Criminal Justice Bill 2004: Report Stage (Resumed).

Debate resumed on amendment No. 9:
In page 15, between lines 9 and 10, to insert the following:
"5.—Notwithstanding any enactment, provision may be made by rules of court that a warrant issued by a judge of any Court for the arrest of a person shall continue in force until executed or cancelled by the judge or another judge.".
—(Deputy Howlin).

The purpose of the amendment is to ensure that warrants issued by the courts come to something, an issue we debated on Committee Stage. It is a cause of concern that a warrant could be in existence in perpetuity without being acted upon. The amendment proposes introducing a requirement that the Court that issued a warrant be updated on the position and the warrant either discharged or an explanation given to the court for the failure to execute it, for example, in the case of a person being outside the jurisdiction.

I am conscious that we are discussing No. 9 of 417 amendments and time is limited. The Minister engaged usefully in the Committee Stage debate on this issue. Has he had time to reflect on my proposal? Does he envisage the introduction either in this or other legislation of a provision to deal with warrants that have not been executed?

As I indicated previously, I have been alerted recently to cases in which individuals who committed serious offences were arrested without gardaí noting that extant warrants had been issued for the arrest of the arrested persons. While I presume these matters are checked as a matter of routine, given the technological age in which we live, it is necessary to improve systems, as we discovered recently in other areas of the criminal justice system. Has the Minister reflected further on this matter in the short period since Committee Stage?

I have had an opportunity to reflect on the Deputy's contribution on Committee Stage. I have considerable sympathy for his view that in some cases warrants appear to run into the sand. I will ask the Courts Service to examine whether the rules of the District Court, which, in respect of some warrants, provide for a six month lifespan, should be reconsidered and whether there is a case to be made for a return on a warrant to be made when the time limit is expired. I will examine the issue and I am deeply grateful to the Deputy for raising it.

It is unsatisfactory, even from the point of view of public confidence in the system, that a parliamentary question may elicit information that thousands of warrants are not executed. That does not sound right.

Garda time is limited and gardaí must be selective about what they do. While a system should be in place whereby they follow up and report back on warrants, I do not wish to create a new bureaucratic monster that will result in gardaí not being on the street because they are filling out history papers about their efforts to execute a warrant, which may not be the most productive use of their time.

While I thank the Minister for his worthy suggestion, I am somewhat concerned by his last comment. If the Bench issues a warrant, it should have value and the notion that a garda would be wasting his time in pursuing it——

I referred to filling out forms.

I am making a different point. The word "smacht" comes to mind in this regard, probably because of our earlier debate as Gaeilge. At any rate, the Bench should show more discipline. We know arrest warrants are issued for failure to pay the television licence fee and so forth. While I am sure these are serious matters, if it was clear that Garda time would be spent attempting to execute a warrant, it would impose some degree of discipline on the issuer in terms of ascertaining whether an alternative is available. I ask that this be encompassed in the review the Minister proposes to ask the Courts Service to undertake. Some warrants appear to be issued unnecessarily. If, however, a court makes an order that a person be presented to the court or a notice served on a person, that order must be executed in so far as it is practicable to do so. I thank the Minister for his reply and withdraw the amendment on that basis.

Amendment, by leave, withdrawn.

I move amendment No. 10:

In page 16, between lines 24 and 25, to insert the following:

"(k) preventing any person from photographing or otherwise recording the crime scene and/or anything at the scene.”.

The purpose of the amendment is to give the Garda authority to prevent tabloid newspapers or others from sensationalising a crime scene.

I appreciate where the Deputy is coming from because, on occasion, distasteful photographs are published which must be deeply upsetting for relatives. I just looked at a case that was disposed of the other day which featured photographs of blood on the ground. It must be very upsetting to the victim of the crime to see that scene again and again in the newspapers but that was the way it was.

We live in a world where many of us carry mobile telephones with camera facilities and the capacity of the Garda Síochána to stop people taking pictures of crime scenes before or after a crime is fairly limited. The right of members of the public to information must be balanced. Is it reasonable to require of the media that pictures cannot be taken of a general crime scene following a shoot-out during a bank robbery? I would prefer to see if a voluntary approach could be agreed between the media and the Garda Síochána on self-restraint in this area.

Generally speaking pictures of people who are dead or dying should not be published where they would cause offence or distress. On the other hand, let us be honest about the case of Detective Garda Jerry McCabe. Pictures were shown of him lying dead in a car in which he was left by those who killed him. Maybe it is time people realised exactly what was done on that occasion and how grotesque and cowardly that offence was. This is a difficult issue about which I do not pretend to know all the answers. However, it would not be wise of me to accept an amendment prescribing that, as a general proposition, the Garda could prevent any crime scene from being photographed.

In view of the Minister's reply and given that new technology would effectively prevent the Garda from enforcing such a requirement, I propose to withdraw the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 11:

In page 16, line 37, after "practicable" to insert the following:

", but any failure to so do shall not render invalid, retrospectively or otherwise, such a direction".

The purpose of Deputy Jim O'Keeffe's amendment is to ensure that failure to provide a written report quickly will not invalidate the original direction.

I am informed — and I agree — that the inclusion of the words, "as soon as reasonably practicable", is sufficient and broad enough to take care of any circumstance where there is a legitimate reason for a time difference between the giving of a direction orally and the recording of it in writing. I am aware that provisions such as that suggested are employed where certain procedural matters are set out in regulations, for instance, under the Criminal Justice Act 1984. Where it is stated in primary legislation that a record of a direction shall be made, such saving provisions are not generally used. For example, in the 1994 Act, in another context, there is provision for a direction to be given on the detention of a person, which must be recorded in writing as soon as practicable, but there is no special provision of the type proposed by Deputy Jim O'Keeffe. Therefore it would be better to leave it as it is.

There have been some recent comments by judges about the lay factors in various situations. The fear is that if this is left in, the judge might put his or her own time interpretation on the event.

We must rely on the Judiciary not only to be independent but also commonsensical and I believe it will not enforce the law in an unreasonable way.

Amendment, by leave, withdrawn.

Amendments Nos. 12 to 14, inclusive, are related and will be discussed together.

I move amendment No. 12:

In page 16, lines 39 to 45, to delete all words from and including "shall" in line 39 down to and including "concerned." in line 45 and substitute the following:


(i) describe the place thereby designated as a crime scene,

(ii) state the date and time when it is given,

(iii) state the name and rank of the member giving it, and

(iv) state that the member has reasonable grounds for believing that the direction is necessary to preserve, search for and collect the evidence concerned.".

This set of amendments was carefully examined by the Parliamentary Counsel to see whether it would improve the situation and I am advised it would not. In these circumstances, I do not propose to accept the amendments.

Deputy Jim O'Keeffe introduced these amendments for the sake of accuracy to ensure there would be no room for misinterpretation. If the Minister is happy there is no need for them, we withdraw the amendments.

Amendment, by leave, withdrawn.
Amendments Nos. 13 and 14 not moved.

I move amendmentNo. 15:

In page 18, between lines 35 and 36, to insert the following:

"6.—(1) The Offences Against the State Act 1939 is amended by the deletion of section 29 of that Act.".

This relates to the Minister's statement on Committee Stage that we were dealing with the power to issue warrants and that he was taking on board what Mr. Justice Frederick Morris said as an outcome of the inquiry into Garda misbehaviour and worse in Donegal. I understood that Mr. Justice Morris's recommendation was that gardaí should not have the power to issue warrants. When he spoke about issuing warrants the Minister mentioned this section, which I seek to delete. The amendment is that section 29 of the Offences Against the State Act is amended by the deletion of section 29 which allows the Garda to issue its own search warrants. Given the concerns of Mr. Justice Morris and the fact that the Minister agreed in other circumstances that gardaí should not have the power to issue search warrants, it is reasonable that we take this opportunity to amend the Offences Against the State Act to give effect to that.

I do not have a copy of the Offences Against the State Act, although with this technology I could find it.

It says that a garda not below the rank of superintendent can issue a search warrant.

I wonder how this relates to my amendment, which is to delete the section. I share Deputy Ó Snodaigh's view and understood that the Minister intended to change tack and modify the situation in which gardaí can issue search warrants in view of the unpublished disclosures in and recommendations of the most recent Morris tribunal report. That is what Deputy Ó Snodaigh seeks to do in amendment No. 15 and is what I want to do in my amendment No. 16. I wonder how they relate to each other.

Amendment No. 16 deals with the Criminal Justice Bill while amendment No. 15 deals with the Offences Against the State Act. They are the same.

I understand the principle. If there is a view that it is unsafe not to have judicial oversight of Garda search warrants, that should apply across the system. I agree with Deputy Ó Snodaigh to that extent. We are at a great disadvantage because the Minister has sight of the recommendations from Mr. Justice Morris that we do not have, so he must be more flexible in telling us his thoughts and the reasoning behind them. It would be disingenuous of him to tease us with information we may never be able to read, and certainly not for some time and not before this enactment is law.

