I move:
That Dáil Éireann resolves that sections 4 to 6, 8 to 10, 15, 16, 18 and 19 of the Criminal Justice Act, 1984 (No. 22 of 1984), shall continue in operation.
Criminal Justice Act, 1984: Motion.
This motion seeks Dáil approval for the continued operation of sections of the Criminal Justice Act, 1984, concerning the detention of arrested persons in Garda custody in certain circumstances, the withholding of information regarding firearms, ammunition or stolen property and inferences which may be drawn by the court from an accused's failure to account for certain matters. These provisions were brought into force on 1 July 1987. The effect of section 2 of the 1984 Act is that those provisions will cease to operate after 30 June next unless both Houses resolve that they should continue in operation.
As the Minister said in the Seanad in recent days when speaking on the equivalent of this motion, the fundamental purpose of the 1984 Criminal Justice Act was to enhance the capacity of the Garda Síochána to deal with crime. It is of the greatest importance in a democratic society that increased police powers be accompanied by appropriate safeguards. The reason for our discussing the 1984 Act now is primarily because as Members of the Oireachtas we have a shared concern to ensure that the safeguards put in place in this instance are working sufficiently well to warrant the continuance in operation of the sections of the Act which are referred to in the motion.
It is, of course, our clear duty to bear in mind that the Act itself is aimed at protecting the public against the activities of criminals and that such protection of the community in general is also a matter which must be of central concern to all public representatives and, indeed, all members of society. Crime is naturally a source of concern to society worldwide. Equally naturally, it is the subject of considerable media and political attention. For the person who is the victim of crime the reality is one of distress, the feeling of revulsion, of violation and a deep sense of injustice. It is a mark of a caring society that it demands response to incidents of this kind and that such incidents become the subject of political and media attention.
It is perhaps unavoidable that, from time to time, commentators may present an exaggerated picture of crime which does not sit easily with the facts. This can tend to create an excessive sense of apprehension, particularly amongst those who are, or see themselves to be, vulnerable to crime or have recently been the victims of crime. It is important that any commentator should understand the damaging impact overstatement in this area can have on the daily lives of the people we seek most to protect. It is important, therefore, that they should also hear us say, first, that in recent years crime levels have come down significantly, and, second, that substantial changes have been brought about by way of resources allocation and otherwise to strengthen our capacity as a society to deal with crime.
Let me repeat the salient points which the Minister for Justice enumerated while speaking to the Seanad Motion on 29 May 1991:
In the period 1984 to 1990 crime figures fell by about 12 per cent overall from 99,727 to 87,658 while the number of convictions rose by 10 per cent from 16,396 to 17,957.
Within these overall figures there are very encouraging trends, for example: offences against the person dropped by 30 per cent from 2,331 offences to 1,631; attacks on the elderly, one of the most despicable of crimes, fell by over 90 per cent from 432 to 51; residential burglaries came down 19 per cent from 18,774 to 15,160; unauthorised taking of cars came down 44 per cent from 18,735 to 10,521; larcenies from the person—down 23 per cent from 5,842 to 4,495; deaths on the road reduced by traffic law enforcement on an unprecedented scale — down 25 per cent in the first quarter of this year from 122 to 90; and armed raids, which peaked at 685 in 1986 were down 33 per cent by 1990 to 459.
On the resources and other fronts: 1,000 Garda trainees will have been taken on in the two years to December 1991; a further 1,000 will be recruited in the next three years; by the end of this year, 500 extra gardaí will have been put on our streets since July 1989; over 120 gardaí in Dublin alone have been assigned to community policing duties. Cork and Limerick have also benefited from this programme which will be further extended shortly and 350 experienced members of the force are being retained by a temporary extension of the retirement age of gardaí, sergeants and inspectors in order to strengthen the management of the force, some 660 promotions in their ranks have been authorised by Government since November 1989; in the last 18 months, 195 civilian staff have been taken on to release gardaí for outdoor duties. A further 55 civilians will be taken on for this purpose before the end of the year; a sum of £10 million is being provided in this year's Estimates to upgrade Garda equipment of every kind; by the end of this year, £40 million will have been spent on the current Garda building programme; Garda juvenile liaison officers and public service vehicle inspectors have been put on the seven day roster to enable evening and weekend working by these members of the force; the juvenile liaison officer service is being totally reformed. A national office to oversee this service was set up last December; community-based initiatives to rehabilitate young offenders have been set up in Dublin and Limerick and will be extended elsewhere; a Garda schools programme is now in place in 14 Dublin schools and will be extended to other population centres shortly; The Minister has obtained Government approval for the recruitment of a team of 31 extra probation officers in the current year to provide for an intensive supervision regime for about 200 offenders in the community as an alternative to custody; and there has been a major response to neighbourhood watch schemes with over 1,046 schemes now in operation covering 202,175 households.
The Minister for Justice is also currently examining proposals for an improved Garda service in rural areas. Deputies will recall the misleading comments reported in recent days in the media about this review. I am glad to have this opportunity to put the true position on the record.
The Garda authorities have submitted proposals to the Minister for reform and enhancement of the rural policing arrangements. These arrangements have remained largely unchanged since the foundation of the State. Any dispassionate observer will readily agree that policing in rural Ireland is ripe for fundamental review to ensure that rural communities are getting the Garda service they deserve and, as taxpayers, are entitled to.
I want to repeat the point that the plan submitted to the Minister by the Garda authorities is not, as some have suggested, a cost saving exercise; neither is it a front for station closures. The factual position is that it will involve substantially more, not less, expenditure on rural community policing. It aims at substantially improved contact between the gardaí and the communities they serve in rural Ireland.
The Minister wants to get gardaíin rural as well as urban areas out from behind desks to do the job for which they were recruited and trained. Under the plan they will have more transport, new computer facilities, additional civilian clerical back-up and will see the abolition of outdated record-keeping. For example, the number of forms to be filled at a Garda station will be reduced by more than half from the present number of 61.
Let me repeat, there will be no closure or downgrading of Garda stations. On the contrary, rural stations and Garda houses will be renovated, specifically to encourage gardaí to reside in the communities they serve. These proposals will guarantee to the general public that their local station will be open during those hours it is officially due to be open. At present the opening hours of rural Garda stations are unpredictable, with many of them closed for a quarter of their official opening hours. This is something the Minister is determined to redress.
Those who make a great play about the new proposals leading to severe restrictions in the opening hours of rural Garda stations might do well to inform themselves fully about the situation on the ground before making further inaccurate comments in this regard. I should also point out that any reduction in the current opening hours for a particular station would tend to free the local Garda for outdoor crime prevention and detection duties in their local communities.
The Minister considers it vitally important that expert advice received from the Garda authorities as to how rural community policing might be improved should receive full consideration. He does not intend to be deflected from his examination of the plan on the basis of misleading comments as to what is involved. Of course, full consideration will be given to all the views that have been put forward. both inside and outside this House, before any final decisions are made.
The Garda associations have already been given the opportunity to put their views to the Garda authorities and to the Minister. I can assure the House that he will weigh very carefully the views of all interested parties before finalising the new arrangements.
The Minister's major concern at this point is to reassure the rural community — some of whom, for example, the elderly, may have been unnecessarily distressed by the misleading and politically motivated statements which have been made—that the aim of the Garda plan is to make their communities safer from the activities of criminals and not the opposite. The aim is to devise ways in which the Garda service to rural areas can be improved. There is no hidden agenda in the Garda plans for rural policing and I deplore the irresponsible comments being made which suggest otherwise.
On the legislative front the Minister has been responsible for significant advances and in particular: the larceny Act, 1989; the Firearms and Offensive Weapons Act, 1990; the Criminal Law (Rape) Act, 1990; and the Criminal Justice (Forensic Evidence) Act, 1990.
The whole question of drug-related criminal activity has again become the subject of widespread and justifiable public concern. People feel that this menace, which was brought within bounds in recent years, is re-emerging as a problem on our streets. The Minister has discussed this issue in depth with the Garda authorities who, while reporting an increase in the level of drug seizures in recent years, mostly cannabis, say there is no question of the problem being on the scale which existed some years ago.
I would like to assure the House that the drugs problem is continuing to receive priority attention from a law enforcement point of view. All members of the Garda Síochána deal with law enforcement aspects of drug misuse within their operational area. In addition, specific Garda drug squads operate in Dublin, Cork and Limerick, and, at present, small specialist units are in operation in Dublin's north inner city, Ballymun, Ballyfermot and Tallaght. Similar specialist units are set up on a temporary basis in other areas as required. The strategies employed include intelligence gathering and analysis, surveillance, targeting and monitoring the activities of suspects as well as routine investigations.
