garda will be under oath in the witness box and I do not think Deputies should use an argument which casts an aspersion on the whole force. There is a danger in that kind of argument and it is for the garda who wants to do his job and to do it properly and dutifully, that if this argument holds water, then the easiest thing for him to do is to wander about the streets doing nothing. Why should he put himself in the position of having to go into a witness box and take an oath and say somebody refused to answer a question if that person actually did answer it. Where is the proper motivation? There has been a good deal less motivation in arguments both inside and outside this House, arguments adverse to the Garda Síochána, and if that continues there will be no motivation for the Garda to try to cope with the growing crime rate. If a garda steps out of line in the performance of his duties, naturally he must be subject to criticism but there is a danger in going from there and making generalisations about the force in this way that it will affect Garda morale.
That brings me to my next point. This community will not be able to rely on the Garda Síochána for protection if the Garda do not have the legal power and the resources to protect the community. If the Garda do not have the necessary legal powers then where will the community turn? I do not think I need spell that out. The argument that the young garda is trained to become suspicious by nature and is therefore no longer capable of being objective in regard to what reasonable suspicion might be and its evaluation was made by Deputy Skelly. Reasonable suspicion has been in existence for a very long time. It is an objective test. The point was made that if a person is arrested on reasonable suspicion and subsequently released without charge, that person has no recourse to the courts and cannot take action for unreasonable arrest. I have already given examples in connection with a neighbouring jurisdiction where persons got damages in certain circumstances for wrongful arrest. Under sections 17 and 18 reasonable suspicion leading to an arrest can become an appropriate consideration for the judge in deciding whether an inference is or is not proper. The judge can make up his mind after hearing the garda in the witness box. Then the judge can decide whether an inference is or is not proper and, if we support the rule of law at all, then we must support the authority of judges in deciding what is proper in the courtroom.
Deputy Barnes said hard cases make bad law. Of course they do. But I do not think it is a question of hard cases here. Here we are incorporating in our code of criminal law a change which many people, and that includes many legal experts like Judge Barra Ó Briain, consider is only common sense and it would be an affront to common sense not to have sections 17 and 18 as part of our criminal law. Deputy Barnes said we should not become emotional about these things, that we should be cold, detached and objective. Of course that is the way we should be in the House when dealing with legislation. However, to my mind when dealing with any problem in our society, whether it is the crime problem or some of the other social ills that affect us, if politicians are not emotional in response to these difficulties of society then there would be very little motivation for action. How do people make up their minds about anything? What normal person ignores his emotions and relies totally on his intellect? Has a Deputy not a right to be horrified if old people are being murdered around the country? Has a Deputy not a right to resent it when almost one house in eight in the country is broken into during the last 12 months? Have we not a right to resent that and be angry about it? Can that not be the motivation for action? To my mind we must be cold, detached and objective when examining the provisions of the Bill but the motivation for our action is what we see in our constituencies and throughout the country——
I thought that was the point I was making.
(Limerick East): —— and what we meet in our clinics. If one feels strongly about that the next question one must ask, “What am I going to do about it?” One then puts up proposals, and we examine them in a detached way. That is the process as I see it. I would hate to be a Member if a motion was ruled out of order and only intellect was considered appropriate when making laws. We have heard about the fears among many communities. Deputy Barnes said that the effect of the Bill will mean an encroachment on civil liberties. That fear has not been expressed to me by any residents or community associations. I have had representations from many groups and individuals but I have not had any representations from a community indicating opposition to the Bill. The fear in the communities is the fear of crime. I fully agree with Deputy Barnes, and the others who have argued the case skilfully and effectively over the months we have been discussing this legislation, that we must get the balance right. The danger as I see it is that there is so much pressure from communities on politicians to be positive and to respond positively to the crime wave that we could go too far in the Bill, lose the balance and forget about the civil liberties of individual citizens. I have been very conscious of that danger at all times. Deputy Woods in his carefully argued interventions — indeed, many Fine Gael Deputies have certainly kept me on the rails if there was any danger that I would go overboard in regard to encroachments on the rights of citizens — made those points.