I find this confusing. I understood the Minister came up with this idea on Committee Stage and suggested that because of some foresight he had of the Morris tribunal findings, he was prepared or anxious to introduce an amendment that would allow for some lay oversight of the Garda when issuing a warrant.

I support Deputy Howlin's comments and the Green Party shares many of the concerns that have been expressed. There is greater logic in Deputy Howlin's amendment seeking the deletions on pages 19 and 20, notwithstanding that this House, whatever the views of some of us, decided some days ago to renew the Offences Against the State Act. Deputy Howlin's amendment would have greater effect in addressing the concerns.

Section 29 of the Offences Against the State Act allows for the issue of warrants on a non-judicial basis by senior Garda officers in certain circumstances. The committee that examined the Offences Against the State Act in the aftermath of the Good Friday Agreement examined that provision and in its report noted that: "The power to issue a warrant under section 29 is a vital weapon in the armoury of the gardaí in their fight against the activity of illegal organisations." The committee also said: "Given the utility and importance of this power the committee does not wish to make any recommendations that would undermine its effectiveness." The majority of the committee went on to make a recommendation on the time period for the execution of the warrant, but that is a different issue and not the one we are dealing with. As Deputy Ó Snodaigh proposes to amend the Offences Against the State Act to end what the committee that examined the Act said was a vital weapon in the armoury of the Garda Síochána, I do not propose to accept it.

On the latest reports from the Morris tribunal, I am in difficulty in that I had to put that matter before the court. As I signalled on Committee Stage, I intend to seek an expurgated release, in advance of anything else, of the general considerations of that report because it is important to get some of them into the public domain sooner rather than later. I must defer to the High Court, which has seisin of this matter now and I will do it if I can. If I cannot, the House will have to bear with me that the matter will be decided by the High Court in its own time. As I indicated on Committee Stage, the Morris tribunal report indicated unhappiness with the way police-issued warrants could be issued by people involved in the investigations and could be kept in possession of gardaí for execution at a time of their choosing.

Rather than have a debate on the blind in this House, I decided to modify the general recommendations of the Leahy committee that the power be extended to all serious offences and let this matter lie until the autumn.

What is the Minister doing with section 6?

I am removing most of the bits of section 6 that deal with the issuance of non-judicial warrants and I am leaving the judicial bits of the section intact.

I would like this clarified. We are cross-referencing the Minister's new amendments and the Bill as amended on Committee Stage in the void in that we do not know the specific concerns expressed by Mr. Justice Morris. Is the Minister saying that the amendment he proposes to section 6 will leave only judicial warrants on the Statute Book? Are there any circumstances other than those captured by the Offences against the State Act in which it is possible for a non-judicial warrant to be executed?

Apart from existing exceptions, in the Offences against the State Acts and under the Criminal Justice (Drug Trafficking) Act, I propose to remove the general proposal contained in my original amendment as set out on page 19 of the Bill, subsections (2), (3), (5) and the first four words of subsection (4).

Where are the relevant amendments?

They are coming up next, amendment No. 20 and subsequent amendments.

The Minister cannot discuss those amendments yet.

I am simply explaining what I am doing, I am not trying to discuss them.

This is helpful.

I propose to remove subsections (2) and (3), the first four words of (4) and subsection (5), and to leave the rest of the section intact.

I wish to clarify whether it is correct to say that after the Minister's amendments have been inserted only the law as it exists will continue? In other words, this will not create further advance for non-judicial warrants of any kind.

I confirm that is the case.

Once again I must ask a question on the blind. Was there an implication in the report from Mr. Justice Morris that would lead the Minister to believe that even the extra-judicial rather than the non-judicial warrants that are current either under the Offences against the State Act or the Criminal Justice (Drug Trafficking) Act should be revisited?

Yes, from recollection the gravamen of the report was that there should be qualifications on the general right to issue section 29 warrants.

Why does the Minister not do that?

I am not in a position to do it in a measured balanced way right across the board.

Does the Minister recognise the difficulty in which this places us? The Minister tells us that a most serious tribunal examining the effect of policing recommends that we act but the Minister is not going to act.

I will act in a balanced manner when I am in a position to explain to the House exactly what the issues are. It would be unfair of me to say that I am changing the law without saying exactly why.

That is very unsatisfactory.

It is very unsatisfactory but that is the position in which I find myself.

It is clear to anyone who has followed the Morris tribunal why the law needs to be changed in respect of the Offences against the State Act and the abuse by gardaí of the powers given to them under that and other Acts. I took the opportunity when the Minister raised it on Committee Stage to table this amendment. I would prefer to deal with the Offences against the State Act in full. I am giving notice here that this provision needs to be addressed. It should have been repealed here and if necessary the Minister could return with a more measured proposal, if such a measure can be implemented with extra-judicial warrants.

The committee which reviewed the Offences against the State Act was not aware of what was to emerge from the Morris tribunal. If it was meeting today it would be able to take that report on board. I would prefer to consider this. The Minister says he did not have time to consider it but he had the time to consider many other things. Will he consider it before this Bill goes to the Seanad to see whether there is any possibility of addressing the problem at that stage? If not, I will continue to raise aspects of the Offences against the State Act which have been abused and need to be repealed or amended to ensure that opportunities are not available to those who wish to abuse the powers given to them by this House.

Amendment put and declared lost.

Amendments Nos. 17 to 34, inclusive, are alternatives to amendment No. 16. Amendment No. 21 is an alternative to amendment No. 20. Amendments Nos. 16 to 34, inclusive, will be discussed together by agreement.

I move amendment No. 16:

In page 18, to delete lines 36 to 47, to delete page 19 and in page 20, to delete lines 1 to 47.

We have already discussed the content of this amendment inadvertently and I am content in so far as I can be without knowing what exactly is recommended as appropriate in the Minister's strategy. I and Deputy Costello have expressed serious concern at moving beyond the proper judicial control over the issuing of search warrants. It is wrong in principle and that has been exposed to be true by the preview the Minister offered us of the Morris tribunal report. Since the Minister accepts the import of the amendment I will withdraw it in support of the Minister's amendments.

Amendment, by leave, withdrawn.

I move amendmentNo. 17:

In page 18, after line 47, to insert the following:

"(2) The Order of the District Judge issuing a search warrant under this section shall record in writing the offence in relation to which the power has been exercised.".

The point of amendments Nos. 17, 20 and 26 is to give effect to what the Minister has said.

It is the law that when a District Court judge issues a warrant the offence in respect of which it is issued is specified on its face.

The Minister's studies should be able to help him.

There is no such thing as a general warrant.

I have never had a warrant issued against me.

There is no such document as a warrant to search places for any old offence.

Amendment, by leave, withdrawn.

I move amendment No. 18:

In page 18, after line 47, to insert the following:

"(2) In issuing a warrant under subsection (1), a judge of the District Court shall—

(a) have jurisdiction to issue a warrant for any District,

(b) not be jurisdictionally limited to the District wherein he or she ordinarily sits, and

(c) not be obliged to be physically present in any District or in a District in respect of the jurisdiction of which he or she is issuing a warrant.”.

This amendment relates to a case in west Cork in which jurisdiction was questioned.

The subject matter of amendment No. 19 can be dealt with under the rules of the District Court.

We are on amendment No. 18.

No, I am wrong about that. It is dealt with in a subsequent amendment in my name. On Committee Stage, we dealt with that issue near the end of the Bill. This relates to the Dylan Creaven case.

That is right.

We dealt with that towards the tail end of the Bill, in a different place. I misunderstood what the Deputy was highlighting.

Amendment, by leave, withdrawn.
Amendment No. 19 not moved.

I move amendment No. 20:

In page 19, to delete lines 1 to 22.

Amendment agreed to.
Amendments Nos. 21 and 22 not moved.

I move amendment No. 23:

In page 19, to delete line 23 and substitute the following:

"(2) A search".

Can the Minister explain this amendment?

It has already been discussed.

We had a roundabout discussion on it. What exactly does the "search" relate to?

This consequential amendment is designed, in effect, to delete the first four words of line 23 of page 19, which are no longer needed. As I said, we are removing the first four words.

Amendment agreed to.
Amendments Nos. 24 and 25 not moved.

I move amendment No. 26:

In page 19, to delete lines 47 to 50.

Amendment agreed to.
Amendment No. 27 not moved.

I move amendment No. 28:

In page 19, to delete line 51 and substitute the following:

"(3) A member acting under the auth-".

This amendment is in line with what I said previously.

Amendment agreed to.

I move amendment No. 29:

In page 20, to delete line 20 and substitute the following:

"(4) A person who obstructs or attempts".

Amendment agreed to.

I move amendment No. 30:

In page 20, line 24, to delete "subsection (6)(a)” and substitute “subsection (3)(a)”.

Amendment agreed to.

I move amendment No. 31:

In page 20, to delete line 30 and substitute the following:

"(5) The power to issue a warrant under".

