Dhein an tAire réamhshampla nua nuair a thosaigh sé ag caint as Gaeilge le linn an oráid Dara Céime don Bhille um Cheartas Coiriúil 2004 sa Dáil Dé Máirt. Ba chóir dúinn ár gcomhghairdeachas a thabhairt don Aire as ucht an tionscnaimh seo. Is é sin an t-aon chomhghairdeachas a bhfuil mé ábalta a thairiscint dó maidir leis an mBille seo.
Criminal Justice Bill 2004: Second Stage (Resumed).
Níl dabht ar bith faoi sin.
Fiú ó thaobh úsáid na Gaeilge san óráid a thug sé don Teach seo, scaip sé an scéal as Béarla roimh ré go dtí na meáin cumarsáide mar is gnáth dó a dhéanamh.
Tá mé an-deabhéasach leis na meáin.
The Acting Chairman will gather from my remarks that I see major deficiencies in this Bill, despite the fact that the Minister introduced it as Gaeilge. At the same time, I congratulate him on the manner in which he did so.
It was in Mandarin Irish.
It is the only congratulations I can give him. My view on this Criminal Justice Bill is that the Minister should withdraw it at this stage. Essentially, the Minister has attempted to circumvent the legislative process. He is not doing so because of his speech as Gaeilge, but rather because of his new interpretation of 11 September 2001. The Minister announced in his speech that he has major plans to amend heavily the Bill as initiated. I went through his speech and I found he had nine bullet points that were included in the Bill along with a further 11 bullet points that are currently only in his mind. Yet we are supposed to debate these issues today, despite the fact that they are not included in the Bill. Quite frankly, that is an abuse of the legislative process.
What is new about that?
We will end up with a very different Bill. It is farcical to conduct a Second Stage debate in the Dáil on this Bill when the Minister knows full well that the Bill that eventually emerges will, in effect, be a new Bill. I can only debate on what is before the House. I generally support the thrust of the Bill as published. However, I cannot give the Minister a blank cheque on those issues which are only in his mind at the moment. Only half the picture is before us. Apart from the abuse of the legislative process, this represents the fruits of the Minister's poor judgment. When he issued the Bill last July, he pre-empted the findings of the report of the Joint Committee on Justice, Equality, Defence and Women's Rights which was published ten days later. That report dealt with one of the issues that the Minister covers in his speech, which is the question of the criminalisation of gang membership.
I am in favour of measures which will enable a more effective fight against crime. I have always operated on the basic principle ofsalus populi supremus est lex. We must protect the safety of the people. In conferring additional and wide-ranging powers, we must ensure at all times that a balance is struck between what is required and what does not unjustifiably encroach on a person’s constitutional rights. In this context, I am referring to some of the major issues that are included in the present part of the Bill before the House.
Let us examine the proposal in section 5 which will allow a senior garda to issue a search warrant in "circumstances of urgency". A mechanism to issue without judicial supervision a warrant to search a person's home raises serious questions involving the Constitution and the European Convention on Human Rights. I do not say I am totally opposed to the provision but we must consider carefully what we are doing.
Similar questions arise about the taking of bodily samples by force and the extension of periods of detention without a requirement to bring a person before a judicial authority. We must carefully thread our way before we put such powers on the Statute Book. We must first ensure as far as possible that proper safeguards are in place.
As a countryman, I turn next to a matter which the Minister as a townie might not fully appreciate. Section 30 deals with the storage of firearms. A major reaction has been prompted in rural areas by the fact that the matter is being addressed in the context of a criminal justice Bill. Someone from within the Pale, like the Minister, may say the reaction is irrational.
I am from outside the Pale and closer to shotguns than the Deputy thinks.
The Minister will be much closer to it when I am finished. I do not for a moment suggest an ordinary, decent, licensed gun holder would in any way countenance the incident to which the Minister refers. I record bluntly that I absolutely condemn it.
I suggest strongly that the Minister fails to realise in section 30 that ordinary, decent, licensed gun holders are not the problem. The rise in the incidence of the discharging of firearms revealed by Garda statistics is in no way attributable to licensed gun holders. Such people have a long record of responsibility and they take the storage of their weapons seriously. While I accept the need to set standards for the storage of weapons, we must consider the legislative context. Provisions in this area go back to the 1925 Act, which I agree is in need of major reform. The Minister himself touched on some of these issues in his speech, but there are others, including the storage of tourists' guns. I have seen tourists come to my area with guns in the boots of their cars. While we are providing in a criminal justice Bill for the security of the firearms of decent, law-abiding citizens, we do not seem to have any provision for tourists' guns. This is just one example. There are also the questions of the application procedure and the medical history of an applicant, an issue which arose before the Abbeylara tribunal. I want to see a separate firearms Bill. There is more than adequate reason to provide one to update and reform existing provisions.
There are three principal issues arising from the Bill's content. While I see no great problem with section 4, the provisions of which relate to the preservation of crime scenes, perhaps the Minister will explain why it is necessary. What is it about the proposed approach in section 4 that distinguishes it from existing practice? I have no problem apart from a degree of curiosity about why the matter is being dealt with here.
As I said, section 5 creates issues we must consider carefully. It permits superintendents and higher ranking officers to issue search warrants in circumstances of urgency. The provision raises three issues. The premises to which search warrants apply are mainly houses and businesses. A person's home enjoys special status under the Constitution on the basis that a person's home is considered his or her castle. Article 45 provides that the dwelling of every person is inviolable and shall not be forcibly entered save in accordance with law. While I appreciate that we are providing for such law, we have traditionally ensured that where a person's home must be invaded and searched, a warrant must be issued by judicial authority.
We must also ask what will constitute circumstances of urgency. It is a crucial question. Historically, judges have shown themselves to be available in emergencies when required. Who will decide when circumstances of urgency may be deemed to have arisen? Will there be an objective view? Nothing is set out in the Bill to prescribe what shall constitute an emergency. Who will come to a judgment on the matter? While he touched on it in his speech, the Minister has not dealt with the Dylan Creaven case and the practical problems which have arisen for gardaí in obtaining warrants due to the restrictive decision of the Supreme Court. If my interpretation is correct, gardaí must approach the District Court judge assigned to the district in which a warrant is being issued. That particular judge may not be available.
I would like to see the matter examined in more detail and the question asked whether we should provide for some form of judicial supervision. Perhaps we could involve the 7,000 peace commissioners throughout the country who have worked over the years without recognition or reward. Could we use modern technology to facilitate judicial intervention? Perhaps a requirement could be introduced whereby a superintendent who feels he has to move quickly or as a matter of urgency at 1 a.m. must send an e-mail or fax to a judge which could be followed up in the morning. I have been told by a Garda superintendent that such circumstances can arise. I want to see avenues explored to establish whether we can retain in some fashion judicial supervision of the issue of warrants.
The extension of the power of gardaí to detain a person without charge must be finely balanced. The period of detention is being increased from 12 to 24 hours. I am aware from my discussions with gardaí that they feel on occasion they do not have enough time to question individuals. While they have a job to do, we must be mindful that we are interfering with the right of the individual to be at liberty and, in a way, with the presumption of innocence. We must be very careful. A balance must be struck to ensure the circumstances in which people are detained without charge remain limited.
The power to obtain by force swabs from parts of the body must also be examined. I was struck by the observations of the Human Rights Commission on the matter. The commission has a job to do and while it leans over backwards to talk about individual rights, it is a necessary body which we are fortunate to have. The commission is in a position to point out that there is another side to the coin and an alternative consideration to the need of those who want to ensure that every possible power is available to track down criminals and bring them to justice.