There exists a high level of ongoing liaison with the customs authorities, which provides for exchange of information and for joint operations in major cases. This liaison includes meetings as required at senior level to exchange information and views on current trends and mutual problems. The Minister for Justice has been informed by the Garda authorities that the strategies are proving very effective.
There is also a need to develop and coordinate effective measures against drugs on an international level and this problem is being addressed in a number of fora in which representatives from this country are actively involved, such as TREVI, police group; CELAD, co-ordinators from member states; MAG, customs group; POMPIDOU, Council of Europe, and the United Nations. However, law enforcement on its own will never solve the drugs problem. This is an area in which the role of parents, teachers and other agencies caring for our young people is at least as important as the Garda response.
I was pleased that I was chairman of the Government's National Co-ordinating Committee on Drug Abuse for the past year. The need for a national drugs strategy has been recognised by the Government. We presented our report and recommendations to them earlier this year and they were accepted. My colleague, the Minister for Health, Deputy O'Hanlon, recently launched the Government's strategy to prevent drug misuse. The intention is to tackle the drugs problem on every front. Realistic and achievable objectives have been set for the reduction both in the supply and demand for drugs.
Again on the legislative side, the Minister for Justice has announced plans which he believes will make a major contribution towards the fight against drugs. Very shortly he will publish legislation to provide for the seizure and confiscation of the proceeds of drug trafficking and money laundering. I have no doubt that this legislation will be widely welcomed.
The bringing into operation of the sections of the 1984 Act referred to in the resolution before the House was subject, under section 1 (2) of the Act, to two important matters. The first of these was the enactment of legislation relating to the investigation and adjudication of complaints from the public against members of the Garda Síochána. Secondly, there was a requirement that regulations for the treatment of persons in Garda custody be made under section 7 of the Act.
Following the enactment of the Garda Síochána (Complaints) Act, 1986, which provides procedures for handling Garda complaints, the Garda Síochána Complaints Board were set up under the Act in April 1987. In view of the backlog of complaints with the board, perhaps I should at this stage, say something about the matter and the operation of the board generally. The Act requires the board to keep under review the workings of the system of investigation and adjudication of complaints and to make a report thereon every three years. The first such report by the board, their Triennial Report 1987 to 1989, was published just a year ago. This report gave a very full account of the board's activities up to then. It contained comments and recommendations on the Act and included chapters on staffing and on possible less costly alternatives to the present system. However, it is particularly noteworthy that the board indicate in the report that their conclusion is that the Complaints Act is basically sound and provides an adequate legislative basis for the proper investigation of complaints.
With regard to staffing, the report referred to a less than satisfactory situation and it called for additional permanent staff for the board plus temporary staff to clear the backlog of complaints. The receipt of a greater number of complaints than anticipated when the staffing complement was being decided was a major cause of the backlog of arrears. However, the volume of complaints received has been dropping steadily since 1987 and I understand that this is in line with the experience in other countries when a new complaints board is established.
The Minister for Justice, of course, shares the board's concern about the backlog of complaints. His concern is both with the position of the public and with that of the members of the force about whom complaints are made and in whose interests it is that complaints should be dealt with promptly. It was for this reason that, on assuming office as Minister for Justice in July 1989 and on being made aware of the board's position, he immediately took up with the Minister for Finance, Deputy Reynolds, the question of additional staffing resources for the board. He subsequently obtained agreement to the sanctioning of four extra staff members for the board, thereby increasing their complement from six to ten.
All of these extra staff were made available by redeployment from elsewhere in the public service and assigned to the board by December 1989. The nature of the work involved, however, means that it takes some time for additional staff to make an impact on the volume of arrears. However, the impact of the extra staff is reflected in the reduction which has been brought about in the real backlog of complaints from about 750 last November to under 500 today, a decrease of about one-third in six months. Nevertheless, it is the Minister's wish that the backlog would be cleared completely and, therefore, notwithstanding this improvement, he is still actively pursuing the possibility of providing staff resources for the board and provision for this purpose has been made in the board's allocation in this year's Estimates.
The second matter I referred to earlier, namely, regulations regarding the treatment of persons in custody in Garda stations, came into force in May 1987. The regulations impose a duty on the Garda to act with due respect for the personal rights of persons in custody and their dignity as human persons.
As required by the 1984 Act, the regulations include provision for the assignment to a member of the Garda Síochána of appropriate rank in each Garda station of responsibility for overseeing the application of the regulations to persons in custody. That responsibility includes such matters as ensuring that persons in custody are informed of their rights and arranging for a solicitor to be contacted or some other person to be notified where a person in custody has decided to exercise those entitlements. The member in charge also has overall responsibility for the accuracy and completeness of custody records which provide a full and detailed account of any period during which persons are in custody in the Garda station. The regulations were approved by both Houses of the Oireachtas prior to their being brought into operation.
I turn now to each of the sections of the 1984 Act which are the subject of the resolution before the House.
Section 4 of the Act gives the Garda power to detain for up to six hours a person who has been arrested without warrant for an offence carrying a penalty of at least five years imprisonment. The six hour detention period may be extended for a further six hours on the authority of a Garda superintendent. A period between midnight and 8 a.m. during which questioning does not take place may be excluded in calculating the permitted period of detention if certain requirements, which include the agreement in writing of the suspect, are satisfied.
In considering section 4 it is important to bear in mind that it contains the only general legislative power the Garda have to detain, for questioning, persons who are reasonably suspected of having committed a serious crime. There is a power to arrest and detain persons under section 30 of the Offences Against the State Act, 1939, but that provision deals only with a limited range of crimes—it does not cover, for example, ordinary murder, rape or robbery.
Prior to the late seventies the Garda operated on the basis that they could ask a suspect to go to a Garda station to "help them with their inquiries". That situation changed completely about 1977 when the courts overturned the Garda practice in these situations and held that it was unlawful. The courts also rejected as inadmissible in evidence confessions or incriminating statements obtained during periods when it was adjudged that an accused person had been unlawfully detained. The Garda difficulties in the matter were also exacerbated by court decisions to the effect that where a person went to a Garda station voluntarily and the stage was reached where he came under suspicion for the offence, then he had to be told by the Garda that he was free to leave the station unless and until he was arrested. That new requirement could involve interrupting a suspect who was freely making a statement containing an admission of guilt and from a Garda viewpoint it virtually destroyed the practical value of being able to "invite" persons to the station.
The position prior to section 4 which I have mentioned helps to illustrate the problems that the Garda faced before its enactment. The need for the detention powers as such in section 4 is, I think, beyond dispute. Much more extensive detention powers for investigating crime operate in other European countries — in the United Kingdom, for example, detention in police custody for up to 36 hours is permitted for the investigation of a serious offence and after that period the suspect may be brought before a magistrate who may order the person to be further detained up to a maximum of 36 hours.
The real question we have to ask ourselves is whether safeguards built into section 4 to minimise abuse are satisfactory and have, in fact, minimised abuse. The safeguards in the section are stringent. Before a person can be detained, he must have been arrested, with reasonable cause, on suspicion of having committed a serious offence. The member in charge of the Garda station to which the suspect is taken must have reasonable grounds for believing that detention is necessary for the proper investigation of the offence.
The arresting garda and the member in charge are liable to be cross-examined on the reasonableness of their actions and it is open to a court to decide whether, in all the circumstances, their actions were justified. This is also the situation where a Garda superintendent extends detention beyond an initial six hours. The superintendent can only authorise such an extension on the basis of reasonable grounds for believing that further detention is necessary for the proper investigation of the offence.
The operation of section 4 is limited in other important respects. A detained person must be released forthwith if there are no longer reasonable grounds for suspecting that he has committed the offence for which detention is permissible. Once a person is charged, questioning must stop and the person must be brought before a district justice as soon as practicable.
Deputies will be interested, therefore, in the way in which section 4 has operated in practice. The Garda authorities were requested to maintain statistics on the operation of the section and the relevant information is contained in a table which I have arranged to be circulated to Deputies.
In the period 1 July 1987 to the end of December 1990 a total of 24,095 persons were detained under section 4. This I believe, demonstrates the importance of section 4 to the Garda. Of those who were detained, 58 per cent were charged with an offence for which they were held under the section. That figure comprises those who were charged immediately or on the spot so to speak and those who were released without charge but subsequently charged with an offence for which they had been detained. The very high proportion of persons charged provides a clear indication that persons are being detained under section 4 where there is a real suspicion that they have committed a serious crime.