I should like to thank Deputy Liam Cosgrave for his contribution. There may have been some waffle in recent weeks in this debate but, like all good debates, it was high class waffle, carefully argued, high quality material. By and large everything that was said was relevant, and while there was some repetition I do not think it was waffle. I believe the contributions were very good. I should like to thank Deputy Cosgrave for his support for the principle of sections 17 and 18. In my view they are important sections. I believe I have dealt with any new point that has arisen.
I should like to deal with a point I raised with the Minister, the question of caution. In the course of his reply the Minister referred to a caution, but the point I raised with him was whether or not in his discussions with the Attorney General about the form of the caution he would arrange to have a section in it which would indicate to a person that he or she is entitled to wait to consult with a solicitor before replying to a question. In referring to the caution, and the reply a person may make, the Minister indicated that it was in order to say, "no, I am not in a position to answer that question and I want to talk to my solicitor about it". Will the Minister consider having that included in the caution?
(Limerick East): I will consider that.
I support the Minister in the arguments he has put forward about sections 17 and 18. The truth of the matter is that if those sections are diluted in any way it will not be worth while bringing in the Bill, it will be plain useless. Without getting involved in any personalities here I must say that one would think that Members are living in a very sheltered society, that we are far removed from reality. Any Members involved in the campaign in recent weeks who met elderly people must be aware of the fear that is in their hearts about crime in their localities, their fear of a mugging or of murder. I tried to assure such people by telling them that we were introducing this Bill to give the Garda more powers. The Garda need those powers, although listening to contributions this morning one would get the impression that the gardaí are the criminals and not those who commit offences. I never thought that in the history of the House I would see the name of the Garda Síochána dragged across the floor of the House and accusations made that they were prepared to abuse the powers they have. In all sections of the community, even among Members, everybody breaks the law in some way or another but that is not any reason for a blanket condemnation of everybody.
In regard to the question of fear among the elderly I do not know if the Members who are accusing the Minister of seeking draconian powers in sections 17 and 18 ever interviewed such people. Are they aware of the feeling of helplessness among those people, the feeling that there is not anything they can do and that little is being done to protect them? I should like to compliment the Minister on introducing this legislation and incorporating sections 17 and 18. It is time some Minister for Justice introduced this. It would be very interesting to know, if the Minister for Justice cared to tell us, how many of his predecessors left this Bill lying on the table in the office in St. Stephen's Green without touching it. At last we have a Minister for Justice who has the courage of his convictions and brings in legislation that is badly needed. Listening to the debate this morning on the sections one would think that we were on Second Stage.
The Chair was beginning to get that impression also.
I am glad the Chair is on the same wavelength as I am. I had hoped that all Members would endorse what the Minister has said, that we have complete confidence in the Garda Síochána. The Minister was right in pointing out that if we continue on the same basis that we have been proceeding this morning the Garda will not bother to prosecute. Why should they if their name is to be besmirched and smeared by the people who should be giving them protection? The debate on these sections could go on until this day week. In my view the matter has been discussed fully and I am asking the Chair, on a point of order, to put the question in regard to them. I am proposing that.
We are taking two sections and two amendments together. I do not know exactly how much time has been spent on them. A considerable time has been spent on the discussion. I will not accept the proposal put forward just now.
When I read the Bill initially sections 16, 17 and 18 did not present any great difficulty to me. I would admit to being emotionally involved because of the nature of the constituency I represent. However, on consideration and having listened to the Second Stage debate I saw that section 16 had extensive powers and I would support the deletion of that section.
It is gone.
I feel that the powers in sections 17 and 18 are useful and necessary in the detection of crime and it is reasonable that people should be asked to account for suspicious objects and circumstances. I have heard of persons involved in the investigation of a case which occurred some time previously who, with the best will in the world, may not remember all the salient facts at the time of questioning. What are the safeguards in terms of case law in a situation where people genuinely cannot remember?
May I put amendment No. 37?