While, in general, the Human Rights Commission urges us to proceed cautiously with regard to these measures, it also clearly indicates that if such measures are necessary, they should be surrounded by major safeguards. That is the main point I take from the commission's observations. It states that gardaí should not proceed with non-intimate bodily samples taken by force unless they can justify it and that it must relate to the seriousness of the circumstances and the degree of the suspect's alleged participation, as well as the age, physical and mental health and background of the person involved. There could be a difference if one was talking about a grandmother as opposed to a young man in his twenties. Taking these two extreme cases into account, different views might arise about the appropriateness of the measures proposed.
The Human Rights Commission also suggests safeguards in terms of how such samples should be taken. It raises the question of reasonable privacy and who should and should not be present. This could particularly apply with regard to a child or young person who could be accompanied by a guardian or parent. It also mentions the number of gardaí who should be present and whether it might be useful to record the process on video. It raises the issue of having an interpreter present when dealing with somebody not fully conversant or able to deal with matters as Béarla nó as Gaeilge. We can tease out these issues, but it is no harm to put down markers for matters about which we need to be careful.
Returning to the issue of firearms legislation, I will press the Minister with regard to licensed gun-holders here, of which there are approximately 200,000. These generally come from a section of the population who would probably have been referred to as yeoman stock or tenant farmers in old British times. They have a very good record with regard to crime. There are issues in terms of facilities and training and how best to train members of the family. It has been suggested that there should be provision for training facilities so that they would be able to handle their guns properly.
If there is a refusal to grant a licence, should the person know the grounds for the refusal? There are problems relating to this, because sometimes the refusal could be based on soft intelligence. It might not be in the best interests of security to make such a disclosure. Not everybody applying for such a licence would fit into the category I described.
Should there be a time limit during which the application is considered? Should medical history be a factor? There is also a question regarding proper facilities for storage of guns. There are problems in section 30, which is a bit ambiguous. It refers to "secure accommodation". Are we speaking of a secure house or a secure, properly installed gun safe within the house? The phraseology of section 30 is itself ambiguous.
Tourists are not required to safely store their guns. Regarding the question of an appeal, it seems wrong in this day and age that there is no right of appeal if somebody is refused a gun licence. There is a certain inconsistency in the present administration of the system. That is understandable because every superintendent currently operates in isolation.
This all leads to my main point regarding the firearms issue and section 30. We should have separate legislation covering the issue in the Bill and all these other issues, some of which were touched on by the Minister in his speech. He should take the issue off the table in his closing speech. On behalf of the Opposition, I spoke to many of these people and am quite prepared to put forward views as to how we should have a modern, reformed up to date firearms Bill to cover these and other related issues.
There were bullet points in the Minister's speech relating to his innermost thoughts about what should be added to the Bill. There was a greater number of these than bullet points relating to what is in the Bill. I can only touch on them very briefly, because it is pretty outrageous that we are here in the national Parliament debating a Criminal Justice Bill relating to quite serious issues that may or may not be in the Bill by the time it leaves the House and all we have is a one-liner which constitutes the Minister's thoughts on a particular issue.
The first point refers to the Minister considering a provision to deal with participation in organised criminal gangs. At face value, this is something we should consider. We considered it in the Joint Committee on Justice, Equality, Defence and Women's Rights, and it gave rise to much debate. I am not sure what is in the Minister's mind. I am trying to read between the words and thoughts, not the lines. Is he suggesting we should criminalise membership of a criminal gang? The committee considered that issue for quite a long time. It looked at the situation in Canada where there are precedents for such legislation. We also received submissions from various bodies, including the Bar Council, which pointed to a variety of difficulties associated with the matter. The Director of Public Prosecutions set out the technical difficulties with regard to any such offence.
Lo and behold, rereading the report I find that the Minister for Justice, Equality and Law Reform, Deputy McDowell, drew the committee's attention to the difficulties presented by any attempt to outlaw membership a criminal gang. If the Minister has a formula to deal with the issue, despite his reservations at that time, Parliament is entitled to see it in order to debate the matter. I leave the door open. I see a huge problem, in practical terms, of proving what is a gang. It might be a group of people with no formalised rules and with no continuing existence, even if one considers the current Provisional IRA which has been around for a while, since 1969. There are things one can point to with——
The Provisional IRA is an unlawful organisation.
I accept that. It is an unlawful organisation, but it has been around for a while, approximately 36 years, even though it claims a longer heritage. How does one deal with a gang that came together a year or two ago? How would one prove membership of a group with no formal association, no meetings and no minutes?
Both I and my colleagues in opposition are quite open to trying to get provisions on the Statute Book to help us in the fight against crime. At the very minimum, when we are debating a Criminal Justice Bill, we need to have a little more than the Minister's thoughts expressed in a one-liner in his speech. The issue needs to be teased out and debated fully before we can give it our approval or propose amendments to improve the legislation. Recently, two Government amendments were tabled on Report Stage of the Proceeds of Crime Bill. In principle, I agreed with both amendments but I had no opportunity of teasing them out. That is not the way to deal with legislation.
In the time remaining, I will have to deal with another ten points concerning the Minister's thoughts on what might be included in the Bill. In general, I am prepared to look constructively at a provision to strengthen sentencing for drug trafficking and firearms offences. However, those matters take us into the major issue of mandatory sentencing and its possible interference in judicial independence. It also has practical implications given the possible reluctance of the Judiciary to impose such mandatory sentences.
The Deputy is moving a long way from his predecessor's view on mandatory sentences. I was faced with demands of the most extraordinary kind for mandatory sentences.
As somebody who practices in the courts and having looked at this issue over a period of time, I would not rush into mandatory sentences. There can be a downside to them in practical terms. If one looks at their impact in other countries, I do not believe there is any proof available that they have led to a reduction in crime. I am open to discussing the issue but it would require detailed debate, while I only have a one-line remark in the Minister's speech. There is nothing on this matter in the Bill.
I would certainly be in favour of introducing an offence of supplying drugs to prisoners if I knew exactly what the Minister had in mind. I strongly proposed electronic tagging but the issues remain as to how it will be done and the safeguards that might be necessary. We need to see the detailed provisions on that subject.
The Minister's speech also referred to new provisions to deal with anti-social behaviour but all I know about this proposal is what appeared in the Minister's usual media outlets where he made some references to the possibility of introducing anti-social behaviour orders. We cannot debate such an issue merely on the basis of a single line in the Minister's speech. The question of anti-social behaviour is coming increasingly to the forefront due to such problems in our society.
I wish I had much more time to debate these issues. I would like to see exactly what the Minister has in mind as regards this criminal justice legislation but he had not afforded us the opportunity of having a full debate on it. Tá sé sóiléir nach bhfuilimid ach ag déileáil le cuid den Bhille ag an phointe seo. Ní mór don Aire sonraí iomlán a fhóilsiú sa Bhille seachas a bheith ag cur leis an t-am ar fad le forálacha suntasaigh nua. An tslí is fearr chun seo a dhéanamh ná an Bille lochtach seo a tharraingt siar agus Bille nua a scaipeadh ina mbeidh na moltaí atá ar intinn an Aire sonraithe.
Ní bheimid in ann díospóireacht ceart agus cuí a dhéanamh ar na ceisteanna tábhachtacha seo go dtí go bhfuil Bille nua curtha faoi bhráid na Dála.
Go raibh maith agat.
Cuirim fáilte roimh an Aire innu freisin ach ní chuirim fáilte roimh an Bhille seo. Bille tábhachtach atá ann ach tá baraíocht moltaí istigh ann atá contúirteach i dtaobh cearta an tsaoránaigh. Mar shampla, is féidir duine a cheistiú i staisiún Gharda go ceann 24 uair. Beidh barántás cuardaíochta ar fáil ag na gardaí ó ghardaí eile agus beidh siad in ann sampla DNA a ghlacadh gan cead ón duine.
