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Dáil Éireann díospóireacht -
Tuesday, 7 Mar 2000

Vol. 515 No. 6

Written Answers. - Criminal Justice System.

Brendan Howlin


51 Mr. Howlin asked the Minister for Justice, Equality and Law Reform the proposals, if any, he has for an extension of the period of detention for persons in custody and further restrictions of the right to silence in regard to his recent speech at the Garda Training College in Templemore; the additional safeguards, if any, he will introduce for people in custody to counterbalance these additional powers; and if he will make a statement on the matter. [6828/00]

The Deputy is referring to my recent announcement that the Government has approved the drafting of a criminal justice Bill to improve generally the criminal justice system by giving additional powers to the Garda Síochána and by removing certain anomalies from criminal legislation.

The background to the proposals is that in November 1997, the report of the Steering Group on the Efficiency and Effectiveness of the Garda Síochána, commonly referred to as the Garda SMI report, was published. While the report of the steering group dealt mostly with the structures and functions of the Garda Síochána, it also recommended certain changes in criminal law to enhance Garda efficiency and effectiveness.

The steering group acknowledged that the implications of their proposals would need to be further assessed in the light of the provisions of the Constitution and the European Convention on Human Rights. Accordingly, I appointed an expert group, under the chairmanship of Mr. Eamon Leahy, SC, with a specific mandate to consider the changes recommended in the context of Constitutional and European Convention on Human Rights implications, as well as the need to maintain the critical balance between the rights of the individual and the common good. The expert group included legal practitioners, representatives from the Offices of the Attorney General and the Director of Public Prosecutions, the Deputy Commissioner – operations – of An Garda Síochána and officials from my Department. The group made its report at the end of July 1998. In general, the expert group supported the general thrust of most of the steering group's recommendations but made suggestions on how the recommendations could be developed in a way which respected that critical balance between the rights of the individual and the common good.
As I have already indicated, I have recently secured Government approval for the drafting of a Bill based on the expert group report, and the detailed provisions of the Bill will now be developed during the drafting of the Bill in the Office of the Parliamentary Draftsman. While the House will appreciate that I am not in a position to give full details of my proposals until such time as they are published following approval by the Government, I can say that in relation to the specific matters mentioned in the Deputy's question my proposals are largely based on the expert group's report.
In relation to periods of detention for persons in custody, the Deputy will be aware that there are a number of statutory provisions which provide for the detention of suspects viz. section 30 of the Offences against the State Act, 1939, as amended by section 10 of the Offences against the State (Amendment) Act, 1998 which applies to all offences contemplated by the Offences against the State legislation, section 4 of the Criminal Justice Act, 1984 which applies to arrestable offences, offences punishable by five years imprisonment or more and section 2 of the Criminal Justice (Drug Trafficking) Act, 1996, which applies to drug trafficking offences. These differing provisions can create certain anomalies. For example, a person suspected of murder can be detained under section 4 of the Criminal Justice Act for up to 12 hours, but if there is evidence of the use of a firearm in the murder that person can be detained for up to 72 hours under section 30 of the Offences Against the State Act, 1939.
The Steering Group on the Effectiveness and Efficiency of An Garda Síochána considered the period of detention permitted under the 1984 Act to be inadequate for the proper investigation of certain serious or complex offences and had recommended that the 1984 Act be amended to provide for a total of 96 hours detention. The expert group, however, recommended that a provision permitting detention for up to 48 hours would be sufficient and should only apply in respect of the more serious offences. I am proposing to accept the expert group's recommendation on the basis that it will apply only to the most serious category of offences including for example, murder or rape.
In relation to further restrictions to the right to silence, the expert group recommended that a provision along the lines of section 7 of the Criminal Justice (Drug Trafficking) Act, 1996 should be extended to all arrestable offences. The steering group had suggested a somewhat wider application. Section 7 of the 1996 Act, and section 5 of the Offences against the State (Amendment) Act, 1998, provide that adverse inferences can be drawn from an accused's decision, when being questioned or charged by the gardaí in relation to a drug trafficking offence, or an offence contemplated by the offences against the State legislation, to remain silent and not mention facts which he or she later relies on at trial. Such adverse inferences could corroborate other evidence, but would not alone be sufficient for a conviction. While I accept the thrust of the expert group's recommendation, I am proposing also in this case to limit its application to the most serious category of offences.
In relation to further safeguards for persons in custody, these proposals are being put forward against the background of Government approval in July 1999 for the introduction of a nationwide scheme of electronic recording of Garda questioning of detained persons. The national scheme will provide for the mandatory audio-video recording of interviews with persons detained in Garda custody under the detention provisions of the Criminal Justice Act, 1984; the Offences against the State Act, 1939, as amended; the Criminal Justice (Drug Trafficking) Act, 1996; and this Bill, when enacted. I expect a significant number of stations will be equipped for electronic recording of interviews before the end of this year.
I should point out that the 1987 regulations governing treatment of persons in custody in Garda stations will, of course, be applied to the detention provisions of the Bill when, enacted. In addition, I propose to submit proposals to Government for improvements in the operation of the statutory Garda Síochána complaints scheme.