A number of Deputies spoke while the Ceann Comhairle was out of the House and they were critical of other Members. I do not know whom they were talking about, although Deputy McGahon picked me out for some reason. There are very few headlines in the Committee Stage of a Bill and I must compliment members of the press who sit through detailed consideration on Committee Stage which, at best, is a boring and technical business. I would suggest to Deputy McGahon and to Deputies Cosgrave and Begley that they should relax and take it easy because there is agreement that this debate will finish at some time tonight. There are important sections which involve major changes and being discussed as fully as possible. The Deputies may not be aware of the fact that these sections may not go into operation until the Garda complaints procedure is established. It is a pity that the Deputies make these kinds of points, especially when there is an agreement to conclude late this evening or early tomorrow morning. I would find it hard to see it going late into the night.
The Minister talks about the impact of this section in court. It is a matter for the trial judge in the first instance to tell the jury what kind of evidence may constitute corroboration. It is not normally a matter for the Oireachtas to say to a jury through a section that certain evidence will constitute corroboration. Section 17 (1) (c) states that failure or refusal of a person arrested to account for the presence of an object, substance or mark may be treated as corroboration of any other evidence in relation to which the failure or refusal is material. Is the word "may" to be treated as "shall"? If it means "shall" it is obviously a fairly clear direction. In so far as the section predetermines that a particular piece of evidence may be treated as corroboration, it would seem to take some function from the court and the judge. Will it have such effect? If it does so, there is the question of whether it would be constitutional. This may well hinge on the meaning of the word "may" and I would ask the Minister to explain further.
The section also provides that a person shall not be convicted of an offence solely on an inference drawn from such a failure or refusal. If a case goes to a jury for consideration on the basis of three different elements of evidence, one of which is the inference drawn from a failure or refusal to give an account under the section, and the jury in considering their verdict reject the other two elements but decide that the accused is guilty because of the inference they have drawn from the failure or refusal, they may decide to bring in a verdict of guilty, notwithstanding the provisions of the Act. Under the existing procedures there is no way of knowing whether they have decided a case on that basis, which could be contrary to the statute.
It may be said that a judge would direct the jury as to their duties under the section but it cannot be said that juries always follow adequately or properly a judge's directions in law. A judge may direct a jury to forget about the inference when deciding on the other elements, but there are indications that these directions are not always followed in practice. A jury may have to be asked a special question in addition to the simple question of "guilty or not guilty?" in order to have on the record, for the purposes of review by an appeal court, precisely what they did in relation to this special kind of statutory evidence. We are bringing in an almost statutory piece of evidence which has to be carried forward. Deputy Andrews was concerned about that aspect when he spoke yesterday.
If the jury have elements of evidence which, if accepted, would point to the guilt of the accused, one of which includes such an inference, what weight are they to attach to the inference in the light of the provisions of the section? If the elements which do not include the inference lead them to conclude beyond reasonable doubt that the accused is guilty, then the evidence tendered pursuant to the section would be irrelevant or unnecessary. However, if the three elements which do not include an inference from a failure or refusal to give an account do not lead the jury to conclude that the accused is guilty but, when they take in the extra element of the inference which they have drawn from the failure or refusal they conclude at that stage that he is guilty, are they not then arriving at their verdict in practical terms solely on the inference concerned? Is there not a practical danger that the statutory inclusion of the inference could lead to a situation in which, the other elements being set aside, they end up, in effect, concluding on the basis of this failure or refusal? This would appear to be the case, since it is this element of evidence solely which is the last step which finally brings the standard of proof required of the prosecution up to the level which would warrant a conviction.
It would not be sufficient to say that the inferences which were drawn from evidence tendered in the section can be considered by the jury once they have considered the other evidence and taken it into account. In practice it will not happen that way, that they will take the other evidence into account and consider it and then consider the failure or refusal before determining whether a person is guilty. The fact is that a jury always will have many other elements to take into account. It is really inconceivable that, at any time, they would have only an inference from refusal or failure to consider. For example, if somebody is charged with burglary the prosecution must prove that the burglary has taken place and that the goods have been stolen. Therefore the relevant householder will be called who will prove that the house was entered without his or her consent and that certain specified goods were taken. In addition, for example, the prosecution must prove the identity of the accused in the dock.