Tá an tAire tar éis dúinn liosta leasuithe don Bhille nach bhfuil baint ar bith acu leis an Bhille féin. Níl a fhios againn téacs nó substaint na leasuithe seo atá geallta agus mar sin ní bheidh seans againne á bplé go dtí Céim an Choiste. Ní sin an dóigh cheart reachtaíocht a phlé san Oireachtas, mar a deirim i gconaí. The Minister does it the wrong way.
I do it.
I must say that when the Minister does it, he does it. Some 22 pages in 45 minutes, as Gaeilge, was certainly over and above the call of duty.
A Bill that is likely to contain amendments which will be in excess of the substance of the original text is not the way to do business. The Minister has a penchant for introducing a Bill and then producing a range of ancillary and miscellaneous provisions, some of which are related while others are not. In that way, the initial Bill becomes something of a dumping ground for various other provisions that may enter the Minister's mind from time to time while the Bill is before the House.
I have considerable problems with this legislation although it contains necessary aspects, such as preserving the scene of the crime. I always thought that provision was part of the relevant legislation but presumably gardaí did not have any right to block roads at crime scenes in the past. We are only regularising this matter now but it is a welcome step. It should have been done long ago.
The legislation contains severe measures which will have fundamental and far-reaching implications in many respects, not least in the area of civil liberties.
More than ten years after the IRA ceasefire, the Government remains of opinion — so far, the Dáil has agreed with the Government on this matter — that ordinary jury courts are inadequate to secure the effective administration of justice and the preservation of public peace and order.
What used to be special measures to deal with emergencies are now part of our ordinary law. For example, it used be possible to argue that, except in exceptional circumstances authorised by the Offences Against the State Act, gardaí have no power in law to arrest a person for interrogation purposes, that Irish law did not recognise the concept of holding a person for questioning and that the only purpose of an arrest was to ensure the attendance of an accused before a court in answer to a charge.
However, a process of gradual statutory encroachment means that arrest, detention and questioning have become routine in the investigation of all but the most minor crimes. The power to question people suspected of serious crimes is not of itself objectionable but what must give rise to caution are the circumstances in which it takes place. Questioning in custody is both secret and compulsory. These two factors go to create an environment in which the suspect can become the subject of oppression and be induced to make a statement. At the time of arrest, the Garda interest changes from one of investigation to one of accusation, and the person in custody becomes the adversary of the Garda Síochána. Custody creates an imbalance between those adversarial parties. Every person who has been exposed to the administration of justice in our criminal courts knows how often confessions made by an accused are introduced as evidence and they are often the sole evidence. Everyone familiar with our criminal courts knows how often the accused will deny the crime and reject his confession and how often such confessions constitute the entirety of the State's case against accused persons.
Even leaving to one side the occasions when police have been suspected of subjecting those in their custody to violence, many suspects find detention in police custody so intimidating and overwhelming that statements made in such conditions of confusion and disorientation are often unreliable. This is of concern in the case of the young, the less privileged, the least educated members of society and those least integrated into society. One of the ironies is that hardened criminals are much more used to coping with police custody than innocent, young or poor people and they are much less likely to make self-incriminating statements while in a Garda station than somebody young and disoriented.
I will outline a number of examples in this regard. The following passage is in appendix K to the report of the tribunal of inquiry into the Kerry babies case:
Ned, Mike, and I left our house at 3.50 a.m. . . . we drove through Tralee, on through Dingle town for about six miles and we stopped at a place where the road runs beside the sea, and Ned who was driving got out and opened the boot of the car and took out the bag containing the baby and threw it into the sea. It was about 5.30 a.m. when Ned threw the bag into the sea. You could see the water from the road where we were parked and when the bag was thrown in, it sank and resurfaced and floated on the water.
This dramatic passage was taken from a statement made to the Garda by Kathleen Hayes, the sister of Joanne Hayes but it is a description of a journey she never made and a series of events that never took place. We still do not know why that statement was made.
I refer to the attitude of Judge Kevin Lynch to the Garda evidence. He stated: "They are not barefaced lies on the part of the Gardaí . . . but they are an exaggeration over and above the true position, or a gilding of the lily, or wishful thinking elevated to the status of hard fact."
A more recent example is the case of Dean Lyons, a young heroin addict from Dublin who was accused of the brutal murder of two patients in Grangegorman in March 1997. Sylvia Shields and Mary Callinan were murdered, stabbed and mutilated at their home in the grounds of the psychiatric hospital in my constituency. Four months after the murders, Dean Lyons was living homeless in the north inner city when he was arrested for questioning. He was taken to the Bridewell Garda station where he was at first held in cells and then placed in a video and tape-recording suite.
Two detective gardaí began questioning him at 2.27 p.m. Mr. Lyons had been without heroin since the previous day. The transcript of this taped interview shows him to be confused and incoherent. We now know that he suffered from learning difficulties at school, feared authority figures and had a habit of confessing to things he had not done. He readily admitted to every charge put to him during the interview. His mother and father, who were allowed to visit him, said he appeared completely disoriented and was swaying and slurring his words when they met him. He was questioned again after they left. As a result he made another written statement and was then charged with the murders of SylviaShields and Mary Callinan. However, when this statement was made, there was no video or audio-taping.
The statement contains a chronologically correct narrative about the murders. It also contains accurate descriptions of the interior of the house and the actions of the murderer inside. The media had not published such detailed information at the time of the murders. It was known only to the murderer and to the gardaí. The written statement is in clear, mostly grammatically correct English. Dean Lyons had left school with partial reading and writing skills and he had a limited vocabulary. On the basis of his confession, he was charged with the murders.
Three weeks later, a young married couple, Catherine and Carl Doyle, were stabbed to death at their home in Roscommon. An English-born man, Mark Nash, had been visiting them with his girlfriend, Catherine Doyle's sister. He had lived in north Dublin for the previous two years. Following the Roscommon murders, Mr. Nash took off across the fields towards Galway but was caught by gardaí within 24 hours. He admitted to the Grangegorman murders when arrested but the gardaí did not have a clue what he talking about.
It transpired that two men confessed to the same murders, one who could not have committed them and the other who has never been charged. We still do not know what happened or whether the person who confessed to the murders, and who is currently in prison, will ever be charged.
The chairman of the Garda Complaints Board, Gordon Holmes, has said that public confidence in the Garda is at, or near, an all time low. While the majority of gardaí were "first class", the public perception is that officers who behave less than honourably are not being adequately investigated and punished. I refer to another voice from the coalface, retired Circuit Court judge, Anthony Murphy, who presided over criminal trials in Cork city and county for many years. He told RTE's "Prime Time": "There have been occasions when the guards have committed perjury in my court". He added he had heard confessions, which were:
couched in Templemore phraseology ... I had a simple rule about it. If there was a confession and nothing else, the man [the accused] walked.
I do not need to refer the Minister to the abuses identified by the Morris tribunal.
The reality is that gardaí will arrest a person because they already believe that person is guilty of committing a crime. They will then question that person in custody to secure a confession that confirms those suspicions and this approach will inevitably impact on the evidence the gardaí may later give in court. The result of this approach, coupled with the political pressure on them to obtain convictions, has sometimes produced miscarriages of justice. Judges will not prevent these miscarriages from happening. That is because no law prohibits interrogation during detention. Interrogation is facilitated by the current rules and it is about to be made even easier.
The explanatory memorandum casually describes the legislation as proposing "a number of amendments to the Criminal Justice law, particularly in the area of criminal initiatives which will generally improve the efficiency and the effectiveness of the criminal justice system". With this introduction, the Minister proposes the most far-reaching changes in the criminal law in more than 20 years when the principle of detention for the purpose of questioning was first established.