It is also significant that the number of cases where detention was extended beyond six hours was approximately 16 per cent of the total number of persons detained. That figure could not be described as excessive and certainly lends weight to the view that the Garda have exercised their powers under section 4 in a responsible manner.
This is something that also emerges from the statistics for the lengths of time after which persons were charged or were released without charge: for example, well over 50 per cent of the persons who were released without charge were released after detention for under three hours; and detention was extended in only 11 per cent of cases where the person was released and not charged. On the basis of the information available to him, the Minister is satisfied that section 4, containing as it does reasonable powers of detention and safeguards, should indeed continue to be part of our law.
Sections 5, 6 and 8 to 10 referred to in the resolution are related in one form or another to section 4 but are important provisions in their own right.
Section 5 imposes a duty on the member in charge of a Garda station to inform a person detained under section 4 that he is entitled to consult a solicitor and to have notification of his detention and whereabouts sent to another person. Upon request, the member in charge is required to cause a solicitor and a person named by the detained to be notified. Where the detained person is under 17 years of age, a parent or guardian of that person must be informed of his detention. I might point out that the Supreme Court has since held, in People (DPP) v. Healy, December 1989, that a person detained by the Garda has a constitutional right to consult a solicitor if he wishes to do so.
Section 6 gives necessary powers to the Garda authorities to carry out a full and proper investigation of the offence or offences for which a person is detained under section 4.
A garda may obtain the name and address of the detained person, search him, photograph him, take his fingerprints and palm prints, and seize and retain for testing anything he has in his possession. The section also allows swabs from skin or samples of hair to be taken for the purpose of testing for contact with firearms or explosives. However, the Criminal Justice (Forensic Evidence) Act, 1990, repeals and re-enacts that particular provision with more extensive provisions in relation to the taking of bodily samples. Arrangements are being made to bring that Act into operation as soon as possible.
The section places a number of restrictions on the Garda where the exercise of the more intrusive powers conferred is involved. A detained person cannot be photographed or fingerprinted or required to remove certain clothing without the prior authority of a Garda superintendent. In exercising those powers there must be reasonable cause to suspect that the person is concealing drugs or explosives on his person.
Deputies will note from the table I have circulated that the number of cases where fingerprints were taken under section 6 for the period 1 July 1987 to the end of December 1990 was 5,501 and that a search involving the removal of underclothing was authorised in 1,274 cases. These figures represent 23 per cent and 5 per cent, respectively, of the total number of persons detained and there is nothing in them to suggest that the powers conferred on the Garda are being excessively used.
Section 8 provides that every copy and record of a photograph, fingerprint and palm print of a person taken under section 6 must be destroyed after six months if the detained person is not prosecuted or if he is acquitted. The person concerned is entitled to witness, or to have another person witness, the destruction of the photographs etc. if he so requests. In the event that the DPP wishes to retain section 6 material when it would otherwise have to be destroyed, he must satisfy a district justice that the material may be required for the purpose of criminal proceedings in relation to the offence for which the person was detained.
Section 9 applies certain provisions of the 1984 Act to detention under section 30 of the Offences Against the State Act, 1939. These include the right of access to a solicitor and the requirement that the taking of photographs and fingerprints must be authorised by a Garda superintendent or higher officer.
Section 10 contains safeguards against rearrest and detention under section 4 for the same offence. A detained person may not be arrested again for the same offence unless it is for the purpose of charging him with the offence immediately or, the Garda receive further information and a district justice authorises the rearrest. A similar restriction operates in relation to the use of section 30 of the Offences Against the State Act where a section 4 detainee is released because, in order to detain that person under section 30, he would have to be arrested and, accordingly, section 10 would apply. A person who is arrested for an offence under section 30 and not charged cannot be detained under section 4 for the same offence or for an offence of which he was or reasonably ought to have been suspected at the time of the initial arrest.
I turn now to sections 15, 16, 18 and 19 of the 1984 Act covering certain matters other than detention. Sections 15 and 16, respectively, make it an offence to withhold information about the source of illegally held firearms, ammunition and stolen property. The Garda must have reasonable grounds to suspect that the firearm, ammunition or stolen property is illegally held. The Garda must also explain to the person the consequences of his failure to provide the required information. Any information given cannot be used against the person or his spouse unless he is charged with an offence under the section. Although the number of prosecutions under the sections has been few, the Minister has been advised by the Garda authorities that the provisions are of importance in Garda efforts to get at the source of supply of arms used for criminal purposes and the source of stolen property. There were four and five prosecutions, respectively, under sections 15 and 16 for the period 1 July 1987 to the end of December 1990.
Section 18 allows a court or a jury to draw an inference from the failure or refusal of an accused, when questioned by a garda, to account for the presence of an object, substance or mark either on his person or clothing in the place where he is arrested without warrant. The idea behind the section is that a suspect could be expected to account for, say, a stain on his clothing which might be attributable to his participation in a specific offence. This is no more than common sense and it is something a jury would, in any event, be fully aware of apart from this section. Section 19 allows an inference to be drawn where the arrested person fails or refuses to account for his presence at or about the time the offence for which he was arrested was committed. The Garda must inform the person about the consequences of his failure or refusal to comply with the sections and a person cannot be convicted solely on the basis of an inference drawn under those sections. The number of persons failing to comply with sections 18 and 19 was only two and 13 respectively, for the period 1 July 1987 to the end of December 1990.
Apart from the statistics I have made available about the numbers of cases arising under the sections of the 1984 Act, Deputies will be interested to know that the Garda Complaints Board have informed the Minister that, while the statistical system operated by the board does not link complaints to specific sections in the 1984 Act or indeed any other Act, the board can say that they have received very few complaints relating to the 1984 Act.
That more or less concludes what I have to say about the sections referred to in the resolution. However, I should like to say something about another section in the Act, section 27, which provides that the Minister for Justice may provide for the recording by electronic or other similar means of the questioning of persons by members of the Garda Síochána in connection with the investigation of offences.
The need for such recording was considered in detail by the Martin Committee in the context of their examination of the need for additional safeguards, given that an uncorroborated inculpatory admission to the Garda Síochána can be sufficient evidence to ground a conviction. The Martin Committee, in their report, outline the many safeguards which exist at present in relation to Garda questioning of suspects — for example, the right to remain silent, the Judges' Rules, the right of access to legal advice, the Garda Síochána (Complaints) Act, 1986, and the responsibility which the Treatment of Persons in Custody in Garda Síochána Stations Regulations, 1987, place on the member in charge in a Garda station in relation to persons in custody. Indeed, it is worth noting that the Martin Committee state in their report as follows:
... we should state, however, that the submissions received from practitioners, and in particular from defence practitioners, are unanimous to the effect that the coming into force of the Regulations for the Treatment of Persons in Custody in Garda Stations, coupled with the setting up of the Garda Complaints Board, has resulted in the virtual disappearance of complaints of physical ill-treatment or threats of violence.
The position, therefore, is that the existing safeguards, and in particular those which were introduced subsequent to the 1984 Act, play a very important role in ensuring that the rights of the person being questioned are upheld.
Our Department and the Garda authorities looked into the possibility of introducing arrangements for the audio recording, that is sound only, of the questioning of suspects by the Garda Síochána, similar to arrangements which were in operation in some other countries. However, in view of developments in technology, some countries which had introduced audio recording are now trying out video recording on a trial basis.
The Martin Committee also considered the question of introducing audio recording, which would cost substantially less than video recording, but came down in favour of the latter. We are now in a position to avail ourselves of the experience of other countries in relation to both audio and video recording and to ensure that any system introduced takes account of the lessons learned in other countries and makes the best use of scarce financial resources.
As Members will appreciate, the introduction of video recording means that video evidence, even during a pilot scheme, will be available to the court. It is essential, therefore, that all issues regarding the operation of the system are decided upon in advance of the introduction of a pilot scheme. The Minister for Justice is considering this matter at present and he hopes to be in a position to put proposals in relation to a pilot scheme before the Government shortly.