Amendment agreed to.

I move amendment No. 32:

In page 20, to delete line 35 and substitute the following:

"(6) In this section—".

Amendment agreed to.
Amendments Nos. 33 and 34 not moved.

As amendments Nos. 36 and 37 are alternatives to amendment No. 35, amendments Nos. 35 to 37, inclusive, may be discussed together, by agreement.

On a procedural point, it does not seem that amendments Nos. 35 to 37, inclusive, are connected. Can we take amendments Nos. 35 and 36 separately?

Is the House agreeable?

Amendments Nos. 36 and 41 are connected.

Perhaps we will take amendment No. 35 on its own.

If amendment No. 35 is accepted, the other amendments will fall.

I move amendmentNo. 35:

In page 21, to delete lines 33 to 49 and in page 22, to delete lines 1 to 40.

Section 9 provides for the period of detention without charge, during interrogation for ordinary crimes, to be extended to up to 24 hours. The Irish Human Rights Commission has argued that this provision may put Ireland in breach of its international human rights obligations under the European Convention on Human Rights and the International Covenant on Civil and Political Rights. Article 40.4 of the Constitution states that a person who is detained on a criminal charge must be brought promptly before a judicial authority. The IHRC maintains that the current provision of 12-hour detention should be sufficient for proper investigation.

The Minister has not made the case for this extension of powers. Any move to consider an extension of the maximum duration of detention without charge must be preceded by an independent investigation into the number of deaths in Garda custody or following Garda custody. We need to ascertain whether what occurred during the length of time they spent in custody and detention had any bearing on the deaths of people like Brian Rossiter, Terence Wheelock or even John Moloney.

I have tabled a number of other amendments which flow from amendment No. 35. I will deal with them if the Minister tries to provide for an extension of the length of time for which people can be held for interrogation. We need to ensure that additional safeguards are put in place, particularly if we give additional powers to the Garda, so that circumstances like those which developed in County Donegal and other places do not develop again.

The approach I favour is slightly different to that proposed by Deputy Ó Snodaigh. I support the section of the Bill relating to the detention periods. The Minister is aware that I have tabled an amendment, subsequent to this section being dealt with by my colleague, that seeks to put in place a unified detention period, rather than a variety of different detention periods for different enactments and certainly for different enactments for similar crimes. I refer to the Offences Against the State Acts and other provisions. There should be some standardisation in relation to that. I will withhold my general comments on the safeguards which should be put in place if we are to provide for people to be detained for questioning, which is obviously an absolute requirement. I would prefer to ensure that such interviews are videotaped, as I will discuss in my next amendment.

As a matter of fact, I think in the vast majority of cases——

We are nearly there.

We are nearly there already. I agree with the spirit of the Deputy's amendment, which is that it would be very unproductive to allow for a lengthy period of detention for questioning in a place where there are no video recording facilities. I do not think the Judiciary would approve of such an arrangement, unless there was some extraordinary explanation that I cannot quite think of at this point.

I would like to say, in response to Deputy Ó Snodaigh's amendment, that it is a little strange that under the existing law, if one uses a firearm such as a shotgun to murder somebody one can be detained for 72 hours under the Offences Against the State Acts, whereas if one uses a baseball bat——

Or a shovel.

——in a paramilitary enterprise one can be detained for a maximum of just 12 hours. I do not think that is a reasonable distinction to draw in the law. Some paramilitaries have, on occasion, been found in possession of baseball bats and have used them to kill people. I always think of the poor man who testified against the IRA chief of staff. As it was during the ceasefire, he was found mutilated and badly beaten north of the Border — care had been taken not to use a firearm. I believe the provisions I have made are reasonable. The detention periods are not as lengthy as those suggested by the late Eamon Leahy in his report. On the other hand, they cover a greater variety of offences than his report suggested. I believe we should leave it the way I have proposed.

In that context, will the extra detention periods not be used unless there are video-taping facilities?

I am not accepting Deputy Howlin's amendment. As a matter of law it is becoming increasingly academic because nearly every Garda station with a custody suite has audio-visual facilities. There are difficulties in cases where evidence is produced concerning statements made by an accused person under lengthy detention in a Garda station with no video-recording facilities. The Judiciary is moving rapidly towards this proposition. It often demands an explanation in cases where there is an absence of a proper recording in circumstances such as these.

A Cheann Comhairle, I am sorry for disaggregating the two amendments.

The case has not been made as to how this change can have a major bearing on investigations. Concerns have been expressed about prolonged periods of detention which have led to extra duress for individuals, leading to unsafe convictions. Several bodies have raised questions about the proposal. I do not believe the Minister has made the case properly on this issue.

As amendment No. 35 proposes to delete certain words from section 9 that amends section 4 of the 1984 Act, it is a pity we will not deal with amendments Nos. 36 and 37 because they propose to insert words in the section. They contain safeguards in the event the Minister proposes to go ahead with the section's provisions. The Minister should have considered these before seeking extra detention periods. In other jurisdictions where there are prolonged periods of detention, those detained have access to their solicitors and are advised by them during interrogation. The practice in this jurisdiction is for the solicitor to appear at the station only to make certain recommendations to the arrested person.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendments Nos. 36 and 37 not moved.

Amendments Nos. 39, 40 and 403 to 405, inclusive, are related to amendment No. 38. Amendment No. 404 is an alternative to amendment No. 403. All the amendments will be discussed together.

On a procedural note about the previous amendments, a Cheann Comhairle, I assumed when I alerted the Chair that I wanted the question disaggregated that it would not be put in a way so as not to allow discussion on the video-taping issue.

Amendments Nos. 35 to 37, inclusive, were grouped together. The Deputy proposed we take them separately.

Out of good courtesy, Sir, I thought if they were not going to be discussed, you could have alerted me to that fact.

The Deputy made the point that amendments Nos. 36 and 37 would fall if——

No, if the amendment was carried, and it was not carried.

The question was carried.

The actual words I wish to amend still stand in the Bill.

The Chair has no problem if the Deputy wants to——

It is an important issue.

I presume that is the reason they were grouped together.

A Cheann Comhairle, the problem arises from the fact that you put the question in the negative. The question was "That the words proposed to be deleted stand", which knocked Deputy Howlin out.


The Chair regrets misleading the Deputy.

It is not a matter of misleading. I raise this because it is an important issue.

I do not disagree with the Deputy. The amendments, however, were grouped together. Deputy Ó Snodaigh's amendment proposed to delete words from the Bill.

I do not wish to take up the time of the House. However, I was in favour of the Minister's proposition in section 9, but I wished to insert safeguards. That is a different position from deleting the additional time an individual can be kept in custody. May I still address the issue of my amendment?

It was agreed.

The formula used was that the words proposed to be deleted stand. The question was declared carried and the amendment declared lost. Therefore, the words my amendment proposes to insert are still contained in the Bill. They would not be there if Deputy Ó Snodaigh's amendment was agreed. We are making law and the issue my amendment deals with is a fundamental one rather than a technical one. If we are introducing provisions to keep people in custody for rolling periods of 12 hours, which I support, I want the safeguard that they can only be detained in Garda stations where video equipment is operable. My amendment No. 41 proposes that evidence that is not video-taped cannot be admissible.

For the sake of clarity, I thought I dealt with the Deputy's amendment.

The Minister dealt with the amendment. Deputy Ó Snodaigh seemed to have discussed the three amendments and the Minister replied to them.

If the Ceann Comhairle had indicated to me that this was my one opportunity to discuss the matter, I would have addressed it more directly.

If it is any consolation to the Deputy, I would not have accepted his amendment for the reasons I stated in any event. I know he did not have an opportunity to discuss the issue.

I regret the Minister did not have the opportunity either. I would have liked to press the point by way of argument.

I accept that.

Would the Minister have accepted my amendment No. 37?

No, on principle I would not have.

I will address the matter under amendment No. 41.

I have some difficulty with the Minister's logic. Mine must be at fault as I am sure his is correct. On the one hand, he stated video-taping will be available in nearly all Garda stations, yet the detention period will exist where there are no video facilities in certain circumstances. On the other hand, he claims it does not matter because if that happened, the evidence acquired during that period would be inadmissible.

I do not want it to be part of the law because there could be some extreme case in which, for instance, the video camera collapsed but it was still necessary to carry on the investigation. I do not want to go through all the examples but a case could arise. It is my understanding that the majority of Garda stations where individuals are detained have audio-visual equipment installed. Regarding an individual detained for a long period, unless an extraordinary reason was put forward, the Judiciary would be reluctant to accept alleged admissions by an accused where there is no audio-visual evidence. I do not want to seal that shut, particularly in circumstances where it may render an injustice to an individual. I do not want the absolute law to be if, for instance, the equipment was damaged in a station, the detention would become invalid. That is the only worry I have.

I accept Deputy Howlin's point but it is a matter for a forum other than here because there are many amendments and we should stick to them. A decision has already been made that the words proposed to be deleted stand.