The Criminal Justice Act of 1984 provided for increased powers of detention consisting of an initial six hours with provision for a further period of six hours solely for the purpose of questioning. This was a radical departure from the common law position of arrest and subsequent questioning. Detention for the purpose of questioning was perceived at the time as a trawling exercise, which was a major infringement of civil liberties. However, the legislation proposes to double the period of detention to 24 hours, which is the same as that provided under the Offences against the State Act 1939.
Last year when we debated the renewal of the Offences Against the State (Amendment ) Act 1998, which granted further powers of detention to the Garda in the wake of the Omagh bombing, it transpired that the vast majority of suspects arrested were held for only 12 hours and virtually everybody was released within 24 hours. A period of detention of seven days was provided for in 1976 but it was abolished in 1997. It is wrong to equate the period of detention of terrorist suspects with that of ordinary suspects and to imbed it in criminal law.
Under the Good Friday Agreement, Ireland committed itself to a review with a view to dismantling emergency powers and legislation. The Human Rights Commission has gone to great lengths in its peroration on this proposal to explain why the Minister should think more than twice about the introduction of the Bill. I will not go into the details of it, as the Minister has the report. It is absolutely essential that if we are to go down this road, about which I have great reservations, that video and audio recording would be mandatory for all questioning in Garda stations.
The extra detention powers granted to the Garda in the 1984 legislation were to be safeguarded against abuse by the introduction of the new garda complaints measures which were eventually introduced in 1987 and proved such a disaster. That was thequid pro quo.
The furtherquid pro quo at the time was the even more elusive proposal to have video and audio recording of suspects being interviewed while detained in Garda stations. This proposal came about because the activities of the “heavy gang” had brought the Garda Síochána into disrepute in the mid 1970s. A committee was set up under Judge Barra O’Briain in 1977 to establish measures of best practice by the Garda in dealing with and in questioning suspects.
In 1979 the O'Briain report recommended that the questioning of suspects in custody should be audio and video recorded, and that the necessary equipment should be installed in Garda stations. Progress in implementing the recommendations has been scandalously slow. A quarter of a century after the report was published the scheme for audio and video recording of Garda interviews exists only on a pilot basis. This must be the longest period of a pilot scheme anywhere in the world.
Many Garda stations now have the facilities installed, thanks to the Minister. It is time for firm action, for the termination of the pilot scheme and to make mandatory recording of all interviews an integral part of the provisions of this legislation. I will table amendments on this important matter on Committee Stage. I hope the Minister will be open to them.
It must be emphasised that mandatory recording of Garda interviews would be as much a protection for gardaí as for suspects, in terms of the possibility of false complaints. Statistics point to a significant number of frivolous and vexatious complaints.
The move in regard to search warrants is a more sinister and more fundamental provision whereby gardaí would be permitted to grant search warrants to themselves. We have seen how perversely the existing Garda complaints mechanism has operated under the principle of allowing the gardaí to investigate complaints of wrongdoing against gardaí, so much so that the Minister considers it is his prize proposal in the new Garda Síochána Bill 2004 to repeal that complaints mechanism and replace it with an independent ombudsman commission to restore public confidence in the authorities' ability to ensure Garda accountability. We are being foolish in the extreme if we reactivate the same discredited approach in this Bill that we are abolishing in its sister Bill. It is only a matter of time before a future Minister for Justice, Equality and Law Reform would be back in this House to repeal that provision.
A new dispensation in the Bill would allow the Garda to decide to enter and search our homes and property, search us and seize "anything found at that place or anything found in the possession of a person present at that place at the time of the search, that that member reasonably believes to be evidence of or relating to the commission of an arrestable offence". It makes a mockery of the whole concept of a search warrant. A District Court or a justice of the peace are third parties to whom gardaí currently have to argue the case. We should look at other democracies throughout the world, in particular the United States, at the manner in which police officers are questioned on the matter.
I have concerns about how we operate the current procedure. It is patently obvious that there are abuses in the way search warrants are issued at present. I do not refer to the Judge Curtin affair, rather I refer to the reply I received on 10 June 2004 to a question to the Garda Commissioner in regard to search warrants. In his reply he stated that for 2002, the Garda Síochána sought approximately 4,145 warrants and approximately 4,132 warrants were granted. That is an incredible 99.7% success rate. The Garda Síochána must have wonderful powers of persuasion if they can persuade so many judges to grant them search warrants. It suggests that the process has pretty much become a formality. It is high time the matter was addressed but the way to address it is not to give the Garda the authority to grant themselves search warrants.
The reaction of the HRC to this proposal was quite hostile. It stated that the powers of detention without safeguards and the untrammelled powers of search and arrest were stark reminders of 19th century agrarian legislation. The Lord Lieutenant sought to repress agrarian discontent with the heavy hand of the law and the police. At the same time some appeasement and relief was granted through a Land Act. The present twin-track approach of the Minister with the Criminal Justice Bill and the Garda Síochána Bill is a modern version of the 19th century repression and appeasement approach. No doubt the Minister and his Progressive Democrats Party wistfully hanker after the simple, patriarchal measures of the gentry and the empire. However, we are living in changed times in the 21st century.
We certainly are.
Ours is a sovereign State with a Constitution and we have signed up to the European Convention on Human Rights. Mainland Europe and Britain were engulfed in two world wars in the 20th century. We have not experienced civil strife for over 80 years. It is time we faced up to our status as a free, sovereign, democratic State and stopped behaving as a nation under siege from within and without. It is less, not more repressive legislation we need. It is time to dismantle the extensive scaffold of emergency and unusual powers with which we have tainted our democracy for so long and to put in their place a normal criminal and police code more befitting our modern republic. Such repressive measures would include the provision to have a 24-hour detention period and the proposed unilateral search warrant mechanism.
With the development of criminal forensic science, DNA can be used to identify suspects and has been a great asset in the fight against crime. However, one's DNA is also highly personal and it is widely acknowledged that collection and retention of DNA is open to abuse. The Criminal Justice (Forensic Evidence) Act 1990 provides for the collection of DNA samples only in extreme circumstances and with the suspect's consent because of the intimate nature of the collection. The Bill proposes the removal of the existing stringent requirements for the collection of samples. It redefines the mouth and head as non-intimate parts of the body for the collection — forcibly if necessary — of samples and provides for increased penalties for obstructing an officer from taking such samples.
Apart from a possible invasion of privacy, the period that the State may retain one's DNA before destroying it has increased from six months to 12 months, notwithstanding the fact that the suspect has neither been charged with nor convicted of any offence.
A more limited retention period is required as DNA samples, like fingerprint samples, can be used to falsely incriminate a person by, for example, the placing of a sample at a crime scene. Furthermore, the redefinition of the taking of DNA samples as non-intrusive could lead to invasion of personal body space where the person is reluctant to comply.
It is worth noting the Human Rights Commission's view on this matter. It is deeply concerned at the possible abuses inherent in the reclassification of samples and the authorisation of the use of force. Big brother is beginning to crowd the space once more.
As is his wont, the Minister for Justice, Equality and Law Reform has a penchant for grafting on amendments and miscellaneous sections to his original legislative offering which tend to become as significant as the original. The Criminal Justice Bill 2004 is no exception.
Section 29 is an extraordinary provision. It allows a garda only on his or her reasonable and subjective opinion that a person is committing an arrestable public order offence to fine that person on the spot or by post by means of a fixed charge notice. Failure to pay this fine will lead to a 50% increase in the amount of the fine after 28 days. Failure to pay the fine within two months will lead to prosecution and the defendant will be liable to a further fine of €1,500. The Minister has stated that this measure is aimed at public order offences connected with unruly behaviour and binge drinking. However, this type of broad measure has been used in the past to criminalise dissent and to discourage legitimate forms of public protest.