The Minister is satisfied that all of the sections of the 1984 Act referred to in the resolution should continue in operation. The view of the Garda authorities is that the provisions have played a vital role in the detection and prosecution of serious crime. It seems clear also that the provisions have played their part in deterring people from criminal acts. The Minister for Justice has no doubt that, as regards the section 4 detention provisions in particular, the vast majority of people would accept that the Garda must for the purpose of questioning and conducting investigations and inquiries have the power to detain for a reasonable period those persons who are suspected of having committed crimes, which may include murder, drug trafficking and serious robbery.
All the indications now, in the light of experience for the four years of their operation, are that the 1984 Act provisions in question have operated satisfactorily. I therefore commend the resolution to the House.
Before dealing with the various sections of this Act, which the resolution seeks to renew, I should like to consider the overall effect of the Act in relation to crime since it was enacted. This Act was introduced by the 1982-87 Fine Gael-Labour Coalition Government because it was felt that the powers available to the Garda Síochána needed to be increased. I recall a great deal of opposition from the party now in Government and I welcome the fact that they have come to realise it was good legislation.
We are very flexible and adaptable people and can always untilise good resources.
The rules under which the Garda were working were clearly hampering them in their efforts to combat crime and full advantage of this was being taken by various criminal elements. This Act has helped considerably in dealing with the problems of crime. Whatever the figures are today, I have no doubt that they would be far worse if this Act had not been introduced. The Government are attempting to convince the electorate, particularly before the local elections, that crime rates have reduced significantly. I do not know where the Minister is getting his facts. I will quote one example from my own constituency which disputes this assertion.
In the Shankill area of County Dublin there were 256 recorded house break-ins in 1990. In 1987 there were 167. The Minister, in reply to a parliamentary question tabled by me recently, stated that the tentative estimate for the first three months of this year in the same area is 135 house break-ins. If this trend continues it would mean that we would have over 500 house break-ins in 1991 in Shankill alone, double the figure for 1990.
The Minister and the Government are parading around the country trying to convince members of the public that crimes rates are reducing. If we engage in that sort of fairytale we will not wake up and realise that there is a real problem. It shows how much the Government are out of touch with the electorate. I cannot understand how a Minister can stand up in this House or outside it and publicly say that crime rates are dropping. I repeat that in 1990 in the Shankill area alone there were 256 recorded house break-ins. This information was supplied by way of parliamentary question. In the first three months of 1991 the figure was 135. Multiply it by four and you have in excess of 500 if the trend continues.
If.
That is 50 per cent of what was there last year. You can quote figures if you wish, but it depends upon the period you choose. I am dealing with what is happening today on the ground. Anybody who has been out canvassing for the local elections knows the facts as presented by the Minister are false. The public are quite aware that there is a serious crime problem facing all of us. I have no doubt also that a number of people have stopped reporting crimes, especially minor burglaries, petty thieving and vandalism causing damage to property. The fact that these crimes go unreported is a measure of people's despair of anything being done about it. People are afraid to walk our streets for fear of being mugged. They are afraid to open their doors at night. I suggest to the Taoiseach and his Ministers that they canvass parts of Dublin, particularly where there are old people, and knock on a door after 7 p.m. or 8 p.m. and see if they will get an answer. They will see perhaps a lady living on her own looking out the window afraid to open the door. In many areas in the city people are afraid to leave their cars. All these are facts, not fiction.
It is true that increasing the number of gardaí alone will not solve the problem of increasing crime. As long as we have over 250,000 people unemployed, continued drug abuse, lack of educational facilities for a large section of our population, we will have high crime. I do not suggest that any of these problems constitutes an excuse for committing crime; but as long as we have the current social problems affecting vast sections of our society, especially in the urban areas, whether we like it or not, if unemployment continues at its present high level, with no job prospects available particularly for young people, we will have crime. If a very high proportion of our young people in certain areas in urban Ireland find it impossible to get to third level education or advanced training at that level we will have massive unemployment resulting in high crime.
Another scandal is the national lottery legislation which was put through this House to provide resources in particular for sporting and recreational facilities. I know what I am talking about because I was involved in it. The intention was that with this money we would build up throughout the country sufficient centres where people could spend their spare time in a positive, constructive way through recreation and sport. I have yet to see one hoarding in any part of the country which indicates clearly that this development is by way of national lottery funds. I produced a plan, which the Opposition at the time criticised——
Some of us worked at it, too.
——to build a number of regional centres throughout the country. The locations were identified, negotiations had commenced and we heard a big outcry because we were not going ahead first with a national stadium. I am blue in the face reading that the Minister of State, Deputy Fahey, is announcing for the 54th time that some day they will be proceeding with a national indoor centre down on the quays. I have not yet seen a sod turned. The Government are now four years in office. Where has the money gone from the national lottery for sport and recreation? We know much of it has gone into facilities in the constituencies of Ministers and Deputies from the other side of the House and given to clubs who do not really need the money. Compare a private golf club getting national lottery funds to what I experienced recently when I attended the annual general meeting of the Ballybrack Boys' Football Club, of which I am proud to be president. That club caters for 13 juvenile teams mainly in local authority housing estates. The cost of running that club is about £11,000 per annum through insurance costs and transport costs for the young kids, many of whose parents are unemployed. Not one penny is available to clubs like that from our national lottery to assist in their running and provide a social service to an area which is much in need of help. If you happen to be in a Minister's constituency and you want national lottery funds for some project or other that might produce a few votes, yes, you have a fair chance of getting it; but not for the people most in need. We are fortunate that we have dedicated people who are spending four or five nights per week looking after young children in areas of massive unemployment and lack of facilities, and let me say those people who so give up their spare time have families also. In addition they have to go around begging their friends and neighbours to buy a ticket in a draw or attend a dance to keep a small club like this going.
Then you wonder why there is vandalism in many areas, particularly urban Ireland. Are we fooling ourselves? What is happening to this money? Why is it not being used in this area? Prevention is better than cure. Again I am not making excuses for people to engage in crime because they find themselves unemployed or in difficult circumstances, but as long as those social problems are present we will have crime. As long as there is drug abuse there will be house break-ins and similar type offences because people need money to feed their habits.
Again, I call on the Minister for Justice to establish a criminal law reform commission to review and update the criminal law and bring it into the 21st century.
Regarding juvenile crime, we must look at parental responsibility as well as the provision of adequate places in detention centres. I mention parental responsibility deliberately. It confuses me, and a number of people I speak to, that 13, 14 and 15-year-olds are consistently appearing in the District Court in this city and other urban areas with 40 or 50 charges against them of house break-ins, vandalism — you name it. All these are offences being committed at 12 midnight, 1 a.m., 2 a.m. These young people are allowed out on our streets at 1 a.m. and 2 a.m. breaking into people's homes, damaging people's property and nobody asking where the parents are or who is responsible. Of course, we have to help. We have to take those children and, unfortunately, perhaps put them into a detention centre for a period, hoping when they are in there they will get some sort of help to wean them off a future of crime.
These children are returning to exactly the same situation they left. Having spent all that money on trying to help, cajole and provide adequate detention centres they walk back into a home where the parents do not bother. I do not accept any parent saying to me that they have lost control of their 12-year-old or 13-year-old child. It is important that we modernise our laws.
It is important that we, as elected representatives of the people, face up to the sort of problems that society is experiencing today rather than concentrate on laws which were meant for a different time and a different era. When people drive in certain streets in the city and stop at traffic lights, a group of 13-year-olds or 14-year-olds can smash the window of the car, take a handbag from the back seat and run off and nobody asks where the parents are. Some parents are responsible if their child gets involved consistently in crime. I do not say that all parents of children who get into trouble are at fault. Unfortunately there is always the wayward one and there are occasions when parents do their best and still it may happen once or twice. When it happens 40 or 50 times there is no excuse.
There are many instances where, in addition to the child receiving help, the parents need assistance but there is no system of making certain that those parents receive the help and guidance they need to look after their children properly because our system does not cater for that. When a child has to appear in a District Court it is not obligatory that the parents be informed that the child is in court. Under a particular section in this Act if a child under 17 years, is in a police station for questioning on a serious offence involving a sentence in excess of five years, we are obliged to inform the parent or guardian that the juvenile is in a police station. If it involves a less serious crime but still affecting society, the parents are not informed. If we want to have parental responsibility, we must change our laws to involve parents at a very early stage and let them know what is happening before it is too late.
We must also face up to the fact that crime has become big business. It is time we gave our courts discretion in deciding where assets which were clearly built up as a result of criminal activities could be confiscated. Detention alone is no longer a deterrent for some criminals. I am encouraged to hear the Minister say that at long last we are getting the legislation we asked for in relation to the confiscation of assets derived from drug dealing, but it should go beyond that.