Very good.

I move amendment No. 38:

In page 22, to delete lines 43 and 44 and substitute the following:

"(a) in section 2—

(i) in subsection (1), by the substitution of the following paragraph for paragraph (a):".

The related amendments, Nos. 39 and 40 and 403 to 405, inclusive, are grouped with amendment No. 38. I move amendments Nos. 38, 39 and 403.

Only one at a time.

I will do so. I am speaking on amendment No. 38 but I will also discuss amendments Nos. 39 and 403.

During the Committee Stage debate I indicated I was considering bringing forward an amendment to address the issue that arose in the aftermath of the murder of Donna Cleary which was an appalling event of recent times. The House will recall that the continued detention of a suspect in that case under section 30 of the Offences Against the State Act 1939 was held to be unlawful because the original period of detention had expired before the court hearing to extend the period of detention had concluded. This judgment has implications beyond the 1939 Act and the detention provisions in section 2 of the Criminal Justice (Drug Trafficking) Act 1996 are also affected.

Amendments Nos. 39 and 403 to sections 10 and 184 of the Bill propose amendments to the relevant provisions of the 1996 and 1939 Acts which will address this issue. The amendments provide that where the period of detention permissible under the relevant provisions has not expired at the commencement of the court hearing for the application of an extension of the detention period but would expire during the hearing the period shall be deemed not to expire until the application for an extension has been determined. The Garda will continue to be obliged to bring the suspect before a judge before the detention period expires and in this way no appreciable increase in time spent in Garda custody will result from this amendment. The approach I have adopted in my amendments goes no further than what is necessary to rectify the problem that arose. Deputy O'Keeffe has tabled amendments Nos. 40 and 405, which are similar in substance. While I accept the principle behind these amendments, I prefer the drafting of the Parliamentary Counsel.

Amendment No. 39 amends section 2 of the 1996 Act by inserting a new subsection 7A which provides that notwithstanding subsection (2), which allows detention for a period of up to 48 hours, and subsection (7), which states, in order to avoid doubt that the maximum period of detention allowed under section 2 is 168 hours excluding rest periods, where an application is made under subsection (2) for a warrant authorising the detention for a further period of a person detained under that subsection, and the period of detention under that subsection has not expired at the commencement of the application but would, but for this subsection, expire during that hearing, it shall be deemed not to expire until the determination of the application.

Amendment No. 403 amends section 30 of the 1939 Act by the insertion of a new subsection 4D, along the same lines as new subsection 7A of the 1996 Act. A consequential amendment is necessary to section 30A of the 1939 Act. Section 30A which was inserted by the Offences against the State (Amendment) Act 1998 provides for the rearrest of a person who has been detained under section 30. Section 30A(2) provides for the application of section 30, subject to certain modifications including that subsections 4, 4A, and 4B do not apply. It is necessary to amend this subsection to provide that the new subsection 4D does not apply either. Paragraph (b)(i) of my amendment achieves that end. Paragraph (b)(ii) is simply a restatement of subsection (3) of section 184 of the Bill. I commend these amendments to the House.

Amendment agreed to.

I move amendment No. 39:

In page 23, between lines 15 and 16, to insert the following:

"(ii) by the insertion of the following subsection after subsection (7):

"(7A) Notwithstanding subsections (2) and (7), if—

(a) an application is made under subsection (2) for a warrant authorising the detention for a further period of a person detained under that subsection, and

(b) the period of detention under that subsection has not expired at the commencement of the hearing of the application but would, but for this subsection, expire during that hearing,

it shall be deemed not to expire until the determination of the application.",".

Amendment agreed to.
Amendment No. 40 not moved.

I move amendment No. 41:

In page 24, between lines 25 and 26, to insert the following:

"12.—Save with the leave of the court which may be given only if the exceptional circumstances of the case so require, a statement by a person during a formal interview in Garda custody shall not be admitted in any prosecution against that person unless the interview is videorecorded and such videorecording is produced at the trial.".

This allows me to deal briefly with video-taping. It was linked to the requirement that detainees would be held in Garda stations equipped with audio and video-recording equipment. The amendment states: "Save with the leave of the court which may be given only if the exceptional circumstances of the case so require, a statement by a person during a formal interview in Garda custody shall not be admitted in any prosecution against that person unless the interview is videorecorded and such video-recording is produced at the trial".

I am fully aware of the downside of failures of video-recording etc. but if we are to have confidence in the legal system it should be the discipline to require whatever backups and supports exist to ensure one does have functioning video equipment in Garda stations and that one can produce the result of the interview. The notion that the equipment broke down is like the excuse that the dog ate my exercise book. There needs to be a requirement to safely ensure the recording of interviews. I do not wish to refer again to the Morris tribunal, but concerns exist and if we are going to give significant powers to the Garda we need to balance that with ensuring there is proper recording.

On Committee Stage the Minister referred to European comparisons that were much more draconian but the detention measure is significant in our context and tradition. It is accepted across the House that this protects not only the people being interviewed but the interviewers as well against malicious or false claims of mistreatment or ill treatment subsequently. This should be set down in legislation so that everybody knows the ground rules and there should be a requirement for it. The Minister said there may be a malfunction or some other awful thing could happen, but it is true of everything we lay down in law that there could be some slip-up and there probably will be some cases where we will throw our hands up but the requirement to record should be mandatory because the generality of it will protect both the Garda and people who are called in for interview.

I accept that a significant expansion of the service is taking place. I take the opportunity to abuse the position to refer to Wexford Garda station which is listed among the ten worst in the country. As a divisional headquarters it really is a disgrace. We do need proper facilities for the Garda. There is no point in saying one can detain people if there is not enough space to interview anybody never mind videotape anybody. We need to ensure proper modern facilities are provided for the Garda to conduct business in an appropriate way.

Based on the complaints I get about decent customer services when people visit Garda stations, customer relations must be put higher on the agenda of the training regime. However, that is a matter for another day. I do not wish to introduce a less important issue into what is a very important issue, namely, ensuring that people properly in custody for protracted periods of time will be assured that their interviews are video-recorded and that in the absence of video-recording their testimonies will not be used in a court against them.

I am sympathetic to the general principle of what the Deputy has mentioned. Nearly everybody in this House has had the experience of being interviewed by a journalist and being told that they have to come back again because the interview has collapsed as the tape recorder was not working. That has happened to me on a number of occasions in the lifetime of this Dáil.

The Minister does not need a tape recorder.

These things just happen. That is the way things are. The Judiciary is moving to the point that Deputy Howlin wants to be recognised in his amendment. I am happy that this is the case. I am not in any way worried by the fact the Judiciary is pressing for a general rule of recording where it is appropriate. I am not against that at all but I will give the Deputy this reasonable example.

A situation could arise where an interviewee's statement is taken down in writing and also video-recorded but it is subsequently discovered that the video machine has malfunctioned. In such circumstances, if there is definitive corroboration of the truth of the detainee's statement such as, for example, the discovery of the weapon used in a murder hidden under a stone in a particular place, as the interviewee said it would be in his or her confession, the public would be outraged if there was an absolute rule that the evidence must be discarded because the machine has malfunctioned.

Gardaí might be acting entirely in good faith in relying on the machine to be recording the interview. According to this amendment, however, if the machine malfunctions, evidence obtained through that interview, no matter how cogent and incontrovertible, would be thrown out and the relatives of a deceased person left with no remedy in law. We must be careful in proposing such changes. The Judiciary can be relied upon in this matter and the issue of admissibility should be left to its members to decide. They are flexible but also vigilant.

There is no safeguard in any legislation against which one could not make the type of case the Minister just made. There will always be the possibility that an injustice could arise. If such safeguards are not included, however, even more injustices could arise. One cannot argue against the inclusion of safeguards because, in this case, the videotape could malfunction mar dhea.

That is a matter for the judge to decide.

It is a matter for us to lay down the law in this regard. If we are all of the view that interviews should be recorded, then there should be an onus on somebody to ensure the video machine is working and, if necessary, that a back-up machine is available. It is a disciplinary matter for the Garda to ensure it carries out these procedures correctly. I agree with the Minister that we should not put trip-wires in the way of getting at the truth. It is a question of maintaining a balancing act. We have seen in other circumstances that when people are given a get-out clause, they inevitably use it. I could give chapter and verse on the other side of this situation which is that innocent people have found themselves terribly damaged.

Murphy's Law dictates that a case will arise where a video recorder ceases to function and problems arise because some evidence has gone unrecorded. As the Minister knows better than us mere mortals, this is the way the legal system operates. One encounters obstacles and the law takes its course and sometimes an injustice is done. We must constantly strive to attain the correct balance. The system is imperfect by definition and we will not succeed in creating a perfect model. In view of the increased powers we have given to the Garda in terms of the timeframes within which people may be held in custody, however, it is important that we include robust safeguards to which gardaí are aware they must adhere.