Again, it is a radical departure from the norm. Article 34 of the Constitution guarantees that justice will be administered in a court of law. However, this is not a court of law; it is another big brother. If the garda forms the opinion that an offence has been committed, he or she immediately becomes judge, jury and executioner. The suspect has no right to due process as there is no due process. If he or she fails to pay the automatic fine within the specified time, the offence is metamorphosed into a criminal offence attracting a summary conviction and €1,500. This is a catch-22 — a distortion of justice — and it provides enormous scope for abuse.
The Bill provides that the fine not exceed €1,500.
That is the specified amount. There is no further indication to the judge.
It is for the judge to decide what amount will be imposed.
The Minister could have provided for an alternative. In any case, it is now a criminal offence. Moreover, which judge will listen to a young man or woman who has not paid the fine originally imposed by the garda in the middle of the night?
They will listen. There can be no conviction without a trial.
Whose word is likely to be taken in such a situation?
Perhaps this discussion would be better left to Committee Stage.
Perhaps the Minister would wait for Committee Stage. It is my entitlement to say a few words. The provision in section 29 is a devilishly clever abuse of the system, which will no doubt accumulate great wealth and riches for the Exchequer.
One of the more bizarre and unusual of the miscellaneous provisions in the Bill is in section 30, which relates to the secure accommodation of firearms. This is before we even have sight of the extra chunk of amendments which are to be made to the Bill. The section provides that a new requirement for obtaining a firearms certificate is to have available a secure place for the accommodation of the firearm. While this is an eminently suitable provision it is totally misplaced in a Criminal Justice Bill, which I hope the Minister will explain to the House on Committee Stage.
All the other conditions for securing a firearms certificate are contained in the Firearms Act 1925. Any right-minded person would amend the Firearms Act, but not the Minister for Justice, Equality and Law Reform who must be provocative and different. He has incensed the National Association of Regional Game Councils and they are outraged at the proposal to bring them and their sporting activities within the ambit of criminal law. Approximately 200,000 members of these organisations are roaming the countryside.
The discharge of firearms with fatal results has been a major feature in criminality in today's Ireland. However, it is illicit weaponry bought on the Internet, as indicated by Superintendent Roche in Blanchardstown——
Firearms are also stolen from houses all over Ireland.
The vast majority are not.
I do not accept that.
It would be an interesting debate if the Minister provided the figures on the matter. Weaponry is obtained on the Internet and is imported from the Continent in drug consignments, of which the Minister is well aware. It is also traded by Northern Ireland's more or less redundant paramilitaries from both sides, loyalist and republican, who are also bringing some of their weaponry into this State and becoming involved in illegal activities, about which the Minister knows and articulates his position strongly. There are many dissidents at large.
The Minister needs to take urgent measures to put these illegal weapons out of circulation. However, he will not do so by bringing legitimate gun owners, who hold firearms exclusively for sporting purposes, within the domain of this criminal and draconian Bill. Rather, it should be placed within the remit of the Firearms Act 1925 so that the law will not criminalise anyone.
The Minister has produced a radical and fundamental Bill. It is one of the most important, along with the Garda Síochána Bill, to have appeared before this House in many decades. I look forward to debating the Bill on Committee Stage. I applaud the Minister's approach to many areas of the Garda Síochána Bill but I will remain critical of many of the measures contained in this Bill unless he is prepared to provide considerable safeguards.
I wish to share time with Deputies Cuffe and Ó Snodaigh.
Is that agreed? Agreed.
I welcome the debate on the Criminal Justice Bill because it is particularly important in view of the issues of crime and justice in society. I strongly support the urgent need to change provisions in respect of policing and justice issues and to deal with crime and its causes. We must bring improvements to our legislation and I welcome any positive developments to that end. However, this change must also be mixed with common sense and respect for human rights. This is why I have concerns about sections of the Bill.
When one considers the words "criminal" and "justice", it is essential we remind ourselves that we are dealing with anti-social behaviour and the drugs crisis as well as the use of firearms and other criminal matters. It is important that we deal with these issues in a professional and objective manner. My concerns about the Bill include, for example, the issue of the period of detention being increased from 12 to 24 hours.
I also have major concerns about the use of electronic tagging because I believe it is a step in the wrong direction. People should not be fixed with tags to sit in their house and do nothing about a crime for which they are responsible. Instead, serious community service orders should be imposed to deal with these issues, a view the public broadly supports since it is an effort to repay society for damage done to it. A number of projects of this nature have been initiated in Northern Ireland and elsewhere and have proven effective in dealing with petty crime in particular. There is nothing wrong with people repaying their debt to society and making up for their crimes by helping the community in some way. This work could help a project in the person's own community, whether it involves dealing with disadvantaged pupils or people with disabilities. These are important parts of the justice system which could be made more effective. Furthermore, from a financial point of view, it could also save a great deal of taxpayers' money.
When one is dealing with crime and justice issues it is essential that we are constantly vigilant about human rights issues. There is no contradiction in this position. People who raise human rights issues in this society and the broader political world are often dismissed by sections of the media as being soft-left liberals. However, if the core values of human rights are not enshrined in legislation, no favours are being done for the broader society. I appeal to the Government to listen to the voices of those who have a genuine respect for human rights. I do not want to see legislation passed that includes elements which might be associated with a South American right wing junta. Having visited parts of South America, I know how abuses of human rights have occurred and have made the situation in particular countries much worse. I am aware of this from discussions with members of the Red Cross and other international bodies.
When one examines the details of the Criminal Justice Bill, one can see that it proposes a number of amendments to the criminal law, particularly in the area of criminal investigations, which will enhance Garda powers in tackling crime. It will generally improve the efficiency and effectiveness of the criminal justice system. The Bill takes into account the recommendations of the expert group appointed to consider changes in the criminal law as recommended in the report of the steering group on the efficiency and effectiveness of the Garda Síochána. Some excellent ideas came from the expert group. I welcome its interest in the whole idea of efficiency and effectiveness, because these are the key words in the legislation. The biggest complaint I receive from constituents on the north side of Dublin is about the efficiency and management of the gardaí. There is much respect for gardaí on the beat and there is much respect on the north side of Dublin for members of the drug squad, for example. Over the past couple of years, millions of euro worth of drugs was confiscated in the Coolock and Dublin North-Central areas of my constituency. I commend the gardaí involved in these activities because they also played a major role in saving lives and getting many firearms off the streets in the north side of Dublin. However, this does not mean we cannot deal with issues. While one should focus on examples of good practice, it is also essential to highlight weak practice and bad management.
Section 4(1) of the legislation proposes that where a member of the Garda Síochána is in a public place, or any other place under a power of entry authorised by law or to which or in which he or she was expressly or impliedly invited or permitted to be, he or she may, pending the giving of a direction undersubsection (3), take such steps as he or she reasonably considers necessary to preserve any evidence of, or relating to, the commission of the offence. The steps which may be taken are specified in subsection (4). I refer to this section in light of a particular case I was asked to raise with the Government and the Minister for Justice, Equality and Law Reform. I am referring to the death of a man in Birr, County Offaly. I will not name the person out of respect for the family. The family is very concerned about the way that case was handled. They feel the job was not carried out professionally. The scene was not preserved properly and they feel there are serious questions regarding the death of this man. The family believes their brother was murdered and this situation must be cleared up. The State pathologist’s report stated that the post mortem examination of the body showed an injury to the back of the head which was bleeding. The injury was a laceration, a skin split due to blunt force trauma. Such an injury can be caused by a blow to the head but it is probably more commonly due to a fall and would be consistent with the head striking a projecting surface, for example, the corner of an item of furniture. The family is convinced that not sufficient research and investigation was carried out in the case. I raise the case because it is proper that victims and families are listened to when people’s deaths are investigated.
