I move:
That, pursuant to Standing Order 200, Standing Order 154 is modified to provide that it be an instruction to the Select Committee on Justice and Equality that it has power to make provision in the Bail (Amendment) Bill 2016 in relation to:
(a) the Criminal Justice Act 1984, Criminal Justice (Drug Trafficking) Act 1996, Criminal Justice Act 2007 and Criminal Justice Act 2011, of a technical and drafting nature, to update cross references within the Acts; and
(b) the Criminal Justice (Public Order) Act 1994 for detention and release arrangements where an arrested person is intoxicated to such an extent as would give rise to a reasonable apprehension that the person might be a danger to self or others;
and to change the title of the Bill and make other consequential amendments required to take account of the changes above.
The additional provisions to be included in the Bail (Amendment) Bill concern an amendment to the Criminal Justice (Public Order) Act 1994 to allow the Garda Síochána to detain intoxicated persons who have been arrested and who are in custody in Garda stations where those persons would be a danger to themselves or others if released, and a technical amendment to be made to apply section 5A - questioning of persons detained under section 4 not generally permitted pending access to legal advice - of the Criminal Justice Act 1984, as inserted by section 9(a) of the Criminal Justice Act 2011, to the detention provisions of three statutes, namely, the Offences against the State Act 1939, Criminal Justice (Drug Trafficking) Act 1996 and Criminal Justice Act 2007.
With regard to the proposed amendment to the Criminal Justice (Public Order) Act 1994, the new provision concerns detention of intoxicated persons in Garda stations in circumstances where those persons, if released, would be a danger to themselves or others. The Garda Commissioner has requested that consideration be given to making statutory provision for such detention. It will allow the Garda Síochána to detain intoxicated persons who have been arrested for public order offences under the Criminal Justice (Public Order) Act and who, but for this new provision, would be released. Such persons can be detained for a period not exceeding six hours where the member in charge of the Garda station in which they are in custody is of the opinion that they are intoxicated to such an extent as to be considered a danger to themselves or to other persons if released.
To date, the Garda Síochána has relied on a presumed common law duty of care to intoxicated persons to justify such detention. However, this practice has no statutory basis and the amendment to the Public Order Act will provide for such a statutory basis. I stress that the new provision concerns dangerously intoxicated persons, persons who have been arrested for public order offences under the Criminal Justice (Public Order) Act and who, but for this new provision, would normally be released. The definition of "intoxicated" in the Act is not limited to intoxication due to alcohol consumption but is defined in the Act as including drugs, solvents or other substance or a combination of substances.
This new provision will apply where a person would normally have been released, for example, on "station bail" in accordance with section 31 of the Criminal Procedure Act 1967 or section 68 of the Children Act 2001, but where the member in charge believes that the person is so intoxicated as to be a danger both to himself or herself and to others, if released. The provision also provides for release prior to the expiration of the six-hour detention period. This will ensure a person will be released once he or she is no longer considered a danger to himself, herself or others. A similar provision is contained in section 16 of the Road Traffic Act 2010.
With regard to the technical amendments, these concern the application of a new provision dealing with detention, namely, section 5A of the Criminal Justice Act 1984, as inserted by section 9(a) of the Criminal Justice Act 2011, to the detention provisions of the three statutes mentioned, namely, the Offences against the State Act 1939, Criminal Justice (Drug Trafficking) Act 1996 and Criminal Justice Act 2007. Section 5A concerns the well established right of a person in Garda custody to access legal advice and is aimed at clarifying the circumstances in which questioning may proceed, notwithstanding that a suspect has not yet had an opportunity to consult a solicitor.
It is an established policy principle that relevant provisions of the 1984 Act relating to detentions made under section 4 of that Act should also apply to detentions made under the three criminal justice statutes mentioned. This means the new section 5A, which has not yet been commenced, will have to be applied to these three statutes. Sections 9(b), (13) and (14) of the Criminal Justice Act 2011 apply the new section 5A of the 1984 Act to the three statutes in question. However, difficulties have arisen from the fact that both the Criminal Justice Act 2011 and Criminal Justice (Forensic Evidence and DNA Database System) Act 2014, known as the DNA Act, amend the same provisions of the three statutes in question and while the amendments contained in the 2014 DNA Act have already been commenced those of the 2011 Act have not. The question of whether provisions which have been amended by a 2014 Act could subsequently be amended by a 2011 Act, in other words, whether the 2011 Act could "trump" the 2014 Act, has been considered. The fact that the provisions of the 2011 Act do not take account of some reformatting of the provisions by the 2014 Act has also given rise to uncertainty as to what will be the final outcome of the amended detention provisions. The Office of the Attorney General has advised that the most prudent way to clarify the matter is to draw up new provisions providing for the application of section 5A to the detention provisions of the three statutes in question and to repeal the existing application provisions of the 2011 Act.
As the Tánaiste and Minister for Justice and Equality is anxious that these provisions should be commenced sooner rather than later, she has decided to include the amendments in the Bail (Amendment) Bill, which is currently before the Houses. Members may recall that she indicated her intention to proceed on this basis during her Second Stage speech on 8 February 2017. The Tánaiste has been advised that this will necessitate changes to both the Short Title and Long Title of the Bill which, following agreement of the amendments on Committee Stage, would become the Criminal Justice Act 2017. I commend the motion to the House.