These are just examples of some of the elements that would arise for proof beyond reasonable doubt by the prosecution and which would be proved normally without any difficulty. However, it does not mean that the jury, in considering their verdict, must be satisfied beyond reasonable doubt as to these as well as any other facts of a similar nature which may be necessary as an ingredient in proving the offence and, therefore, would fall to be considered with evidence tendered under the section as to the failure or refusal to give an account.
On that basis it would appear to be inconceivable that the inference from a failure or refusal to give an account could ever be the sole basis for convictions. However, I appreciate that the Minister has included this section which says that a person shall not be convicted of an offence solely on an inference drawn from such failure or refusal. I agree with the Minister's decision to include that just in case such circumstances might arise and also in order to indicate that certainly it was the intention that such inferences would not be used solely as a basis for arriving at a decision. If one is to take the view that "solely" means without reference to any other evidence, the provisions would become meaningless. In this respect a court is unlikely to place a simplistic interpretation on the section, because it would not assume that the Oireachtas intended such an interpretation in the first instance.
Therefore the status of the inferences and the way in which they are to be interpreted is that about which I can see there is and could be some concern. The difference here is between whether the inference is something which is corroborative or is something which increases the probability of a person having being involved. Of course there is a difference between the probability that a person was involved and the fact that an inference might be corroborative evidence, that it would actually be usable as evidence in a corroborative way. It is important to draw this distinction between the probability of somebody having been involved — which is one of the elements that has been mentioned in the course of this discussion — and the question that the inference that is drawn could increase, in a person's mind, the evidence in support of a probability that they were there or were involved, as distinct from being corroborative evidence in itself. That aspect should be teased out to ensure that we are not talking about just corroborating a probability in somebody's mind rather than genuinely dealing with the corroboration of evidence. For example, it is said in the section:
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,...
The failure in itself may be treated as corroboration. I do not quite understand what is that corroboration, whether that is or is not evidence or whether it is corroborative evidence, or simply whether it is a case that it is seen as increasing the probability that somebody was involved, was there at the time of the commission of the offence, or whatever.
I should like to hear from the Minister in relation to the status it would have in corroborating evidence and how exactly that would function.
(Limerick East): Deputy Flaherty raised the position of a person who failed to remember certain salient facts when questions were put if there was an interval between the commission of a crime and the actual questioning of the person by the Garda. In my opinion — and if one thinks about section 17 — the most likely case to occur is that of somebody who is arrested who is required to give an explanation for an object in his or her possession — that is more likely to be the more frequent case — and there would not be a time lapse in that situation. If a time lapse occurred in the case of a stain, the condition of clothing, footwear or something like that, the actual test of it could arise only in court. Consequently it would be up to the judge to decide whether it would be proper to draw an inference. In relation to these sections obviously the judge is the significant person, and the provisions cannot operate without the judge's consideration that such inferences are proper.
Deputy Woods talked about the drafting of section 17 (1) (c) and the question of the inference and then the question of the inference being used to corroborate any other evidence. The end of the section deals with the status to be given to an adverse inference where it is said:
but a person shall not be convicted of an offence solely on an inference drawn from such failure or refusal.
That is the main clause, everything else is subordinate. Then it says that the jury, on the instruction of the judge, may draw such inference from failure or refusal as appear proper, the failure or refusal may, on the basis of such inference, be treated as or as capable of amounting to corroboration of any other evidence. Obviously that is subordinate to the main thrust of section 17 (1) (c) which is that a person shall not be convicted solely on the basis of an adverse inference.
On the question of whether the word "may" or "shall" should be used there, the intent is that, in appropriate cases, an inference may be drawn and, in appropriate cases, this would corroborate other evidence. Again, it would be in cases where it would be appropriate. Consequently, the word used is "may" rather than "shall".