On the broader issue of crime and justice, we must deal with children who are involved in crime. The reality is that 65,000 children are living in severe poverty. Within that figure, 200 to 300 children living in violent and dysfunctional families are at risk and need our help. We will not do these children any service if we do not try to intervene and do something for them at an early age. I am talking about pre-school age and primary school level, particularly junior infants, senior infants and first class. There must be intervention at an early age, otherwise we will lose these children forever. This is a major issue which is not taken very seriously in the broader criminal justice area. We should listen to people on the ground, particularly primary school teachers, who are sending out the message throughout the different parts of the city and the State that there are children at risk who need our help. This would not just help these children, it would save taxpayers money in the future because many of these children will otherwise end up in Mountjoy.
This should be examined. I appeal to the Minister to listen carefully to this message. I also appeal to the Minister for Education and Science to listen to the people who work on the front line dealing with some very sad and difficult cases. There should be some sort of an allowance to retain quality teachers in schools in disadvantaged areas. The biggest complaint I receive from people on the ground is that we are losing many quality people. We should consider rewarding people who are creative and who are committed to the education of children in schools in disadvantaged areas because they have a very valuable role to play in society.
Section 23 provides that a member of the Garda Síochána who has reasonable grounds for believing that a person who is not less than 18 years is committing or has committed an offence under section 5 of the Criminal Justice (Public Order) Act 1994, that is, disorderly conduct in a public place, may serve on the person personally or by post a fixed charge notice. Section 23 raises the issue of anti-social behaviour. This is a regular complaint at clinics and public advice centres of all public representatives.
I welcome the debate on crime and justice. I hope there is a debate on the broader issue and that we will tackle the causes of crime. I hope we will deal with anti-social behaviour, the drugs crisis and the lack of help for children at risk.
I am not convinced that giving the gardaí additional powers at this stage is the correct way to tackle the concerns that exist regarding criminality. I am not convinced that as the divisions in Irish society increase, concerns about the performance of the gardaí increase and as concerns mount regarding the treatment of persons in custody that we should be giving the gardaí additional powers. I am not sure we should use high-tech measures such as electronic tagging because I am not convinced the international research indicates it is a worthwhile move for Ireland. We should ensure instead that the gardaí have sufficient manpower to do the job they are trained to do. I am aware the Minister has made a commitment to increase the number of gardaí. While it is impossible to snap one's fingers and increase the number of gardaí overnight, I had hoped that more resources would have been put into ramping up the amount of recruitment to the Garda so that we can get more gardaí on the streets. We should allow the gardaí to function in the way they would wish. Instead of running from one crime scene to another, they should be given the time to walk the beat, talk with people in the community and engage with the citizens they serve. Instead it appears we are providing a significant increase in the powers of detention and Garda control over those whom they wish to investigate. We are concerned about the increase in detention periods, the right to take body samples without permission, electronic tagging and the requirements on firearms.
We are still waiting for the Minister to make a valid case for an increase in the detention period from 12 to 24 hours. Also, the increase of detention periods applies to all arrestable offences, which is too broad. For example, offences such as the destruction of property and rape will have the same detention period. A more focused approach would be better than providing such a broad measure to the Garda Síochána. Increasing the detention period may lead to an abuse of the offender's rights in the context of pressure to sign a statement.
We urge the Minister to ensure that a person can have a lawyer with them during questioning. At present, a person has the right to access a lawyer but does not have a right to have a lawyer present during questioning. This significant increase — a doubling — of the detention period puts more psychological pressure on an individual being held in custody. We must ensure somebody is present to assist them in this period.
The Bill should include detailed regulations for the taking of samples. Moreover, the Minister should take account of the recommendations of the Human Rights Commission in regard to the Bill. The commission rightly pointed out that this is an invasive procedure which can be used as a means of humiliation. The spectre of Saddam Hussein being examined following capture by American forces in Iraq shows how one can be humiliated by the taking of samples or intimate handling while in custody. Regulations must be in place before we proceed with this broad permission to take samples. Examples from abroad support this. The Human Rights Commission referred to the specific safeguards in place in Australia to protect the rights of the individual while taking body samples.
It is interesting to consider international experience of electronic tagging. The evidence suggests that utilising the services of a probation officer is as useful as electronic tagging. The rate of recidivism does not decrease if electronic tagging is used. I worry about the loss of contact with the individual in that tagging is more a futuristic surveillance operation than an engagement with the individual in custody. The lesson in regard to Irish criminality of the past ten years is that we must address the root causes of crime in society and the fact that many of those in custody come from a very small cohort of the population. I am not convinced using high-tech measures to monitor this group while they are out of custody is the way forward. We should first address the reasons for their criminality.
A properly resourced probation service would be able to do its job more effectively, particularly in the area of overseeing community service orders. I urge the Minister to take on board the concerns of non-governmental organisations and the advice of the Canadian Government which stated in regard to a report on electronic monitoring that one of its most telling findings was that the recidivism rate for the electronic monitoring of offenders was not different from the rate of probationers after controlling for offender risk. The lack of difference questions the cost-saving value of electronic monitoring.
I worry about the diminished human contact with the individual. This will increase——
If probation supervision has exactly the same rate of recidivism, the point cuts both ways.
There is value in human contact.
Is the Minister suggesting an alternative to prison?
I am more interested in the issue of bail.
I am more interested in increasing the human contact between the offender and the State. Introducing electronic tagging at this stage would run the risk of creating greater divisions in society.
With regard to the requirements for firearms certificates, I take the point the game councils make, namely, that they are being tarred with the same brush by being sluiced into the Bill. While the Minister may have valid reasons for incorporating this matter into the Bill, I hope he would at least engage in dialogue with the game councils to alleviate their concerns. I assume the Minister is trying to ensure that any firearms in the public domain are kept under lock and key and that children in particular are not put at risk or able to access firearms as easily as they might be at present. If this is the case, I welcome the measure but it would be useful to have some inkling of the further regulations the Minister might introduce in this area. The Minister's legislative record shows that he introduces much detail on Committee Stage and more detail in regulations. It would be no harm to get a flavour of what will come down the line prior to looking for permission from the House to approve it.
It is a mixed Bill. It is hard to see through the detail to its inception or to ascertain exactly what knock-on effect the Bill will have. However, I am deeply concerned at giving the Garda Síochána increased powers of detention at a time when the public seek more gardaí on the streets rather than the locking up for longer periods of those taken into custody.
Ar dtús tréaslaím leis an Aire as an óráid oscailte ar an mBille seo a thabhairt go h-uile agus go h-iomlán as Gaeilge sa 45 noiméad a tugadh dó. Tá súil agam nach é ant-aon Aire a dhéanfaidh sin agus go gcuirfear leis an méid Ghaeilge a úsáidtear sa bhfoirgneamh seo amach anseo.
I gcroí lár an mBille seo tá leathnú suntasach ar chumhachtaí an Gharda Síochána, sin an fáth ar dtús gur foilsíodh é i 2003 faoi teideal Bille Chumhachta an Gharda Síochána sular ceiltíodh an aidhm agus gur leathnaíodh é isteach sa gcruth atá ós ár gcomhair inniu. Séard a dhéanann an Bille ná cumhachtaí gabhála an Gharda a leathnú. Cuirtear lena gcumhachtaí samplaí corpach a thógaint gan toil an duine. Leathnaítear na cumhachtaí i dtaobh eisiúint barántais cuardaigh. Níl seo ach céim amháin ó chuardach gan barántas a fhógairt.