The many good legal advisers available to the Deputy will tell him that we have already arrived virtually at that point in regard to established jurisprudence by the courts. I do not want to impose an absolute and inflexible rule where the courts themselves have not gone that far. I appreciate the Deputy's point and have great sympathy with his argument that gardaí should realise there is no point in questioning a detainee who is held for a long period in custody unless the video-recording machine is functional. The Judiciary has also arrived at that general proposition but has not put it in the absolute black and white terms the Deputy proposes. I do not want to take such an approach.

I take the Deputy's point that we must try to establish norms to which people must aspire. In regard to the example I gave, the Deputy might say hard cases make bad law. This may be so. However, we should remember a recent extraordinary case. If anybody had claimed in this House five years ago that a situation could arise where a garda seeking an extension against a person under the Offences against the State Act would be obliged to ask a judge to hurry up and make up his mind because the time was running out, most of us would have considered it highly unlikely. Such scenarios do, however, arise.

I have done my best to convince the Minister on this point.

Amendment, by leave, withdrawn.

Amendments Nos. 42 and 43 are related and may be taken together.

I move amendment No. 42:

In page 24, to delete lines 37 and 38 and substitute the following:

"(3) An authority undersubsection (2) may be given orally but, if it is given orally, it must be confirmed in writing within less than 12 hours of the oral authority.”.

This amendment proposes to replace the phrase "as soon as practicable" in subsection (3) of section 12 with the words "within less than 12 hours of the oral authority". The phrase "as soon as is practicable" is far too open to abuse. In a Bill that is otherwise littered with time definitions, it is more than pertinent to include such a definition in this instance. A period of 12 hours is more than adequate for this purpose.

Amendment No. 43 proposes a change to subsection (5) to the effect that a person who refuses to allow himself or herself to be photographed should be liable on summary conviction to a fine not exceeding €200 rather than a fine not exceeding €3,000 or imprisonment for a term not exceeding six months or both, as currently provided. This amendment reflects the reality that a person who refuses to be photographed may be accused of only a minor offence. In such instances, a fine of €3,000 and a prison sentence of six months might be out of line with the original offence. Furthermore, the proposed fine of €3,000 seems out of line with the lesser fines in place for more serious crimes.

I do not propose to accept these amendments. In regard to amendment No. 42, the phrase "as soon as practicable" has a legal sense. The Judiciary knows what is meant by it and will apply it sensibly in individual cases. A 12-hour limit may not be as soon as practicable in some cases and may be more than is practicable in some extreme cases. It does not add much to the provision to impose a 12-hour limit.

Amendment No. 43 would facilitate those camera-shy villains who wish to pay for the right to refuse to be photographed without the fear of being imprisoned for doing so. The only people I imagine would benefit by the Deputy's amendment are rich thugs who, for whatever reason, want to avoid having their photograph taken. The possibility that people might be obliged to spend a week, month or three months in Mountjoy Prison if they do not agree to be photographed may be far more coercive than the notion that they can simply go to their stash of cash and pay the State for the privilege of not being photographed.

Amendment, by leave, withdrawn.
Amendment No. 43 not moved.

Amendments Nos. 44 and 45 are related and will be discussed together.

I move amendment No. 44:

In page 25, to delete lines 10 to 13, and substitute the following:

"six months",

(ii) by the substitution of the following subsections for subsection (3):

"(3) Where proceedings have been so instituted and—

(a) the person is acquitted,

(b) the charge against the person in respect of the offence concerned is dismissed under section 4E of the Criminal Procedure Act 1967, or

(c) the proceedings are discontinued,

the destruction shall be carried out on the expiration of a period of 21 days after the acquittal, dismissal or discontinuance, as the case may be.

(3A) For the purposes of subsection (3)(b), a charge against the person in respect of the offence concerned shall be regarded as dismissed when—

(a) the time for bringing an appeal against the dismissal has expired,

(b) any such appeal has been withdrawn or abandoned, or

(c) on any such appeal, the dismissal is upheld.”,


(iii) in subsection (7)—

(I) by the substitution of "for a period not exceeding twelve months" for "for a period not exceeding six months", and

(II) by the substitution of "for the purpose of proceedings or further proceedings" for "for the purpose of further proceedings",".

The purpose of amendments Nos. 44 and 45 is to restate the position with regard to the destruction of photographs, fingerprints, palm prints and forensic samples taken from a detained person in circumstances where the book of evidence is not ready for service and the court strikes out the charge. The necessity for these amendments was brought to my attention by the Office of the Director of Public Prosecutions.

Section 6 of the 1984 Act provides for the power to take photographs, fingerprints and palm prints relating to a detained person. The necessary provisions on destruction are contained in section 8 of that Act. Section 2 of the Criminal Justice (Forensic Evidence) Act 1990 allows for the taking of forensic samples with the necessary provisions on destruction contained in section 4 of that Act. Section 8(3) of the 1984 Act currently provides that the destruction of records taken under that Act shall be carried out in circumstances where proceedings against the person have been instituted and the person acquitted or discharged or the proceedings discontinued. Section 4(3) of the 1990 Act makes similar provision in respect of the destruction of forensic samples under that Act.

A judgment in 2004 demonstrates that things happen which nobody could ever predict, and certainly nobody predicted this would happen in 1984. In a 2004 judgment, the Court of Criminal Appeal, in the case of the peoplev James Bowes, decided that the word discharge in section 8 of the 1984 Act is to be interpreted as encompassing a situation where the court strikes out the charge because the book of evidence was not necessary. It was argued in the case that the words “acquitted” or “discharged” or “the proceedings are discontinued” were intended to cover situations where the prosecutions effectively come to an end and not the circumstance in which the charge was struck out due to a delay in serving the book of evidence.

Prior to the judgment in this case, such records were not required to be destroyed upon the making of an order striking out charges due to a delay in service of the book of evidence. That was not the practice. Where there was a delay in service of the book of evidence and the charge was struck out, the records were used for the purpose of the subsequent reinstituted proceedings. The striking out of proceedings in circumstances where the book of evidence is not ready is without prejudice to proceedings against the accused person being taken again.

Some uncertainty appears to have been created with the abolition of preliminary examination before a district judge in the Criminal Justice Act in 1999. Prior to the introduction of those provisions, the term "discharge" was interpreted in accordance with the provisions of the Criminal Procedure Act of 1967. It therefore referred to circumstances in which the accused was discharged on the basis that there was not a sufficient basis to return him or her for trial. With the introduction of the 1999 Act, this procedure was replaced with a procedure whereby the court shall dismiss the charge in circumstances where there is not a sufficient case to put the accused on trial. In bringing forward the procedural change in 1999, the terminology changed and this appears to have contributed to the uncertainty created.

The new subsection (3) provides for an insertion into the 1984 and 1990 Acts which will restate the current provisions in these Acts but with reference to the term "discharged" being replaced by the more correct reference to proceedings introduced in the 1990 Act being dismissed under section 4E of the Criminal Procedure Act of 1967. In addition, a timeframe of 21 days for the destruction of samples has been included in the 1984 Act. This will bring the Act into line with the provisions of the Criminal Justice (Forensic Evidence) Act 1990. A timeframe gives greater clarity regarding the duty to destroy records and samples.

A new subsection (3A) is being inserted in both Acts to take account of the prosecution's right to appeal against the dismissal of the charge. This right of appeal is set out in section 4E(7) of the 1967 Act.

Amendment No. 44 paragraphs (iii) (I) and amendment No. 45 paragraph (b)(i) restate an amendment agreed on Committee Stage extending the time period for which a court may authorise the retention of records and samples from six to 12 months. Amendment No. 44 Paragraph (ii) is a drafting amendment clarifying that an application for the retention of records may be made for the purpose of current proceedings or further proceedings relating to an offence.

In 1984 everybody thought the legislation was good but they found out in 2004 that it was not so good. Due to changes in the interpretation of a particular term, the destruction provisions meant that where a district judge said, "I am discharging this accused, you can come again if you want", that did not save the fingerprints, palm prints or samples on which the prosecution was based.

I accept that at all stages we must check the law and ensure that any loopholes that have been or are likely to be disclosed are closed. The same applies with regard to the debate we had earlier on the Criminal Law (Home Defence) Bill.

The ingenuity of defence lawyers never ceases to amaze me.

The only complaint I have is that these amendments are quite complex and technical and should have been teased out on Committee Stage. To a degree, we must take the Minister on trust that they are the full shilling, as presently drafted. We do not have the opportunity to tease out the detail of them at this stage. However, on the basis of the Minister's presentation, it appears that the amendments are justified and I am prepared to agree to them.

Amendment agreed to.

I move amendment No. 45:

In page 26, to delete lines 25 to 27 and substitute the following:

"(b) in section 4—

(i) in subsection (2), by the substitution of "within twelve months from the taking of the sample" for "within six months from the taking of the sample", and

(ii) by the substitution of the following subsections for subsection (3):

"(3) Where proceedings have been so instituted and—

(a) the person is acquitted,

(b) the charge against the person in respect of the offence concerned is dismissed under section 4E of the Criminal Procedure Act 1967, or

(c) the proceedings are discontinued,

the destruction of the record and the sample identified by such record shall be carried out on the expiration of twenty-one days after the acquittal, dismissal or discontinuance, as the case may be, unless an order has been made under subsection (5) of this section.