It is very difficult to answer all the points Deputy Woods raised. Nobody knows how a jury operate or the procedures they use to arrive at their decision. In any case, it is difficult to say what weight a jury give to any element of evidence or ingredient of a case. A jury must examine all the evidence and must be satisfied, as a result of an examination of all the evidence, beyond reasonable doubt that somebody is guilty. I do not think that we can produce any evidence or argue conclusively in any way that a jury give higher regard to one element of evidence than to another. They do not have to explain their decisions. They come up with the result within the dynamics of the jury room and 12 people discussing evidence. It would be impossible for anybody to say categorically what tipped the balance in the mind of one particular juror, much less in the inter-action of 12 members discussing the corpus of evidence to know what tipped the balance to enable a jury to come to a group consensus beyond a reasonable doubt. Therefore, it is difficult to answer satisfactorily the points raised by Deputy Woods, apart from saying that I do not think anybody else could give a better explanation.
The provision is tightly drafted to ensure that there will be tight control by the judge on what would happen in the court. We will rely on the judge and his instructions to the jury to ensure that no injustice occurs. The jury have to be satisfied beyond reasonable doubt. They will be guided by the judge. The effect of the judge's directions will depend on factors like how effectively he communicates his intent to them or whether the jury always obey the directions of the judge. Even in circumstances now, if a judge instructs them that they cannot draw an adverse inference from silence, can we be sure that they comply with his instructions when in many situations it seems to fly in the face of common sense not to draw an inference? Even if they have three elements of evidence for their consideration, is it not reasonable and possible that doubt in the back of their minds about a person failing to give an explanation may weigh with them and affect the interaction of the discussion in the jury room?
On the question of whether an adverse inference, apart from enabling the jury to draw the inference, should be used as corroboration of other evidence, I think it should and that it is logical to do so. I would like to quote from paragraph 42 of the Criminal Law Revision Committee Eleventh Report Evidence (General), June 1972 presented to Parliament by the Secretary of State for the Home Department by command of Her Majesty. On this issue it says:
The following arguments have been put forward in favour of allowing silence to be corroboration:
(i) Once it is accepted that failure to mention a matter should be capable of giving rise to an adverse inference, it seems illogical that it should not be capable of amounting to corroboration. Evidence of the failure, having been made admissible, should be admitted for all purposes for which it is logically probative.
(ii) We think it artificial, especially in a statute, to provide that a particular kind of evidence which would naturally be regarded as capable of being corroboration should never be capable of being so.
Paragraph (iii) is interesting in an anecdotal way.
(iii) Not to allow silence to amount to corroboration would involve the judge's having to direct the jury in a way which would require them to draw a distinction which most people would regard as artificial. For example, if, on a charge of indecent assault, the defence is an alibi, and failure to mention the alibi to the police is capable of giving rise to an adverse inference but not of being corroboration, the judge will have to say something like this to the jury:
"You may think that no man who had been in the Pig and Whistle for the last hour before being stopped by the constable would have refused to answer the constable's question as to where he was and that in the circumstances his silence goes to show that, when he now tells you he did not assault the girl, he is not telling the truth.
That is fair enough because that is the instruction to the jury that they may draw an inference from his failure to mention the point.
But even if you do think this, you must on no account regard his silence as going to show that the girl is telling the truth when she says he did assault her."
The House will see the difficulty posed by that anecdotal example. A very artificial distinction is drawn there between the first sentence of the judge's instruction to the jury and the second sentence. On the one hand he instructs them that it is proper to draw an inference and on the other hand he says: "Although you are drawing the inference you cannot use that to corroborate other evidence". When we move to the drawing of an adverse inference it is logical that, as the report says, evidence of the failure having been made admissible should be admitted for all purposes for which it is logical to do so. The report continues:
This would seem hardly to make sense. We have formed the view that the arguments for allowing silence to be capable of being corroboration outweigh the contrary arguments.