Níl sa Bhille seo ach ceann eile de sraith reachtaíochta draganta ón bPáirtí Daonlathach ó tháinig a bhaill i réim sa Rialtas seo. Nach ait é go bhfuil an tAire diúltach i leith idirghabháil Stáit in aon ghné eile de shaol pearsanta ach nach bhfuil fadhb ar bith aige cur le cumhachtaí ionraitheach an Stáit trí cur le cumhachtaí an Gharda Síochána go leanúnach. Mar aon lena pholasaithe uilig, ní shíleann sé gur gá dó fianaise ar bith a léiriú go bhfuil gá leis na cumhachtaí breise nó go gcuirfidh siad le héifeacht an fhórsa póilínteacht. Dá mbeadh a leithéid de fianaise ann, bheinn sásta é a mheas.
Déanann an Bille seo roinnt gnéithe amhrasacha nach bhfuil ceangailte le chéile a thionsnú, agus níl na cosaintí cuí snaidhmithe leo, mar shampla, na hathraithe i roinn 3 de na rialacha faoi inghlactacht ráitis finnéithe tugtha lasmuigh de chúirt, nó arís ag ligint don Director of Public Prosecutions achomharc a lorg i dtaca le pianbhreitheanna a shíltear bheith róbhog, agus i bPáirt 5, roinn 29, trí fíneál seasta uathoibreach a thionscnú d'ógánaigh a bhraithtear beith gafa le coir ord phoiblí.
Déanta na fírinne, b'fhéidir go bhfuil moltaí an Aire ag teacht salach ar chearta bhunreachtúla agus ar dlí Eorpach agus idirnáisiúnta. Féach cheana féin an tseachtain seo conas mar a sheas tuairim an Aturnae Ginearálta i leith reachtaíochta ar ardaíodh ceisteanna bunreachtúla faoi. De thairbhe an dabht sin bheith ardaithe, ní amháin gur léirigh an Coimisiún um Chearta an Duine na gnéithe a bhí ag déanamh tinnis dó sa mBille seo ach is léir gur dhiúltaigh sé an Bille ina iomlán.
Ach tá an tAire tar éis neamhaird a dhéanamh ar na ceisteanna a d'ardaigh sé. Is léiriú é seo ar mheon an Taoisigh nuair is féidir leis an Aire neamhaird a dhéanamh go leanúnach ar an Choimisiún um Chearta an Duine, gur féidir leis neamhionannais sóisialta a chraobhscaoileadh agus fós go ligtear dó a aireacht agus a chúram a choimeád.
Tacaím agus tacaíonn Sinn Féin le beartanna atá crua i gcoinne coiriúlachta, ach tá imní ró-mhór orainn faoi mholtaí an Aire chun tacaíocht a thabhairt don mBille áirithe seo. Mar shampla, i roinn 5(20) den mBille, tugtar cead do Cheannfort an Gharda Síochána barántas cuardaigh a eisiúint as a dheoin féin seachas ar iarratas chuig breitheamh na Cúirte Dúiche. Séard is brí leis seo ná gur féidir le gardaí ionradh ar áitreabh de réir a dtola fad is a thugann an ceannfort cead dóibh. D'éiligh an Choimisiún um Chearta an Duine gur gá an smacht breithiúnach a choimeád ar eisiúint barántais cuardaigh mar gur cur isteach suntasach é seo ar cheart do shaol priobháideach atá cosanta ag Alt 40.5 den Bhunreacht 1937 agus cosanta ag dlíthe ceartanna daonna idirnáisiúnta, ina measc Alt 8 agus Alt 1 de Phrotocól 1 den Choinbhinsean Eorpach ar Chearta Daonna agus Alt 17 den International Covenant on Civil and Political Rights.
Cheistigh an coimisiún chomh maith an raibh gá leis na forálacha atá molta ag an Aire mar go bhfuil cheana féin fáil ar bhreithimh na Cúirte Dúiche de lá is d'oíche chun déileáil le hiarratais chun barántais cuardaigh a mheas. Deir an Coimisiún um Chearta an Duine nach bhfuil an cás déanta ag an Rialtas agus measaim féin nach bhfuil sé déanta ag an Aire sa gcás seo.
Ligeann roinn 8 leathnú ar an am coinneála suas go 24 uair a chloig chun iad siúd atá faoi ghlas a cheistiú faoi ghnáth coireanna. Arís, tugann an Coimisiún um Chearta an Duine an argóint go mbeidh an Stát ag cloí ar a dhualgais faoin Choinbhinsean Eorpach ar Chearta Daonna agus an ICCPR leis an moladh seo. Cuireann Alt 40.4 den Bhunreacht, Alt 5 de Coinbhinsean Eorpach ar Chearta Daonna agus Alt 9 de ICCPR iachall ar an Stát siúd atá gafa ar aon chúis coiriúil a thógaint os comhair udarás breithiúnach gan mhoill. Tá an coimisiún faoin dtuairim gur leor an tréimhse 12 uair a chloig faoi choinneál atá ann faoi láthair ar mhaithe le fiosrúchán ceart agus comhair, agus nach bhfuil an cás leagtha amach ag an Aire cén fáth gur gá an chumhacht seo a leathnú.
Faoi roinn 13 ligfear samplaí corpartha áirithe — swab béil agus eile — a thógaint gan chead agus ligfear do na húdaráis na samplaí sin a choimeád go ceann bliana fiú muna bhfuil an duine cúisithe as aon choir. D'ardaigh an coimisiún roinnt gnéithe atá ag déanamh buairt dó faoin moladh seo. Dá réir, níl go leor cosaintí ann agus mar atá sé dreachtaithe faoi láthair ní dhéanann an Bille seo coimheá idir leas an phobail ó thaobh faisnéise a fháil agus idir cheart an duine le meas ar a iomláine fisiciúil agus a shaol priobháideach agus go bhfuil tar éis teipe go hiomlán ar an Aire a chruthú go bhfuil sé riachtanach no cionmhar chun coireanna a chosc.
Cé go ligeann an reachtaíocht seo don Aire rialacha a leagann amach i leith tógaint samplaí corpartha ar an mbonn atá molta ag an choimisiún, bheadh sé níos fearr dá mbeadh a leithéid de chosaint scríofa sa bhun reachtaíocht agus nach mbeadh sé fágtha ar dhiscréid an Aire nó athrú Airí gan maoirseacht reachtúil.
Tógaim an deis seo chun glacadh leis agus failtiú roimh na buntáistí móra d'fhiosrúchán agus cúisiú coireanna a fhéadfaidh theacht as DNA. Aontaím leis an Chomhairle Éireannach do Chearta Sibhialta, an ICCL, gur gá d'aon chóras atá ag bailiú eolais DNA le choimeád bheith riaraithe le caighdeán cosanta priobháideachas docht agus gur gá chinntiú nach ndéanfaidh aon inference a ghlacadh faoi chiontacht nó nach dtagann sé salach ar an cheart do triail chóir an duine agus go mbeidh seo leagtha amach igceart.
Aontaím chomh maith gur cóir go mbeadh fáil ar an bhunachar seo má tá sé ann ar mhaithe le cruthú nach bhfuil aon duine ciontach chomh maith le daoine a bheith ciontach agus go mbeadh cóir soiléir leagtha amach i leith siúd a úsáideann a leithéid de bhunachar d'aon ghníomh seachas d'fhiosrúchán coiriúil. Molaim don Aire agus Teachtaí eile an Tí seo díriú ar an tuairisc speisialta an ICCL ar an cheist seo. D'fhoilsigh sé "The Human Rights Compatibility of the Establishment of a DNA Database" i mí Dheireadh Fomhair 2003 agus tá roinnt céisteanna móra spéisiúla ansin.