(3A) For the purposes of subsection (3)(b) of this section, a charge against the person in respect of the offence concerned shall be regarded as dismissed when-

(a) the time for bringing an appeal against the dismissal has expired,

(b) any such appeal has been withdrawn or abandoned, or

(c) on any such appeal, the dismissal is upheld.“,”.

Amendment agreed to.

I move amendmentNo. 46:

In page 26, to delete lines 31 to 38 and substitute the following:

"(aa) make provision for the safeguards outlined in Schedule 1* of the Criminal Justice Act 2006.”.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.

I move amendmentNo. 47:

In page 26, between lines 38 and 39, to insert the following:

"(d) in section 5(2) by the insertion of the following paragraph after paragraph (b):

(c) In determining whether the carrying out of a forensic procedure without consent is justified in all the circumstances the superintendent or Garda of higher rank shall have regard to the following:

(i) the seriousness of the circumstances surrounding the commission of the relevant offence and the gravity of the relevant offence;

(ii) the degree of the suspect's alleged participation in the commission of the relevant offence;

(iii) the age, physical and mental health, cultural background and religious beliefs of the suspect, to the extent that they are known;

(iv) whether there is a less intrusive but reasonably practicable way of obtaining evidence tending to confirm or disprove that the suspect committed the relevant offence; and

(v) where the suspect gives reasons for refusing to consent, the reasons for refusing.".".

Section 14, which we address here, allows for the taking of bodily samples, mouth swabs and saliva without consent and allows the authorities to keep these samples for a year, even where a person has not been charged with a crime. The Human Rights Commission has raised a number of serious concerns about this proposal. In its view, it lacks adequate safeguards.

What I am trying to do with this and previous amendments is to insert some safeguards into the legislation. The Minister has previously stated that he will deal with ministerial regulations and I have tabled an amendment to deal with that matter also.

The amendment is self explanatory. It outlines what a garda, of at least superintendent rank, must have regard to before making a decision to take such bodily samples as are deemed to be required for the pursuance of an investigation. The factors are mostly common sense and are ones a garda would generally take into account. They include the age, physical and mental health of the suspect and so forth. By stating the factors clearly in the law, we are not leaving it to chance that they are taken into account. That is all the amendment aims to do. It provides safeguards and ensures that any regulations that this or a future Minister may draft are already tied to what has been included in the legislation. I urge the Minister to accept the amendment.

While I accept what the Deputy says about the concerns of the Human Rights Commission, there are more than the accused's human rights to be concerned with. The human rights, for instance, of victims of child sexual abuse and serious assault and the relatives of victims of homicides must be taken into account, as well as the human right of the rest of the community to have an effective system of law. Some people seem to think that human rights centre on accused persons. If one consults Article 40 of the Constitution, one sees that the State is obliged to uphold everyone's human rights. The focus sometimes slips so that we begin to discuss rigid exclusionary rules and massive safeguards for people suspected of having committed serious offences while stripping away reasonable measures to bring people to justice, the ultimate human right for victims of crime. I do not wish to sound dismissive of human rights, but they apply across the board. The human rights of someone mugged in the street are violated, but those of the alleged mugger may or may not be violated by how that person is dealt with in the criminal justice process.

The State has an obligation to both of those people rather than simply to one. We would otherwise have an ineffectual criminal justice system. I listened to Deputy Kenny's comments about rebalancing the system, and Prime Minister Blair says the same in the United Kingdom. If we constantly concentrate on the human rights of alleged perpetrators and never on those of victims, we skew the whole language of such rights.

Deputy Ó Snodaigh has mentioned that some things may infringe human rights or have certain implications. I would be much more impressed if he said that something represented a clear violation. In a phrase I used on another occasion relating to the Human Rights Commission, tendentious remarks are made that something may have a certain effect, but it is also the case that it may not. If the Human Rights Commission is of the opinion that a measure is not justified by reference to human rights considerations, it should say so rather than advancing a tentative position that something could have human rights implications and leaving it out for Deputy Ó Snodaigh to attend the House and say that the Human Rights Commission has said something is not necessarily the best way to deal with such issues. We all have human rights and rely on the Garda to protect them. It can only do so if it has effective means at its disposal, both preventative and detective, regarding crime. I make the point that we seem to be losing our focus.

The second thing is that taking a swab with a cotton bud from the inside of someone's cheek is a hell of a lot less invasive than keeping someone in a cell for 12, 24 or 36 hours. This set of proposed safeguards is not applied in those circumstances. Therefore, I do not know why we are so afraid of DNA sampling but quite happy to force someone to stick his or her finger on an ink pad and put it on a piece of paper, or to provide a palm or footprint. What is so different about a swab in one's mouth? We seem to have a phobia about any new technology that is effective. It is not the case that substantial numbers of crimes are being solved using DNA evidence, although I believe that we will have far more extensive use of DNA. In the context of a database being provided for in the rebuilding of the Forensic Science Laboratory at Garda headquarters, I have great hopes that it will happen.

This is rather ritualistic stuff. If taking a swab requires so urgently to be circumscribed by so many protections, why is that not so with taking a hair sample or the print of a finger, thumb or palm? What is it about DNA that has everyone up in arms compared with other legitimate investigative techniques? The Deputy will appreciate that I do not propose to accept the amendment.

After that rant, where does one go?

The Deputy should try another one.

No, it is not another one. If the Minister had read the amendment, he would have seen that it is quite reasonable, since it refers to the seriousness of the circumstances in the instances of which he has spoken and the degree of the suspect's involvement.

What have the religious beliefs of an accused person to do with whether he or she should give DNA?

It is to do with whether they open their mouths.

It also refers to determining whether carrying out the forensic procedure without consent is justified.

Is one to have an inquiry into the accused's religious beliefs?

Another issue is whether there is a less intrusive but reasonably practical way of obtaining evidence.

I am not saying that evidence should not be gathered. My proposal quite rightly attempts to amend this section in this instance rather than deleting it, adding conditions that must be taken into account. That is all, and no one, by adopting this, would detract from the victim's human rights. One is talking about a suspect, and people must remember that. It is a pity that the Minister, when dealing with "shall" and "may" in parts of other legislation, did not take on board what he said about the Human Rights Commission.

I am pressing for regulations and safeguards to be put in place. That is all they are, since they do not prevent investigations and are not intended to be awkward. If gardaí are trained to carry out their duties properly, there will be no question regarding the operation of this law or the gardaí themselves. This kind of safeguard is required specifically because of the abuse of people in Garda custody.

The Deputy's two minutes are concluded.

I was going to finish rather than going back again. I have a right to reply, so I can sit down and start again.

I was about to finish by saying that it is a pity that the Minister has rejected out of hand safeguards such as these, dismissing what the Human Rights Commission had to say. I am not expert in this field since, like the Minister, I accept advice from those tasked to inform us or raise questions about legislation. That is literally what we are doing to make the best possible legislation in this House.

I have no problem with people raising issues brought up by the Human Rights Commission. However, where tendentious remarks are put into the public domain to the effect that something may be an infringement of international or domestic human rights provisions, I would much prefer them to say that they believed it to be such. When they come down on one or other side of the equation, I am more impressed. At the time of the constitutional referendum, an argument was addressed by the Human Rights Commission that it might infringe the rights of people born in Ireland.

Are 400 amendments not enough to keep us focused without raising amendments to the Constitution?

If the Human Rights Commission is of the solid belief that something infringes human rights, let it say so. If it does not believe that, let it state so too. The notion that something may infringe human rights is made public, and we are left to deal with it, which is unsatisfactory. If it reaches the opinion that something might be an infringement but that on balance it agrees with the Minister that it is not, let it say so. If something might be an infringement and the Human Rights Commission believes it is, let it say so. The unelaborated notion that something may be an infringement leaves everyone with a question mark, despite the fact that commissioners are selected on the basis of experience in the area. We need their clear and unambiguous opinions in future.

It is not always black and white.

Amendment put and declared lost.

Amendment No. 48 has already been discussed with amendment No. 7.

I move amendmentNo. 48:

In page 26, between lines 38 and 39, to insert the following:

"(2) Any Ministerial regulations arising from this section shall require the approval of both Houses of the Oireachtas.".

Amendment put and declared lost.

Amendments Nos. 52, 54 and 55 are related to amendment No. 49. Amendments Nos. 51 to 54, inclusive, are alternatives to amendment No. 50. Amendments Nos. 49 to 55, inclusive, will be discussed together.

I would object but I would be afraid to do so.

Let us leave them all together.

Leave them together.

I move amendment No. 49:

In page 27, between lines 9 and 10, to insert the following:

""statutory declaration" includes a statutory declaration made undersection 17 or 18;”.