Of course, the very implication of the last phrase is that there are contrary arguments and Deputy Woods has indicated the nature of the contrary arguments. However, the balance is in favour of what is in the Bill and of being able to use the adverse inferences for corroboration of any other evidence in relation to which the failure or refusal is material. It is drafted deliberately in a very tight way to give the judge overall control in the direction to the jury of when it would be appropriate to instruct them in one way rather than another.
The Minister in his explanation has come to the nub of the point. In effect we are introducing here a statutory piece of evidence and at present we cannot really know, there is no control and the jury do not have to explain how their decisions are arrived at. As the Minister said, they take all these matters into account, arrive at their decision and that is that. You cannot be sure which matters they use principally in arriving at their decision. Secondly, you cannot be sure if the directions of the judges are in effect being complied with and what influence the different pieces of evidence are having on the jury when they are arriving at their decision. Probably the reason why we are required to pass this section is that this piece of evidence can be brought in in a statutory way and can, therefore, be used as part of the influence on the jury in arriving at their decision. It is all the more reason why, regarding the comments made at that stage, the kind of reply given, the failure, refusal or whatever, reasonable safeguard should be applied. It seems clear that these inferences would in practice have a considerable influence on a jury in obtaining convictions, and presumably it is for that reason the Minister wants it included in the way he has proposed in the Bill. At least it will help people to be more clear on what this section is about. It is reasonable to agree that in line with what the three wise Deputies have been telling us, the great need is for urgent, dramatic and major steps to deal with the high level of crime, with cases of murder, rape, incest and the beating up of elderly people in their homes.
We had to tell the Deputy that.
(Limerick East): Is the Deputy planting an inference in the minds of the listeners?
That crossed my mind, but we know that they will see no evil, hear no evil and speak no evil. In any event we all want to go along with that line and we are taking this major step. The point is that what we are doing must be clearly understood so that in the drafting for the Report Stage the changes that are appropriate will be made. It is more clear to me at this stage that the purpose of the provision is to have statutory power to bring the inferences forward, to give them a new status at a trial and that therefore at that stage there can be a distinction as to what is to happen from there on. They can be used in corroboration. Presumably they will increase the probability of conviction. That is the purpose of them in the first place, but we will have no influence on them at that stage. Earlier I tried to bring out the point of what might be the situation in practice by suggesting that there might be two or three elements of evidence and that in respect of each one a defending barrister would be able to show there were weaknesses in each one. He might be able to show that on the basis of these elements alone the State could not prove beyond reasonable doubt that the person was guilty. On those grounds a prosecution could not be finalised, but having these inferences now in addition may be sufficient to implant in the minds of the jurors a corroboration of that other evidence which on its own they would not accept. That corroboration might be sufficient to tilt the balance of justice against the individual.
In the context of the many permutations and combinations that one could think of as to the way in which the provision might apply, one appreciates that it is only natural for people to have well-founded reservations about the introduction of such inferences. However, it may be necessary in practice to introduce them for a trial period, as the Minister is proposing. We are expecting that on Report Stage he will suggest a four-year rather than a five-year trial period.
I should like the Minister to tell us also if the situation in regard to inferences will have an effect in regard to deciding whether to send people forward for trial. Obviously, it will increase the likelihood of a person being sent forward for trial and on that basis would have a practical effect at that level.
On a point of order, I propose that the question be put now.
Taking everything into consideration I am reluctant to put the question. I think it should be put but I do not wish to accept it in a formal way. I will give it serious consideration but I am not accepting it now.
(Limerick East): What Deputy Woods is saying is a fair summary of the situation. The whole point at issue is that if someone is brought before a district justice and the question is whether he should be returned for trial, the adverse inference could be part of the book of evidence which would enable the district justice to make up his mind.
I do not propose making a long contribution but to refer to the sections in terms of whether they will have the desired effect of a reduction in crime or of the greater detection of crime. The case being made is that because of the level of crime these provisions must be brought in and that the result will be to increase the detection rate or to reduce the crime rate. I have argued consistently that there is no evidence to back that up.