Somebody breaks into a home and takes £400, £500, £1,000, £2,000, £3,000 or whatever it may be, which I and many people like me may have been saving for a long time to get a present for our wives or children or certain items for the house. It might be repayments on a loan from the bank. Although we are paying high premiums for household insurance cover lo and behold someone can walk in, take our property, walk away — obviously there is some way they can sell them and build up a very nice nestegg. If we are fortunate enough to catch them — there is a one in five chance that we may catch them — the justice may decide to put them into prison. When they go to Mountjoy Prison it costs me, the taxpayer, in excess of £600 per week. When they return to normal society they proceed to enjoy the proceeds of my property and that of other people. This is a great way of making a living.
Nobody asks me — the victim of crime — anything about my property. Why should not that person, having been caught, return to me the value of the goods they took from me or if they do not have the assets why can an attachment order not be placed on their future earnings when they will say to me: "yes, I am responsible for repaying you the £1,000 worth I took from you and from your neighbours"? Then, we might do something practical about crime. Everybody here knows there are certain individuals who know they are likely to spend three months in the "Joy" but it is worthwhile because the business is probably worth £30,000 or £40,000 per year. Following three months in prison at the taxpayers' expense — £600 per week — they come out and enjoy my property. It would be cheaper to send them to the Berkeley Court. Certainly putting them into prison will not act as a deterrent. The day you say to them: "Crime no longer pays and that you have got to return to society what you took out of society", then you might stop them breaking into the 500 houses which I anticipate will have been broken into in Shankill in this year alone. In the first three months 135 houses were broken into in that area. It is evident from the canvass I am doing in that area that people are afraid to walk our streets. It is gone beyond a joke.
I am totally in support of giving a person a reasonable chance of defending themselves; I am totally in support of providing every possible protection to society so that powers will not be abused, that the courts will behave in a reasonable way and that people have representation in court. It is important to remember that when these laws were drawn which established these principles, they were different times and we were dealing with different types of criminals, people who were uneducated and could not represent themselves, people who were illiterate and who came from a background of complete and utter hopelessness. Today's criminal is a different kettle of fish altogether. Today we have sophisticated criminals engaging in big business, in drug dealing and in bank raids. These are not all uneducated. They can march into a court and defend their right to have legal representation paid for by the taxpayer, but the poor unfortunate victim of crime gets help from nobody. When that person's insurance premium is due for renewal his insurance premium will increase. Not alone have they lost their goods but now they have to pay more insurance costs for cover if they succeed in getting it for the next 12 months. If anybody tries to tell me that that is for the good of society I will eat my that.
I turn now to the section of the Minister's contribution dealing with the Garda. The Minister makes great play of the fact that 1,000 gardaí will be recruited over the next three years but he overlooks the fact that in the same period almost 1,000 gardaí will be retiring. We recruit 1,000 gardaí to replace the 1,000 gardaí who will retire. That is very sensible, but do not try to fool the public that Garda strength is being increased by a further 1,000 or that because we recruited an additional 1,000 gardaí in the last two years the strength of the Garda Síochána has increased by a further 1,000. The reality is that, while there were 11,400 gardaí in 1985 this figure had been reduced by 1990, even after the recruitment of an additional 1,000 gardaí to 10,500. There are 900 fewer gardaí today than there were in 1985. I do not know how the Minister will be able to deal with the increased level of crime and more sophisticated criminals if the Garda strength continues to be reduced.
The Minister can continue to deny that there are problems in both urban and rural Garda stations, but if he visits my constituency he will see the problems with which gardaí have to deal. The numbers of gardaí in the Garda stations in Cabinteely, Dún Laoghaire and Blackrock have been reduced since 1987. Those facts were supplied to me by way of reply to a parliamentary question. The only exception relates to the Garda station in Dalkey where there are 26 gardaí, the same number as in 1987.
If 32 gardaí are allocated to a station that number has to be immediately divided by four as there are four rosters — three shifts and one rest period. This leaves a total of eight gardaí on duty at any time. One also has to take into consideration that gardaí will be on station duty and special duties such as protecting embassies etc. Cabinteely Garda station covers an area where seven cars were burnt recently in the driveways of both local authority and private houses. It is only through the mercy of God that the cars did not explode and the houses were not burnt down. Only two gardaí for Cabinteely Garda station are on night shift in that area. The Minister can check this by telephone if he so wishes. The Minister can play around with figures and try to confuse the public with PR stunts, but that is the reality. The chief superintendent in Dún Laoghaire is left in the position where he has only two gardaí available to patrol an area where crime, drug abuse and house break-ins are rampant. When gardaí recently tried to arrest people who were selling drugs in an adjoining area, Kill-o-the-Grange, they were attacked by pit bull terriers. Hooligans patrol the open spaces outside the buildings where the drugs are being sold and when gardaí move in they are attacked by these pit bull terriers. Some of the gardaí involved in the incident to which I referred ended up in hospital.
I do not know how two gardaí are expected to patrol this substantial area in terms of houses and population at night time when most crimes are committed. It is mainly at night that cars are burnt in driveways and houses broken into. How can the Minister expect two gardaí to cover such a wide area and deal with such criminals? I have received correspondence from people who are rightly concerned about the 999 system. It may take up to three quarters of an hour before the gardaí are able to respond to an emergency call. If the two gardaí on duty are investigating a crime it may take them an hour before they can deal with any other emergency call.
If the Garda strength continues to be reduced and our laws are not changed there will be more crime and the public we are supposed to represent will have less protection. As I said at a recent meeting, what is the point in balancing the books and getting our current budget deficit and balance of payments in order if people are afraid to walk the streets, old people are afraid to leave their homes at night time, people's homes are being broken into and young people are being attacked getting off buses or trains after an evening out? What good will a reduction in our current budget deficit be to a lady who lives in a semi-detached house, who has worked hard all her life, raised her children and lost her husband and who has to put two bolts and three locks on the door at 8 p.m. in the evening? This woman cannot enjoy life, she is afraid to go out. She is reluctant to visit her daughter, son or neighbours because she is afraid that her house will be broken into while she is out. That woman is living in constant fear. Society has an obligation to provide adequate protection for such people. I am prepared to pay, by way of taxation, an adequate sum of money so that these people can be protected and go about their daily business.
The juvenile liaison scheme, which has a big part to play in preventing crime, or at least preventing crime becoming more serious, has been under-utilised and underfunded and promises made by the Minister in this area have not been fulfilled.
The situation in regard to the custodial care of juvenile offenders is most unsatisfactory, with the buck being passed between the Minister for Health, the Minister for Justice and the Minister for Education. Surely it is time that the matter of custodial care of juvenile offenders was made the responsibility of one Minister? Until this happens the custodial care issue will continue to be a political football.
The neighbourhood watch and community alert schemes have been a great success but, again more resources must be placed against these schemes in view of their cost effectiveness in terms of preventing crime through citizens' co-operation with the Garda. We must provide adequate resources to encourage active co-operation between members of the public and the Garda Síochána. The Garda cannot deal with the problem of crime on their own; they need the co-operation of society. I would encourage members of the public to co-operate with the Garda. However, in order for these schemes to be effective — like the Minister, I accept that they have been effective — a reasonable level of resources has to be provided.
In regard to more serious crime, there is no room for complacency about the menace of drug trafficking in our cities. While there is evidence that the grave situation of few years ago no longer exists, there is considerable unease among community and public representatives, particularly in the Dublin area, that the problem is on the increase again. In this regard I would warn the Minister that the virtual elimination of customs controls throughout the European Community after 1992 is going to make the detection and prevention of drug trafficking much more difficult for the authorities. I would ask the Minister, in his reply, to state what steps he is taking to ensure that 1992 does not lead to a bonanza for the international drug trade as far as Ireland is concerned.
Another matter of great concern to members of the general public is the question of fraud, especially large scale and systematic fraud. During the past couple of years we have seen a huge increase in serious fraud. These frauds involve millions of pounds. They have taken place in all sorts of companies and enterprises, public companies, private companies, semi-State companies, banks and so on. The law in relation to fraud has not kept pace with changes in society. To all intents and purposes the most up-to-date law we have in relation to fraud is the Larceny Act, 1916. Other legislation designed to deal with fraud goes back to Victorian times, to the 1870s, to the Debtors (Ireland) Act of 1872 and the Falsification of Accounts Act of 1875. Is it any wonder we cannot deal with the problem of white collar crime when our laws date back to 1872, 1875 and 1916? It is about time the Minister woke up and realised that we need a criminal law reform commission to look at these laws and bring them up to date.