On Committee Stage on 19 April 2006, I indicated that I would give further consideration to a number of issues that arose in the context of Part 3. I cannot remember whether it was Deputy Jim O'Keeffe or Deputy Howlin who stated that there was a lack of joined-up cross-referencing in the section. Amendment No. 49 aims to deal with this.

In respect of amendment No 52, I indicated on Committee Stage that I would consider further amendments to section 76, which was put forward in Deputy Howlin's name. Deputy Howlin proposed that section 16 should explicitly state at the outset that prior witness statements can only be admitted by leave of the court. While section 16 does not explicitly state that the leave of the court is required, it is clear that the section could not operate in any other manner, particularly when section 16(2)(b) and section 16(4) are considered. These provisions refer to the court being satisfied with and having regard to certain matters. Notwithstanding that, I am proposing that the words “with the leave of the court” be inserted in section 16(1) for added clarity and to satisfy Deputy Howlin on the matter.

In respect of amendment No. 54, I raised a concern on Committee Stage with regard to the meaning of the phrase "any fact" as it appeared in section 16(2)(b)(i). This provides that before admitting prior witness statement, the court must be satisfied that direct oral evidence of any fact mentioned in it would be admissible in the proceedings. It emerged during the debate that the phrase “any fact” could have three possible meanings. It could mean every fact, any single fact or the facts sought to be relied on by the prosecution. There is an ambiguity in the current text. I am, therefore, proposing to amend section 54 to substitute the phrase “any fact mentioned in it” with “the fact concerned” so that subsection 2(b)(i) would read “that direct oral evidence of the fact concerned would be admissible in the proceedings”. Deputies will appreciate that at one stage, three different meanings emerged quite reasonably in respect of the same proposition and that it is worthwhile introducing this amendment.

These matters may be the subject of judicial consideration at a later stage. The phrase "the fact concerned", which, having regard to the Interpretation Act, includes the plural, must be read in the light of subsection (1), which states that a statement which includes part of a statement, as defined in subsection (16), may be admitted in accordance with this section as evidence of any fact mentioned in it if the witness, although available for cross-examination, refuses, among other things, to give evidence. Reading subsections (1) and (2) when revised as proposed together, it is clear that only those facts contained in the statement or part of a statement of which direct oral evidence would be admissible may be admitted with the leave of the court, subject to the fulfilment of the other criteria in the section. These amendments bring additional clarity to this part and I commend them to the House.

Amendment No. 51 would limit the scope of the new provisions to witness statements that are contained in the book of evidence. I do not propose to accept this amendment because not all statements are contained in the book of evidence. On some occasions, only an edited version of a statement is included in the book of evidence. Additional documents, including further witness statements, may be served on the accused or his or her solicitor after the serving of the book of evidence. Specific provision is made for this procedure in Part 1A of the Criminal Procedure Act 1967, which is inserted by section 9 of the Criminal Justice Act 1999. Therefore, to insert a qualification as proposed would have the effect of narrowing that section unduly. It is also sometimes the case that the prosecution may, in the course of a trial, decide not to call certain witnesses. However, it is worth adding that nothing in this section in any way changes the existing requirements for full disclosure of all relevant evidence by the prosecution to the defence.

Amendment No. 50 seeks to delete section 16 in its entirety. Section 16, which is at the heart of this Bill, provides for the admission of previous admission in evidence of previous witness statements and is an essential element of our response to a worrying recent development. We are all aware that proceedings in significant cases were grossly hindered by the withdrawal by some witnesses of statements made in the course of the investigation. It is not an exaggeration to say that there was a sense of public outrage about this development. It is essential that the Oireachtas is seen to respond in an effective but measured and constitutional way to this issue. Part 3, with the drafting amendments I have brought forward, meets this requirement in a moderate and reasonable way.

I acknowledge that Part 3 marks a significant departure from the common law rule that a previous statement made to the Garda cannot be admitted in evidence as proof of any facts contained in it. The effect of this rule is that the fact that a witness may have previously said something different can only be used to attack the credibility of the witness but that the assertions of any earlier statement can never constitute proof of these assertions. The basis of this approach is the constitutional right to trial and due process. Due process requires that the defence has the right to be presented with evidence in court by a witness who can be cross-examined and his or her demeanour and credibility assessed by the court. The requirement that the defence must at some point during the proceedings have the right to challenge and question a witness is guaranteed by the European Convention on Human Rights and reflected in the judgments of the European Court of Human Rights.

Aspects of the rule were previously changed by statute, for example, in respect of statements by witnesses who died or may have been intimidated. Part 3 further amends the law to provide for the admissibility under strict conditions of previous witness statements in criminal cases, taking account of precedents in other common law jurisdictions but drawing in particular on an approach adopted in Canada. In a majority judgment in the case of Rv B, the Supreme Court of Canada ruled that a previous statement can be admitted if it would otherwise be admissible as the witness’s oral evidence and if the judge is satisfied that indicia of reliability are present and genuine. They are that the witness must have been warned about the necessity to tell the truth and the consequences of not doing so and that his or her statement was made on oath or solemn affirmation and was video recorded or that other substitute indicia were established. The judge must also be satisfied that the statement was made voluntarily and that there are no factors which would tend to bring the administration of justice into disrepute.

In coming to this conclusion, the Supreme Court of Canada was very careful to ensure, in particular, that the witness could be subject to contemporaneous cross-examination from the defence, which is what we envisage here, and that the jury would have the opportunity to examine not just the words of the witness but his or her demeanour. The court was satisfied that any concerns could be adequately dealt with by the fact that the witness would be available for cross-examination in court in respect of the previous statement and that a video recording of the original statement would be available.

Part 3, in particular section 16, follows this approach, allowing for the admission of the previous statement, while at the same time providing safeguards against the dangers which necessitated the original exclusionary rule. I am satisfied that the safeguards which are included in this respect are the strongest possible safeguards to ensure that unreliable evidence is never admitted under this provision. Of particular importance in this respect is the requirement that the witness be available in court for cross-examination. In addition, in assessing the reliability of the evidence, the court must have regard to whether it has been video recorded and is obliged not to admit it if, in the interests of justice, it decides that it should not be admitted. Therefore, I do not propose to accept the proposal to delete the section.

Amendment No. 55 seeks the deletion of section 18. This section simply extends the power to receive statutory declarations to competent persons who are defined as the employees of a range of public authorities. The reason for the inclusion of this section is that section 16(2) refers to statements made on oath or affirmation containing a statutory declaration or made in circumstances where the witness understood the requirement to tell the truth and contains no limitation in so far as to whom the statement must be made. The extension of the power to receive statutory declarations to the Garda Síochána in section 17 and all public authorities in section 18 flows from section 16(2)(c). It means that there is a mechanism that can be used by public authorities, for example, the Revenue Commissioners, much of whose work is investigative, to show that those making statements to them understood or should have understood the requirement to tell the truth.

Having regard to the difficulties in identifying a comprehensive list of public bodies which take statements that could be relevant to criminal proceedings, the approach in section 18 is to define public authorities in broad terms. It will be a matter for each public authority to decide whether it will avail of this power.

I emphasise that section 18 only allows the employees of public authorities to receive statutory declarations. In the event that a statement contains a statutory declaration and is subsequently relevant to criminal proceedings and recanted, it will be a matter for the court to decide within the parameters set out in section 16 as to its admissibility. Amendment No. 49, which provides a definition of statutory declaration in section 16 to the effect that it includes a statutory declaration made under sections 17 and 18, clarifies the link to which Deputies Howlin and Jim O'Keeffe referred. For the reasons mentioned, I do not propose to withdraw the idea.

It is the most important section and the amendments to it are also important. I support the section, as the situation evident in recent cases in which witnesses suffered from amnesia must be confronted. The Minister has taken on board the beneficial and detailed debate on Committee Stage. While the amendments he proposes seem technical, they improve the section. In fact, one amendment coincides exactly with one of Deputy Howlin's amendments, which reinforces the view. The Minister's proposed amendments would improve the section and I am prepared to accept them and approve the section as amended.

I agree that this is an important section and we had some debate about it. It is quite difficult to craft a legal framework to deal with the issues that arose in open courts where people suffered from amnesia, that is, they were unable to remember evidence they had previously given in sworn statements. How to deal with such is a challenge that we must do our best to face. While it remains to be seen whether the instrument we had previously was perfect, it is probably flawed. As with all legislative attempts in this regard, there will be ways around it, but this section is an honest attempt to address a situation that has caused great public disquiet.

Many issues have been taken together. If anyone walked in and listened to the Minister's explanation, he or she would be bamboozled. The Minister spoke about indicia. In plain English, does he mean indicators?

That is also plain English. Perhaps the Minister should try——

"Indicators" is a longer term.