One of the three Deputies to whom Deputy Woods has referred mentioned a detection rate of 32 per cent for serious crime. The Deputy referred to the report on crime for 1983 which was issued the other day. Page four of the report states that the overall detection rate in 1983 was 32.9 per cent and that it was 32 per cent in 1982. The detection rate varied from 82 per cent in respect of offences against the person to 31 per cent for the less serious forms of larceny. Offences against the person included all the categories which the three deputies referred to: murder, manslaughter, dangerous driving causing death, traffic fatalities, possession of firearms with intent to endanger life, assault and related offences comprising this group. There is a detection rate of 82.9 per cent in respect of those offences at present. To take selective statistics from the report and use them as an argument to support sections of the Bill is erroneous. If these Deputies had been involved in the debate from the beginning they would recognise that.
In relation to the argument that these sections will be effective in increasing the detection rate, I refer Deputies to the Journal of the Institute of Public Administration 1984, volume 31, No. 4. There was an article written by Mr. Ciaran McCullough on police power and the problem of crime in Ireland. In discussing the Bill before the Minister announced the deletion of section 16 he stated on page 419:
The failure of any particular dramatic effects to follow from changes in the right to silence was confirmed in a recent study in Singapore (Yeo, 1983). Singapore has a justice system modelled broadly on the British one. In 1976 the right to silence during police interrogation was reduced, the right to make unsworn statements was abolished and the courts were allowed to draw "adverse" inferences from a defendant's silence in court. However when Yeo compared the years before the change with the years after it he concluded (ibid.,: 95-96) that "the legislative intention that the amended caution would induce accused persons to be more responsive to police questioning has not been accomplished simply because accused persons rarely remained silent even before the amendments". Keeping silent altogether was as rare after the changes as it was before them. Overall then, while the right to silence exists in many countries, the evidence we have suggests that it is seldom used by suspected or accused persons. Changing the right therefore is unlikely to materially affect the willingness of people detained by the police to make statements.
That was the view expressed by a person who was fairly well versed in the area of crime and who had studied the effects similar sections have had in jurisdictions which have similar court and legal systems. He argued that the sections proposed will not have the effect which it is claimed they will have.
I will put amendment No. 37 now.
I wish to make a slight correction. In the Minister's previous reply where I had referred to section 17 (1) (iv) and mentioned the possession of objects in particular, the Minister pointed out that it was after arrest. I realise that but I do not think it invalidates the example I gave which was that evidence could be proffered by a garda in a case where he referred to a mark on the accused's clothing but did not tell the accused about the mark and then when in court claimed that the accused did not reply.
More than one side of the House has been guilty, if that is the correct word, of emotion when discussing these sections, as has the Minister. It is not the first time he used the veiled threat of a breakdown in Garda morale in order to justify the increase in powers.
(Limerick East): That is not a threat. It is a fact.
Then we had the supportive intervention of the three wise Deputies who said the whole system had broken down and that we must get it through. The great rush is on now for whatever reason I leave to everyone else's imagination. There is no danger of the Minister losing the vote. It is not necessary to refer to Garda morale breaking down. I do not believe it for a moment, because the pay and conditions are extremely good and the prospects of employment are extremely poor. If they left there would be a long list of applicants to replace them. Most of the gardaí and new recruits are fairly happy well-adjusted individuals. I have not seen any evidence of a breakdown in morale. The upper echelons in the Force are rock solid and very sound people. The public should not be influenced by that kind of suggestion.
It also smacks of the fear of crime which has been referred to. Very often the fear of crime is worse than the problem itself. If people are reluctant to look coldly and calmly at it they will make the mistake, as a result of fear or emotion, of opting for measures such as this. I appreciate that the Minister said that any danger of encroachment that he was likely to make on civil liberities has been well corrected by the House. That is correct, but they have been cosmetic adjustments and not real concessions.
Deputy Begley spoke about the sheltered society. He cannot be taken seriously from the short intervention he made.
I had every right to make my intervention.
I did not say the Deputy did not have a right.