I would ask the Minister to state what he is doing in relation to the crime of major fraud. What is he doing to ensure that the Garda Fraud Squad is equipped by way of training and expert personnel to inquire into allegations of fraud, to collect sufficient evidence in relation to allegations of fraud which can be put before a court? Would he say what steps he is taking to see that the prosecuting authorities are equipped to bring cases against people suspected of engaging in large scale fraud? It is an affront to the public to see people getting away with fraud, embezzlement and other types of white collar crime while much less serious offences are dealt with. It is time it was realised that fraud is a serious offence and we must have the laws to deal with it.
As I said at the outset, in relation to these sections of the Criminal Justice Act, 1984, the provisions seem to be working in a satisfactory manner. Section 4, which is the most important of the sections we are dealing with today, provides for a modest increase in the power of the Garda to detain people in custody who are reasonably suspected of having committed a serious crime. It is not generally realised that in no country in the world have the police authorities got less power to detain people for questioning than the Garda in this country. Therefore it is to the credit of the Garda that they have operated this Act and have been reasonably successful in doing so. In this country we have a good balance in terms of the rights of detention. People argue that the period of detention should be longer in some cases, but overall we have struck a good balance and the system seems to be working well. Therefore I see no reason against the renewal of that section. As the Minister said, the section gives the Garda power to detain somebody for up to six hours, extended by another six hours on the authority of a superintendent. This power is obviously a great help to the Garda in their attempt to bring criminals to justice and there is no evidence that it has been abused in any way. Therefore I am satisfied that it should continue in operation.
Section 5 is obviously a safeguard in that it makes it mandatory for the Garda to inform a person detained that he is entitled to consult a solicitor and to have somebody told that he is in custody. Section 6 gives the Garda specific powers in relation to searching, photographing, fingerprinting and taking samples of hair, skin and so on for the purposes of testing. Again, there are safeguards against abuse, and I have no reason to doubt that these safeguards are working or to suspect that these powers are in any way being abused. Sections 8, 9 and 10 are also safeguards in regard to the destruction of records in cases where a person is not charged or is charged and subsequently acquitted.
Sections 15 and 16 make it an offence to remain silent about the origins of stolen property in a person's possession and illegally held firearms and ammunition. These are obviously very necessary powers to the Garda Síochána, especially in view of the greatly increased use of weapons in the course of crime and the great difficulties encountered by the Garda in regard to stolen goods before this section came into being. If a person is not prepared to say from where they got the goods and is suspected of a crime, it is only right that certain inferences be taken from that. Sections 18 and 19 involve slight changes in the rules of evidence, impinging on what is generally known as the right to silence, in that a court of trial may, if it so wishes, draw a certain inference from the refusal of the accused to account when questioned for things found in his possession or for physical matter found on his clothing.
Section 19 enables the court to draw similar inferences, if it wishes, where a person refuses to give any explanation for his presence in an area at the time a crime was committed. It is only right and sensible that the court should have that power to take into account the fact that somebody is not prepared to account for his movements. Sections 18 and 19 are obviously sensible measures from which no innocent person has anything to fear. I am satisfied that sections 4, 5, 6, 8, 9, 10, 15, 16, 18 and 19 of the Criminal Justice Act should continue in operation for another four years.
I support the motion before the House that the sections named and outlined by Deputy Barrett should become a permanent part of our criminal law. Perhaps the Minister could clarify whether there is a provision in the Act that there be a further review in four years' time.
There is no such provision.
If this motion is passed, as it clearly will be, given that there is agreement on it from all sides of the House, these sections will become features in our criminal law until repealed or amended in the future. For that reason today's business is extremely important. It is proper that we take time to consider closely the operation of the sections, the role they have played in helping the Garda combat crime and the extent to which safeguards introduced in the legislation in 1984 have worked to protect the interests of the suspect, a person who is deemed innocent until convicted.
The Minister has given us some very useful and important information with regard to the operation of the sections. I thank him, the staff of the Department and the Commissioner of the Garda Síochána for compiling and making available to us statistical information on the workings of the Act. This information gives us an idea as to how the sections have been used, the scale to which they have been used and the scale to which they have been successful in helping the Garda Síochána in their work. There are obviously gaps in that information, some of which I will comment on later, but nonetheless it has been a useful base.
Perhaps we should not reach the final conclusions we are being asked to reach on these sections today but should allow for another review in four or five years if that is possible. I make that case, and I hope to advance it in the few points I have to make to the Minister this afternoon, in the hope that he might say that the debate we have engaged in today has been a useful exercise and that his Department might consider some amendment of the legislation to enable a further review, if not a debate on these matters, in a few years.
The 1984 legislation had a rather chequered and difficult introduction into the body of law generally and more particularly into the practice of An Garda Síochána and the practice of lawyers working with the legislation. It has not had an easy passage. The debate in the House on the legislation took many months in 1983 and 1984. It involved very long, protracted and late sittings of the House and often heated debate, particularly by the then Opposition Deputies now members of the Government. When reading the reports, I was reminded that the spokesman on Justice for Fianna Fáil at the time, now a constituency colleague of mine, the Minister for Social Welfare, Deputy Woods, was in fact ordered from the House. It would seem to be terribly uncharacteristic of that very fine Deputy and gentleman that he be ordered from the House and it would have to be a very unusual event that would lead to his being asked to leave the House, but it did happen. The debate did not centre on Deputy Woods only. Many Deputies and former Deputies spent considerable time and energy analysing the provisions. There was strong opposition and firm reservations about many of the provisions, most of which we are today being asked not simply to renew but to make permanent in law.
When I say that there are inherent difficulties, it should be remembered that some of the prerequisites of the sections coming into play, for example, the regulations regarding the treatment of persons in custody, were not put in place until May 1987, some three years after the legislation had passed all Stages in the House. The Garda Complaints Board, which was a prerequisite to the sections coming into play, was not established until April, the board not being appointed until April 1987. In fact, all the prerequisite work before the measures, and particularly the detention provisions contained in section 4, could come into operation as provided in the 1984 Act, did not come into effect until 1 July 1987. That resulted in a 1 July 1991 deadline for the House to consider this motion and allow the sections to become permanent in law.
It is also clear that the rules, procedures and regulations for the Garda Síochána had to be substantially altered and new regulations for dealing with suspects in custody, beyond those introduced by the Minister at an administrative level within the Garda Síochána had to be introduced and they could prove to be very cumbersome and difficult. There is no doubt that in the early stages, and perhaps even still today members of the Garda Síochána showed substantial resistance to the operation of these regulations and the many duties imposed on them under the legislation. That resistance, which I have no doubt will diminish in time as people become more accustomed to the workings of these sections, has through a number of years added to the difficult passage of these sections.
Provision is made in section 27 for the recording of interviews and transactions in Garda custody. That has not yet taken place. A question mark is left hanging over the way the regulations would be developed and the way the legislation would operate in that development. Unfortunately, that is a question that will hang over the operation for some time to come. That is regrettable and it should not happen.
Section 30 of the Offences Against the State Act has run in tandem with the provisions of section 4 for the detention of persons. Despite a recommendation of the Criminal Law Reform Committee to deschedulise section 30, the recently published Malicious Damage Act does not carry a proposal from the Minister to do so. The committee made that recommendation very strongly, and it is a matter that I shall come back to.
All of those factors have added to a not easy passage into law of the provisions of section 4 and other measures that are now being considered. In short, perhaps the House is being asked to make a final decision after too short a juncture from the workings of this legislation, although four years might seem to be a long time.
The Minister gave statistics and information with regard to the operation of the legislation. By and large, they are very welcome and paint a good picture. I am concerned that because of the hiccups and inception problems we are not getting a true picture of the way the Act would operate statistically and otherwise when in full and free flight.
It should also be recalled that the House took a long time to reach agreement on the provisions and to pass the legislation into law. The legislation makes profound changes to our law and the House should now be reminded of those changes.
Provision is made for the potential detention of persons for upwards of 12 hours, provided the period of six hours is renewed, coupled with other provisions with regard to the breaking off of interviews at a certain time of the day — by and large, midnight, depending on the urgency of the incident, the time a person had been apprehended and taken to the Garda station and depending on other factors — and it has been illustrated that detention under this legislation can range over two days at the outside. While we say that the measure is not so extraordinary and the Minister talks about the number of people who have been in custoday for three hours or less, that is the kind of application, in the widest operation of the legislation, for which we must have the most consideration. A person can be detained for extraordinarily long periods when they are innocent of any suspicion other than that of the garda — persons who are innocent in the eyes of the law.