Maidir leis an cheist faoi ligint de ráitéisí a dhéanamh roimh chás cúirte agus atá salach ar ráitéisí ina dhiadh sin mar chuid den fianaise, mar a ligfear faoi fhoralácha Chuid 3 go bhfuil roinnt fadhbanna anseo. Seo gné a dhírigh an Comhchoiste um Dhlí agus Ceart, Comhionannas, Cosaint agus Cearta Bán sa Teach seo isteach uirthi agus phlé sé go dian í. Chaith an coiste a lán ama ag cíoradh na ceiste seo agus tar éis teip chás dunmharú i Luimneach. Is trua gur léiriú seo ar sotal an Aire gur fhoilsigh sé an Bille seo sula raibh muid críochnaithe sa choiste sin ag plé sin agus nár fhan sé ar mholtaí an choiste — fiú nuair a bhí a lán Teachtaí Rialtais gafa leis an díospóireacht sin.
Tá imní mhór ar Choimisiún um Chearta an Duine agus an ICCL. Dúirt siad nach bhfuil na cumhachtaí atá acu úsáidaithe ina n-iomlán ag na gardaí agus ag an chóras dhlí agus gur theip an tAire a léiriú go bhfuil fadhb suntasach, dáiríre agus leanúnach ann agus gur gá an dlí a athrú sula dhéanfar na bunchéimeanna eile maidir le cosaint bhreise finnéithe a thógáil ar dtús. Rinneadh a leithéid de moltaí ag an choiste anuraidh agus is trua nár tógadh na céimeanna sin sular thosaigh muid ag athrú an dlí.
Níl gá ann le níos mó cumhachtaí do na gardaí. Is é atá uainn na dáileadh níos éifeachtaí agus níos straitéisí ar na hacmhainní atá ag na gardaí faoi láthair mar aon le leasú ar an Gharda Síochána chun a chinntiú go mbeadh an fórsa níos freagraí do cheantair agus na daoine ina bhfuil sé ina measc. Tá roinnt de sin sa mBille Garda Síochána agus tá súil agam go mbeidh sé níos freagraí i ndiaidh leasuithe agus tá súil agam go mbeidh an tAire sásta leasuithe a ghlacadh ag Céim an Choiste agus gur féidir linn an Bille a fheabhsú. Faoí láthair ní thugaim tacaíocht dó.
The Minister made the point that for a lot of the time, this is about striking a balance to ensure fairness to the suspect but also to ensure that this does not go overly in favour of the accused. That is a common debate which takes place and we are always concerned to strike the right balance, which is delicate.
I will comment on Part 3 of the Bill but, in passing, I am glad to see that the Garda Síochána Bill is taking shape in the context of full consultation. Many elements of the Bill have attracted a lot of support from the Opposition and on that basis, the powers conferred by Part 2 of the Bill are timely. I would not be concerned about them and would be pleased to see the powers of the Ombudsman commission going hand in hand with increased powers for the Garda.
However, Part 3 gives me some cause for concern. The Minister makes the point that this comes from a Canadian Supreme Court decision and as such is part of Canadian common law. It makes me wonder why it is never before the Irish Supreme Court or why, for example, a similar case was not taken after the Keane trial, perhaps by the DPP, to see if there were a possibility that the Supreme Court might admit pre-trial statements. It is worth making that distinction. We are putting it into law by statute, and it is always welcome that the Legislature takes the bull by the horns rather than waiting for the Judiciary to do its job for it. However, the question must be asked why it has never come through the Irish common law system. That is the basis of my concerns. The Irish courts, while identifying what Mr. Justice Carney lamented as collective amnesia, have never seen the need to make such amendments.
The legislation came about as a result of the collapse of that trial. That happened on 30 October 2003, and it concerns me that the Minister declared that he would introduce this legislation only four days later. Given that the rules of evidence have developed over a century, that we should decide after four days' deliberation to turn some basic rules on their head is worrying. In 1980, the Law Reform Commission conducted a detailed analysis of the area and recommended extremely strongly against the types of reforms considered here. There is a danger of changing law quickly in reaction to public disquiet for political reasons. It is not good to be patriarchal and tell people what is best for them. At the same time, one must also caution against laws that are dreamt up or decided within such a short time of a public outcry or the identification of a problem. We can see that in the health legislation passed by the Dáil before Christmas. When one is too quick in one's response, one can cause problems.
I will give an example of what I see as a problem in these provisions. If someone makes a statement in a Garda station and then goes to court and resiles from it or says nothing — there are certain categories where that can happen — it gives a witness an opportunity to stitch up a defendant. There is a possibility of a double bluff. We are trying to deal with people who are ruthless and prepared to intimidate witnesses. Equally, I would imagine that if I wanted to stitch up an accused, I could make a statement in the Garda station knowing that I would not be cross-examined on it. I would then go to court and resile from it or say nothing whatsoever on it. There is a very strong chance under the new legislation that the trial judge would admit that statement and that the witness would know that he or she would not be cross-examined. That is a very serious concern, and I hope that the Minister will address it.
I know that there is a whole raft of safety measures to ensure that the statement is reliable and given under oath. Fundamentally, however, the accused is not there, and there is no cross-examination. There is a whole new category of evidence being introduced into Irish trials that we have not had before, and we should not take such a step lightly. Nothing much has changed. Criminals have not become more ruthless. The gardaí are not less able to protect witnesses. For example, the Criminal Justice Act 1999 allowed evidence to be given by deposition, on oath, in the presence of the accused or by television link. Stronger sentencing powers were granted to courts regarding offences of intimidation. We have seen improvements in the court system and how the Courts Service conducts trials. We have seen improvements in bringing the High Court to Limerick in the case of the problems there to avoid intimidation.
Those changes must be bedded down. We must see if there is another example of the problems that emerged at the Keane trial. We should not change our law of evidence and the basic rule against hearsay on the basis of one case. Would the statements from which witnesses in the Keane trial resiled be admissible under this legislation if that trial were held after this legislation becomes law? I am not sure since most of the statements from which people shrank back were caution statements and not under oath. I am not a criminal lawyer and am not sure whether there may be a distinction between the two. However, the new legislation requires that the evidence must have been given under oath. As far as I know, the Keane trial statements were caution statements and therefore would not have qualified for admittance. That must be examined.
We must also consider the danger of evidence given in the Garda station or, as the Minister said in his speech, statements given to the Revenue Commissioners. Very often people have axes to grind. We are talking about the heat of the moment, and people sometimes want to change their minds about that sort of evidence because whatever grievance they had at the time of giving evidence has disappeared. They go into court and make what they say is a true and honest statement, but that can be overlooked by the trial judge. That is also dangerous, and I hope that the Minister will reconsider that and decide whether it is appropriate.
The basic common law system in Ireland, where a witness turns hostile, allows counsel to bring him or her back to the proof. Alternatively, counsel can attempt to discredit the witness by cross-examination, pointing to his or her inconsistencies. Ultimately, however, that evidence is no longer acceptable. The pre-trial witness statements are never admitted. Cross-examination is the great power of our adversarial system. It has been relied on by the criminal justice system for centuries, and I see serious danger in permitting this legislation on to the Statute Book. The rule against hearsay prevents the situation where one is at one remove from a court, in a Garda station, and not in the presence of the accused. If the Criminal Justice Act 1999 required the presence of an accused and a sworn statement, those requirements should also be here. We do not have such a major problem that it requires draconian measures at this stage.
We should take great care in deciding whether this change is appropriate for the reasons that I have pointed out. A much longer gestation period should be allowed before we commit ourselves to making fundamental changes to the rules of evidence. The Minister might have considered submitting this proposal to the Law Reform Commission for its consideration; that is the more common route. I am not sure what the attitude of the Human Rights Commission is to all this, how it fits in with the principles of natural justice andaudi alterem partem, whereby one is entitled to have one’s statement cross-examined, or whether it is constitutional. These are concerns I hope the Minister will have an opportunity to consider.