I have as much right to make an intervention as Deputy Skelly has.
Certainly the Deputy has. He can make another one if he wishes. In his short intervention he so spoke about the sheltered society we live in and said we did not have our eyes open. That coming from a rural Deputy and said against Dublin-based Deputies who have heavily populated constituencies in a city of over one million people——
We have four day sittings in Kerry.
Deputy Skelly should come back to the amendment.
I was referring to the amendment.
I will allow a passing reference only.
The objective of trying to have balance in the debate is because the people who contributed to it and stay here all the time are people who are concerned and whose feet are on the ground. They are in touch with reality. I ask the other Members of this House who have not even ventured into this Chamber, and who represent the people of this country, where were they while we have been debating this very important legislation?
Is amendment No. 37 being pressed?
May I raise one further question?
We have reached the stage where we are having repetition.
I do not think I have been repeating myself so far.
I have considered the matter and I will give my consent to the Deputy putting one question.
(Limerick East): On a point of order, we have proceeded on this Bill on the basis of agreement between myself and Deputy Woods. He now wants to raise one further point and perhaps then we can put the question.
Is that agreed?
Deputies
Agreed.
I would not like to think that there was any intent to guillotine a section like this. It is very important that that should not be the case.
The Chair must bear in mind that we are in a limited debate situation and there are many other amendments and sections to be dealt with.
The point I wanted to raise relates to drafting and perhaps could be considered for Report Stage. The unintentional effect of this section could be that the old cumbersome procedure of taking evidence on deposition will have to be resorted to in cases where section 17 or section 18 evidence arises. The statements of evidence do not constitute evidence given in the District Court. It is open to the prosecution to call any witness in the District Court to give evidence on sworn deposition under section 7 (2) of the 1967 Act. When this is done the district justice may take into account the evidence which has been given in the District Court. Therefore, if the prosecution wish the District Court to take into account such inferences as may be drawn from a refusal or failure on the part of an accused person to give an account as envisaged by section 17 or section 18, it will have to call the relevant Garda member to give sworn evidence on deposition in the District Court of the matters referred to in subsection (1) of section 17 or section 18. This is the procedure which will have to be followed in all cases in which the prosecution wishes the District Court to take into account such inferences for the purposes of determining whether the person should be sent forward for trial. This is a consequence which was clearly not contemplated in the drafting of the section and one which is not referred to in the Explanatory Memorandum.
The procedure laid down in the 1967 Act was intended to, and did, streamline the cumbersome procedure which previously existed whereby all witnesses had as a matter of course to be called on deposition in the District Court. This meant their evidence was taken down in longhand by the District Court clerk, read back to the witness at the conclusion of his evidence and he then signed it. This does not happen now except where either the prosecution or the defence exercise their option to have one or more witnesses heard on deposition before the return for trial is made. This option is rarely exercised. It appears that an effect of the section may be that this procedure could be called into operation again. I appreciate that that is not the intention of the Minister or those who drafted the section and I would ask the Minister to look at this for Report Stage in order to avoid such an event occurring.
(Limerick East): I think the Deputy is probably right. This matter had not been brought to my attention until now. It is a question of looking at the draft to bring about a situation where that would not occur. I thank the Deputy for bringing this to my attention.
Amendment, by leave, withdrawn.
Section 17 agreed to.
Amendment No. 38 not moved.
Section 18 agreed to.
SECTION 19.
Amendments Nos. 39 and 40 are related and, by agreement, will be discussed together.
There is agreement on both sides of the House that we take a sos at this stage. If the Chair is agreeable we will do that now.
Today's Order of Business does not provide for any sos. If that order is to be altered it will have to be done in a formal way. The Minister will have to move this. Is that agreed? This is not a matter for the Chair to decide.
(Limerick East): I move: “That there be a sos until 2.30 p.m. and that discussion of the Bill be resumed at 3.30 p.m.”
Question put and agreed to.
Progress reported: Committee to sit again.
Sitting suspended at 1.40 p.m. and resumed at 2.30 p.m.