The other extraordinary provision of the legislation is the introduction of an onus on a detained person to answer questions and to suffer the consequences of failing to answer those questions at any subsequent trial. I accept that there was previously provision under section 52 of the 1939 Offences Against the State Act that a person was required to account for his movements. For all practical purposes that measure had been abandoned since the early 1960s and, as I understand it, there has been no prosecution and no conviction under it since the mid-1960s because of a widespread view that it is in breach of the European Convention on Human Rights, if not our own Constitution. For the first time we introduced in law an obligation on persons to account for property, movements and other unusual circumstances regarding their apprehension and provided that failure to do so would reflect on their position at any subsequent trial.
All that must be remembered as we are today asked to make these unusual and extraordinary provisions permanent in our code of law. This has to be put against the background that the legislation was debated at a time when, for the first time ever, we began to find at Government level, in this House and elsewhere, admissions that during the mid-1970s and into the late 1970s there existed within the Garda Síochána a group of people who were operating outside the law, known colloquially as "the heavy gang". The Government must be reminded that in 1976, coming up to the 1977 elections, they gave a firm undertaking that there would be a judicial inquiry into the facts surrounding the operation of that group of men within the Garda Síochána who were operating outside of the law, and to date that has not happened. That is a regrettable fact that must be recorded in any debate dealing with the detention of suspects and the rights of suspects in Garda custody.
The people with the highest profile in that sad history of the Garda Síochána, Mr. Kelly and Mr. Breathnach, one subsequently vindicated and the other still seeking justice before the courts, are still floundering around seeking an explanation as to why they were brought before the courts and convicted in the circumstances in which they were. It is particularly regrettable when we see, in the context of the detention of persons in England, in the Guildford Four, Birmingham Six and Maguire cases, fulsome efforts on the part of the Government there to see justice done and condemnation of the Birmingham, West Midlands and Guildford police when they were found wanting. However, little or no follow-up to that commitment of 1976 has been carried out by Fianna Fáil when admissions began to emerge that we had less than satisfactory practices here ourselves. I would join with Amnesty International in reminding the Minister of their commitment of that period, that there has never been a proper investigation of that black and sad period of the Garda Síochána's history and that there should be a full and proper investigation into what went wrong and why. I accept that this Government were not responsible for the creation of that unit. Nevertheless they gave a commitment and it should now be honoured. I acknowledge that the late Judge Barra Ó Briain sat in committee to look at certain aspects of the rights of accused persons, but that committee did not and could not have gone anywhere near meeting the commitments of Fianna Fáil in 1976 to fully and thoroughly investigate these matters. This is all the more worrying when one has regard to the extraordinary provisions of section 7 (3) of the 1984 Act. That provision basically says that where a member of the Garda Síochána fails to comply with the regulations introduced in 1976 or fails to comply with any other standards required of them under the Act, then such failures of themselves "will not render that person liable to any criminal or civil proceedings or of itself affect the lawfulness of the custody of the detained person or the admissibility in evidence of any statement by him". Whilst we demand all of these standards which are in place since 1977, there is, nevertheless, this extraordinary provision that any breach of the regulations, any invasion of the rights of the accused in the context of the safeguards that are necessarily there in the law, will not render the officer responsible liable for criminal or civil prosecution and will not taint the legality of admissibility of the statement.
I mention that because when, as we are doing today, we are putting these provisions permanently into our corpus of law, we should remind ourselves of the extraordinary effect of the provision on the one hand and the need for good safeguards and vigilance on the part of those in this House who are providing for this law. That is why I make my case that we should be looking at this legislation on an ongoing, intermittent basis and not simply closing a chapter in this debate today without coming back to it in the future.
The matters we must look at have been pointed out by the Minister. There is a number of steps which require to be taken by the Government before these sections become part of our law. The first was to establish an effective Garda complaints board. This was a quid pro quo of the legislation. If we were to give rights to the Garda Síochána to detain suspects for certain periods of time then there should be in place an effective Garda complaints investigation tribunal. If we had never brought in section 4 and other related sections it would have been proper to have such a board. However the history of the board, once established, has been one of sad neglect on the part of the Government. The Minister says that progress is being made, that the backlog is dwindling and it is now down to between 750 and 500 cases. That is a remarkable state of affairs. Can the board, even today, take on any new case? I understand that for nearly two years now the board has simply not taken any new cases for investigation.
From a date in or about mid-1989 we have, effectively, had no Garda complaints board. What we have today is a board investigating life before mid-1989. My dates may not be entirely accurate and I may not have up-to-the-minute information but the fact remains that the Garda Complaints Board is grossly under-staffed, very poorly resourced and is not in a position to effectively deal with the backlog which stands at about 500 cases. In other words, about 500 members of the public have gone to this board looking for redress and have to wait inordinate periods of time to get an answer to their complaint. On the other hand, there is a minimum of 500, if not many more, members of the Garda Síochána hanging about with question marks over their heads as to their status, their good name and their future in the Garda Síochána. I have met so many members of the Garda Síochána over the years who have been at the butt end of poorly investigated and long-delayed investigations of this board and who have simply lost heart and interest in their jobs, saying that if this is the way they are treated in the course of their duty, why should they bother at all. Like so many other unfortunate, cynical servants of the State they sit behind their desks, keep their heads down and take no real interest in their duties.
The Minister's neglect has led to a lack of confidence in the board at two levels, first among the public. Here the figures need to be explained further. The Minister says it is typical of similar situations in other European countries, that there is a bottoming out. I would like to know to what extent that is due to people saying that there is no point in going to the Garda Complaints Board because they cannot deal effectively or quickly with complaints and that because of the delays justice will be denied. On the other hand, there are members of the Garda Síochána who have totally lost confidence in the ability of the process to vindicate their good name and assure their position in the Garda Síochána quickly and effectively.
I regret that the first prerequisite for the permanent establishment of this legislation in our law has been so shabbily dealt with by the Government and I hope the matter will be rectified without further delay. The Minister should stop playing around with statistics in this area and recognise that there is a need for emergency, short term action to be taken so that every outstanding complaint is dealt with within the year if not sooner. He should put in place the necessary resources to do that so that the board can reopen for new cases and deal effectively, on a current basis, with the work they have been asked to do.
The final word I have to say on this is that the reports of the board make very sad and frustrating reading for the people who give up their valuable time and energy to do this work.
The second prerequisite of the legislation or the obligation on the Minister to put in place regulations for the treatment of suspects once detained was a good and necessary arrangement, and the regulations which were eventually drafted and agreed by this House are effective and comprehensive. However, there has been a substantial amount of resistance to the cumbersome procedures involved under the regulations. The Minister should look again at streamlining processes whereby members of the Garda Síochána are required to supervise and to fill in forms when a person is detained. Where a person is reasonably suspected of having committed a crime he should be taken to the station, detained for the shortest period of time required and questioned, and charged if necessary, or otherwise released. However, in a system where there is a lot of cumbersome form filling there is a resistance from the members of the Garda Síochána to rely upon it, particularly where there is in tandem a much more straightforward, draconian and wide ranging provision under section 30 of the Offences Against the State Act. We must deschedule for Offences Against the State Act purposes malicious damage and other offences which should never be considered under that extraordinary legislation introduced during the period of the Second World War.
While the regulations provide for the right of the accused to have access to a solicitor and the right to consult with a lawyer while detained, there is not any provision in the legal aid scheme to pay lawyers so retained through the criminal legal aid scheme. Many people are unable to afford the services of lawyers once they come before the District Court to be charged and tried. If the Minister would make them available to us, the statistics in that regard would show that upwards of 90 per cent or thereabouts of persons tried before the District Courts would be afforded legal aid in the retention of lawyers for the purposes of defending themselves. This reflects the by and large very poor background from which most people who come before our criminal courts originate. That poverty and inability to pay extends to the time that a person is in the Garda station and it is somewhat disingenuous to recognise through the pronouncements of the courts that people have the right of access to a lawyer while at the same time not providing the means whereby they can afford to retain a lawyer.