It is used more often in plain English. The Minister has rejected my amendment No. 51. In section 16(1) where it states: "Where a person has been sent forward for trial for an arrestable offence, a statement", I want to insert "contained in the book of evidence served on that person" after "statement" and before "relevant to the proceedings made by a witness". The Minister has accepted my amendment No. 53 relating to that section. The Minister explained that he will accept it more by way of courtesy than necessity. However, its inclusion is good enough for me and I will not be churlish and make more points in that regard.

The Minister is clearly more familiar with the courts system than I. While he may indicate otherwise, I am advised that the phrase I wanted to insert through amendment No. 51 is required to avoid ambush. The Minister has given assurances that all witness statements will be in the original book of evidence, but it is possible to issue new witness statements during the course of a trial. I am not sure how such works as I have no experience in these matters. I understood that the case needed to be laid out in advance and, where witnesses were to be called, the gist of their charges and statements needed to be laid out so that they could be rebutted.

The requirement provided by the amendment would not have caused difficulty, that is, to ensure that admitted witness statements were not produced out of the blue. Rather, they would be contained in the book of evidence. I must take the assurance of the Minister in that regard, but he might elaborate on what is normal procedure and give me an assurance that there will be no potential for ambush in the form of new witness statements being interjected in the middle of a trial, rather like Report Stage amendments in the face of the poor Opposition trying to cope with the Bill as already discussed.

I thank the Minister for accepting amendment No. 53. I do not know why he tabled his own amendment instead of accepting mine. Perhaps I have left out a comma or something.

I have no idea.

It would have been a bridge too far.

Was it a bridge too far to say that?

Normally, I would have accepted it. I do not know whether there was any difference between the amendments.

I am sure that there is a reason. Perhaps a comma or semicolon.

It was probably in respect of the guillotine in that it would make the issue more certain.

For the avoidance of doubt. However, the Minister could refer to certain amendments at the end of Report Stage. Indeed, I hope he will do so if there is a guillotine and we have not discussed all the amendments. If the House cannot discuss them all, the Minister might indicate tomorrow what later amendments he is minded to accept, which was a point made by Deputy Ó Snodaigh in respect of other amendments and one that I would not generally be in favour of as it forestalls the chance to make a case for amendments. He could depress Deputies by giving them that information.

I do not want to delay the House further other than to comment on section 16(3)(b) and the issue of witness demeanour. In respect of a court, it states:

and shall also have regard to—

(i) any explanation by the witness for refusing to give evidence or for giving evidence which is inconsistent with the statement, or

(ii) where the witness denies making the statement, any evidence given in relation to the denial.

It is important to include this provision. I am not sure how it will pan out in practice but, as constructed and amended, the section is an honest attempt to deal with a situation that has arisen and has caused great public disquiet. I am not sure whether it will meet the full requirements of the situation.

I have tabled two amendments to this section seeking deletions because the case has not been fully made. There have been concerns and incidents that were well rehearsed on Committee Stage wherein a number of recommendations were made in respect of the protection of witnesses to ensure that they could securely travel to and from courts and the duties of the State to witnesses.

Regarding witness statements, it is concerning that such are not made under the advice of counsel, nor are they always made in the full knowledge——

Is that legal counsel or army council?

Whichever one wants. Statements are not made with any counsel's advice, as witnesses may not necessarily have access to anyone. Statements are not made with the full knowledge of the consequences of making a false statement. Current practices and safeguards in respect of the taking of statements at Garda stations are not adequate, as has been found by Mr. Justice Liam McKechnie.

Reforming practices in respect of the taking of both witness and suspect statements is necessary to ensure sound convictions. Different people have made recommendations. The Irish Human Rights Commission did not dilly dally on this issue. It recommended that statements made to competent persons — I am referring to those in public authorities — should not be admitted. The commission was quite specific, but the Minister did not take its recommendations on board. The commission went on to state that it "is strongly of the view that this reform proposal could result in highly unreliable statements being admitted as substantive evidence in a criminal trial". For this reason, I will not agree to these sections.

The term "book of evidence" is a term of lawyers and, as far as I know, is not used in any statute. Under the Criminal Procedure Act 1967, the statements of witnesses, a list of exhibits and the names and addresses of witnesses have always been called the book of evidence by lawyers. Notices of additional evidence were regarded as a separate item. Frequently, where the prosecution knew further evidence was coming but knew it had aprima facie case already, the fact that it would have to delay for one reason or another did not inhibit it from sending the accused forward for trial and serving a notice of additional evidence at a later stage. Provided it was not done by way of a last minute ambush the Judiciary, given fair notice of further evidence to be adduced, normally agreed. In the UK they are beginning to explore the idea of requiring the accused to make his case, given that he now has legal aid.

A book of defence.

Yes. I do not know if that would be a bridge too far for Irish jurisprudence——

We discussed that proposal in the context of the requirement to plead in the District Court, to prevent a person hearing the case before deciding whether or not he or she was guilty.

One cannot spring an alibi.

It exists at the moment in the context of an alibi.

A start has been made on that.

"Alibi" has a technical meaning. An elaborate excuse for what otherwise looks like a crime is not covered by the concept of an alibi. It merely refers to physical presence at a place and other things are not covered by it.

The courts will be fairly tough on somebody who pulls a rabbit out of the hat at the last moment. On the other hand, if the prosecution became aware that a whole new line of defence was to be made by the accused, or if gardaí reported back that they now believed the accused would say he was in Spain when the crime took place or that the money in question belonged to his grandmother, the prosecuting authority must have an element of flexibility not only to bring rebutting evidence at the end of the trial but also to bring preparatory evidence as part of its case in chief to ward off particular lines of evidence which might be used against it.

The degree of notice to which an accused person is entitled very much depends on the facts of each individual case. I was struck recently by an address of an eminent senior counsel, Mr. Paul Anthony McDermott, at a conference held by the Director of Public Prosecutions in Dublin Castle. His argument was that we stack everything up in favour of the accused and leave the prosecution naked in certain circumstances. The Director of Public Prosecutions made the point that it seemed the accused could lose 100 arguments without detriment but if the prosecution lost one, the whole case collapsed. A footballing analogy was made whereby if one team scored 100 goals but the defence scored one, the game was over.

One own goal.

Yes. I do not claim to be an expert in Gaelic games but I understand there was a time when no amount of points equated to a goal. If a team scored one goal it would beat a team that had scored 18 points.

The Minister is showing his age.

That was changed at the turn of the century to a three-to-one ratio. This applies to the prosecution at the moment, unfortunately. If one thing goes wrong with its case on one occasion, it is finished, whereas the accused can have a catalogue of disasters such as bad witnesses——

It is nearly as bad as being a Minister. One major cock-up and he is done for.

As long as he realises it.

Members are very witty tonight. In answer to Deputy Ó Snodaigh's point, at least on this occasion the Human Rights Commission was definite and did not think it was a good idea. In amnesia cases there is another argument. The Canadian Supreme Court addressed this without legislation. It stated that the Canadian view of constitutional justice allowed it to reverse the common law rule in this area. We have our Human Rights Commission and the Canadians have their Supreme Court but we, as legislators, must make our own judgment on the issue. Either we leave the law as it is and people are allowed to walk away from solemn statements with no consequence at all, inducing outrage among the public at what it regards as selective amnesia, or we do not tackle the issue.

I believe that if Deputy Ó Snodaigh put that point squarely to 300 citizens in Dublin South-Central, they would support what we were doing in this House. He would find that only a small minority of opinion would believe it wrong to do what we are doing. I am not suggesting that right and wrong can always be determined numerically, but I am satisfied that the great majority of parties in this House believe that this reform is necessary.

Amendment agreed to.

I move amendmentNo. 50:

In page 27, to delete lines 14 to 41 and in page 28, to delete lines 1 to 24.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendment No. 51 not moved.

I move amendment No. 52:

In page 27, line 16, after "may" to insert ", with the leave of the court,".

Amendment agreed to.
Amendment No. 53 not moved.

I move amendment No. 54:

In page 27, line 25, to delete "any fact mentioned in it" and substitute "the fact concerned".

Amendment agreed to.
Amendments Nos. 55 and 56 not moved.

Amendments Nos. 57 to 59, inclusive, are related and may be discussed together.

I move amendmentNo. 57:

In page 29, between lines 20 and 21, to insert the following:

"19.—(1) All Garda stations shall be internally and externally monitored and recorded by CCTV or the equivalent and the recordings shall be secured for at least a year unless an allegation has been made of abuse by a Garda or it is required for the prosecution of an offence in which case it shall be retained.".

The purpose of these amendments is to ensure mandatory video-taping at all Garda stations. Although the Minister has announced that recordings take place within interview suites we need to go beyond that. The advance of technology allows, for example, the equivalent of closed circuit television to cover Garda rooms internally, and not just the external perimeter of the stations. During statements on a motion establishing the commission of investigation into the case of the late Dean Lyons, I indicated my intention to table an amendment to introduce a statutory requirement for all Garda interrogations to be video-taped and that recommendation is part of this.

Debate adjourned.