This matter has been discussed in the Law Society, the Criminal Lawyers Association and the Department of Justice for many years. It should now be brought to a conclusion. Some years ago the Department opened up discussions with the lawyers practising in this area in Dublin with regard to establishing at very minimal cost to the Department a duty solicitors' scheme whereby a solicitor or solicitors in Dublin and in other urban areas would be called upon on a roster basis at short notice to attend, so that the provisions of the Act could not be used as a device to frustrate the Garda seeking to proceed with a speedy inquiry in relation to a detained person; but the Department of Justice have simply refused to open up meaningful discussions in this area. They are not even prepared to consider the paltry sum necessary to establish such a duty solicitors' scheme on a permanent basis. Would the Minister of State deal with that matter and put in place a provision under the criminal legal aid scheme that allows people unable to afford to pay for a lawyer the means whereby they can do so, so that their rights in this regard can fully and effectively be protected?
The next item with regard to the treatment of offenders in custody is this issue of the video tape recording of proceedings. This was provided for in the 1984 legislation. It was clearly the intention of the House that it should be in place and that the only delay in doing so should be for the technical investigation of the possibility of doing it. The Minister's explanation for not putting this system in place is utterly unacceptable. The notion of video recording and audio tape recording interviews is considered something of another era as far as the European police forces are concerned. In Britain it has been in practice for decades rather than for years and the Minister's suggestion that there are other technological lessons to be learned, as a reason for the delay in this matter, is totally unacceptable.
When Mr. Justice Martin was appointed in the wake of the Guildford case to look at the issue of ensuring that a Guildford type situation would not be repeated in our jurisdiction, having suffered that type of thing during the black period of the "heavy gang" era of the seventies, he quite correctly identified that, potentially, there was as much protection available to the Garda Síochána against unwarranted complaints as to accused persons under interrogation in a detention centre or a Garda station. This visual and audio record would show a clear picture of what transpired and would clearly set at nought any unwarranted accusation against a member of the Garda Síochána during the course of the interrogation. It is an important provision, not just for the accused but for the Garda Síochána. It is incumbent on the Minister to move beyond this prevarication and the introduction since 1984 of spurious and specious reasons why the video or audio recording will not be introduced. I understand from the publication of the Martin Committee report that it was to be introduced then on a pilot basis in a number of Garda stations in Dublin and elsewhere. I learned today that that has not happened and that the Minister is borrowing on some new technological evidence or facts that are emerging from experience abroad to delay it yet further. The Minister will not be congratulated by anyone on either side of the issue for delaying on this matter.
The figures published by the Minister indicate that there has been a drop in the number of complaints about physical abuse against members of the Garda Síochána coming before the Garda Complaints Board. That is welcome. Nonethe less, I am worried that when we begin to fully operate the forensic evidence legislation, abuses will become much more sophisticated and more clever. I hope that will not happen.
I have often wondered why a pattern of complaints has not emerged in relation to clothes, personal items and other samples being interfered with by members of the Garda Síochána. I could never understand why the heavy gang used the bully boy tactics they did during their period of existence in the Garda Síochána, why they had to go to the extent where they have been exposed in abusing people and why they did not just simply fabricate the statements in another room and claim, if they were going to lie about things, that that was the statement made and signed. Why not just simply take the clothes and the sample of the suspect to another room out of sight of the accused and rub the firearm in them to show that it may have been in close proximity? Who is to know? The only way we will ever ensure safeguards within a Garda station is by a video and audio record of what goes on in it. It is the only way to ensure continued confidence in the Garda Síochána, who do a very fine job on our behalf in combating crime. It would ensure that there will never again be recourse to unwarranted and unfair accusations being levelled against them for practices that might go on within a station. The Minister should not delay in dealing with this matter.
Malicious damage must now be taken from the schedule of offences to be dealt with under section 30, as recommended by the Law Reform Commission. They point out that, given the operation of section 4 as part of our permanent law, the Minister and the Garda have no need to maintain malicious damage within that order of law. One of the facts that must be looked at in the statistics—statistics which the Minister has not made available to us, but which I obtained in answers to parliamentary questions in the past — is that there has not been a significant fall-off in the use of section 30 as the use of section 4 has increased. It seems that a significant body of members in the Garda Síochána much prefer to work the straightforward section 30 detention provisions in preference to what the legislature prefer and expect them to do. It must be remembered that where there is a house break-in — probably the most prevalent crime — or when a motor car is interfered with there is an element of malicious damage and, as a result, there is an opportunity for the Garda Síochána to detain a person for up to 48 hours by reason of the inclusion of malicious damage under the schedule. That should be dealt with and changed as the Law Reform Commission report recommends.
The Minister in his speech outlined in great detail the legislative programme which has been undertaken and proposed by the Minister for Justice in combating crime generally, which is persistent and ongoing. One of the major omissions from that legislative programme — and I call on the Minister to tell us in clear terms when it will come before us — is the vehicle whereby all the new changes in our criminal law can be brought speedily and conveniently into evidence before our courts, that is, a Criminal Evidence Act. There is no doubt that the Forensic Evidence Act is not in operation because of the Criminal Evidence Act. There is also no doubt that many other areas of law, that dealing with fraud in particular, are frustrated and held up because we do not have a modern Criminal Evidence Act which would deal with computerisation, microfilm records and all the receptions of evidence by way of certificate or a simple statement of evidence by people in the technical or exhibit preservation areas, which is so common in all the other criminal law jurisdictions in neighbouring countries and indeed throughout Europe. We are way behind and very much at fault for not updating on a regular basis our criminal evidence law.
Much of the Minister's legislative programme is totally and utterly frustrated and is not being implemented, used or relied upon by our courts because our criminal evidence law is so outdated. That is an urgent and important matter. The figures which the Minister gave reflect this. He indicated that a very small percentage of people detained are required to give their fingerprints, to surrender personal clothing or to subject themselves to other forensic testing— the figure is as low as 5 per cent in regard to the latter and just over 20 per cent in respect of fingerprints. The reason for that is not because of reluctance on the part of the Garda Síochána to use their powers or that section 4 is innocent little legislation. The fact is that there is little point in relying on these forensic and technical devices because the criminal evidence law does not facilitate the easy reception of these technical matters to our trials before juries at hearings in the District Court and elsewhere.
As long as that is the case and as long as forensic and technical evidence is not easily accessible and available in our courts, we will have a preponderance of interrogation centred criminal investigations, which clearly is the picture coming from the statistics which the Minister read in regard to detentions. The fact that so many people are not technically examined in relation to fingerprints or other traces or for the reception of their clothes or other samples, indicates that they are being primarily detained for questioning purposes, which is never a happy development. The police investigation must always be pushed in the direction of investigation in the field and in the technical pursuit of evidence. We should never have the Guilford, Birmingham or the other type of investigations which led to such abuse abroad, and indeed here during the black period of the heavy gang to which I referred, of investigation alone in a Garda station room by members of the Garda Síochána in pursuit of an admission of guilt and nothing more.
The celebrated case of the Sallins mail train robbery which involved what was described at the time as the single most audacious crime in the history of the State was solved and presented to the Special Criminal Court subsequently on one piece of evidence — the statements of alleged admissions by the suspects in Garda stations. Not one jot of evidence outside the Garda station at the scene of the crime or elsewhere, was presented. The convictions stood or fell on admissions, and indeed two of them subsequently fell for that reason.
Crime is a problem, as has been illustrated and experienced by all of us on a daily basis. It will continue to be an unfortunate feature of our society as long as it is based on greed and when so many people are unemployed and living in poverty. On the other hand, there is a national industry which exists on crime fighting institutions. Crime will long be with us and the extent to which the sections before the House for renewal are helping the Garda Síochána in the battle against that crime and its containment are welcome. For those reasons The Workers' Party will not oppose the motion for their renewal. However, this House and all those concerned about the rights of innocent persons must maintain vigilance and ensure that there is never a return to abuses which we, unfortunately, experienced here and abroad. We must ensure that all persons detained as suspects and as innocent persons are afforded the full protections and their rights under the law.
The Fine Gael Party fully support the Criminal Justice Act and the motion before the House by the Minister of State at the Department of Justice. It is important that the Act should continue and that the motion is accepted. I am sure it will be accepted by all sides of the House.
The specific sections referred to are highly complex and important. Nevertheless, they will enable the Garda Síochána to combat crime, a task which they have great difficulty in tackling and overcoming. This House must do everything in its power to ensure that crime is tackled and reduced. That is a very difficult task. The Fine Gael Party believe that this is a reasonable motion, one that deserves the support of all parties.
Debate adjourned.