Vol. 113 No. 16
I move:
That Seanad Éireann approves the following Regulations in draft:
Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations, 1986,
a copy of which regulations in draft form was laid before Seanad Éireann on 1st July, 1986.
I was not here when the draft of these regulations was debated so I will not try to go back to that debate. By and large these regulations are a worthy step forward and I want to compliment the Minister on them and, notwithstanding my reservations, on the introduction of an independent complaints procedure to deal with complaints against gardaí, I should not be negative and complaining all of the time. I do think that both of these items are an improvement.
However, I regret one part of these regulations. That is the fact that the only age distinction that appears to exist in the regulations is between persons over 17 years of age and persons under 17 years of age. I would have thought that regulations to deal with people of a much younger age group would have been well worth inserting into these regulations. The Minister's predecessor accused me of being highly emotive when I mentioned the prospect of a 15 or a 13-year-old girl being detained in a Garda station overnight and being questioned by members of the Garda. It is quite possible and quite feasible under a certain set of circumstances under these regulations for that to happen. I happen to believe that, whatever about 16 and 17-year-olds, an eight, nine, ten, 11, 12 or 13-year-old-child is primarily a child and should be treated as a child in all areas of the State's operations. I would have thought that, whatever about the legalities, it ought to have been possible to insert into regulations about the care of persons in custody some provision for people of those age groups. I do not for one second believe but that in 99.99 per cent of cases children are going to be other than treated extremely well in Garda stations. I have ample evidence of this. But it should not be possible for it to be otherwise. Our attitude to children of that age should be written into regulations and to law. It should not be left to the considerable goodwill and generosity of the Garda. I want to say again something I said in a different context, that because of the failures of caring agencies to provide services in the area of young children the Garda often have to do a child-care job in Garda stations at night and that is not fair to the Garda either.
In the whole area of the detention of children it is a matter of regret that these regulations do not go into greater detail, particularly for children of the younger age group. The Minister may enlighten me a little on this and I would be very relieved if he can. I do not think he believes or the Garda believe that a Garda station is the place to detain young children for any length of time however serious the offence being investigated. I regret the possibility of children being questioned separate from their guardians under any circumstances. I do not think it is ever a good idea to have children questioned on their own about any offence, however serious, by gardaí — I am talking about children of nine, ten, 11, 12 and 13 years of age. It is not so much that I think the gardaí would misbehave, I do not.
Notwithstanding things I say from time to time about the Garda, I think the gardaí treat children who are in custody extremely well, but it should not be possible in a civilised society for children ever to be detained in Garda stations. We should not do so and it should not be part of the normal framework of the operation of a civilised society. I regret the fact that, to the extent to which I have read these regulations — and I read them carefully — there is no recognition of the possibility, given the appallingly low age of criminal responsibility in this country, that very small children could end up in Garda custody. That is the only major qualm I have about the regulation.
As far as the regulations are concerned, very few changes have been made to the proposals which were before us a few days ago. I have not really any objection to the changes that have been made. Some are sensible amendments to the proposals. What really concerns me is that a number of points arose during the discussion on the proposals and no amendments were made to meet them.
The first point I made in relation to the proposals was that the member in charge played a very useful part and it was a very good idea that the person who was detained would know what an important part he played and if he did have complaints, or felt his rights were being infringed in any way, he should be made aware that a person was there to deal with that type of situation. It may not be absolutely necessary to have that provision in the regulation. It may be that when he is given notice of his rights, this notice may inform him of the existence of a member in charge. I am sorry that it is not more specifically set out in the regulation, but if it is done by way of a notice, it would certainly meet the situation.
There is another matter which arose on the discussion on the proposals and which I regret has not been met by the Minister. In his reply to the debate on the proposals, he made it fairly clear that he was not going to meet the situation, but I still have to reiterate that four hours questioning of a person is much too long. It appears in the regulation that, if an interview has lasted for four hours, it shall be either terminated or adjourned for a reasonable time. Four hours are very, very long and, as I said, two hours is the very maximum that should be permitted. We must try to be objective about this and arrive at a reasonable length of time.
Anybody who, as a result of an interview, has not given the gardaí the information they require after two hours, from then on is going to crack up, make omissions, or give information because the strain has just become too much. In a way, it will be self-defeating because it may well be that the courts will arrive at the decision that information or admissions made after that length of time were not obtained in a reasonable way and would not be regarded as proper admissions. I am sorry the Minister did not feel able to meet the point.
A number of other Senators agreed that four hours were too long and I find it difficult to understand why it seemed necessary to persist in having an interview lasting for four hours. The only reason, one would have to say, that it is persisted in is that if it goes on for four hours, a person will just give up and make admissions and so on that are not true because the pressure becomes too much. I am very sorry the Minister has persisted in having a maximum of four hours rather than two hours or even less.
The other feature of the proposals which has not been changed and which I would like to mention again is regulation No. 12 (a):
A person arrested under the influence of intoxicating liquor or drugs to the extent that he is unable to appreciate the significance of questions put to him or his answers shall not be questioned in relation to an offence while he is in that condition, except with the authority of the member in charge, which authority shall not be given except in the circumstances specified.
The circumstances specified may be important and a case can be made for them, but it seems that if you are allowing a person in that state to be interviewed, there should also be regulations to protect him from giving answers in that state. It may be that some vital matter can be got from him then, but it certainly should not be such a situation that could in any sense incriminate him. It should be in very, very restricted circumstances that somebody should be interviewed and asked questions when he is unable to appreciate the significance of either the question or the answer. If this is left in the regulations, it should be specified and the circumstances and ramifications to the answers should be set out in great detail. This is, to say the least of it, subject to very considerable abuse and could have consequences which would be most undesirable. I regret that the points that I made on this have not been met in these regulations.
Apart from the fact that the regulations have not been changed in certain ways I urged on the Minister, the changes that have been made are, by and large, sensible ones and I have no objection to them. Having expressed the reservations that I have about the regulations, it is certainly a very good thing that they have been introduced as a result of pressure put on the Minister by this House. By and large the regulations are a great improvement on what existed.
Like other Members I welcome the draft regulations which, to a considerable extent, speak for themselves. They have already been considered in broad outline by the House. It is useful for us to reflect on the fact that, when we do get round to having regulations relating to persons held in custody in Garda stations, they are quite detailed and quite complex. They ensure a number of safeguards which are standardised and which are required in the procedure and in ensuring access to information, advice and medical help, if necessary by persons held in custody.
I should like to ask the Minister about regulation No. 24. I am still a little unhappy about the preservation of custody records, or rather that these custody records might be preserved in a manner which could be detrimental, ultimately, to a person. Although, regulation No. 24 requires the preservation of custody records for a period for good reason, it does not require the destruction of custody records. I am concerned about that. One of the benefits of having regulations of this kind, and the detail of them, is that a considerable amount will be recorded, what took place at interviews, who was seen by or asked for by the person in custody and so on. As I understand the position — the Minister I am sure will correct me if I am wrong in my understanding of it — these custody records shall be preserved for at least 12 months or, if any proceedings to which a custody record would be relevant are instituted or any complaint is made in respect of the conduct of a member while a person was in custody, until the final determination of the proceedings or complaint, whichever is the later. I agree with that as it stands but there is no provision for the actual destruction of these records. Subsection (2) simply provides for a person having access to a copy of the custody record, if a request is made either by the person or a legal representative within 12 months.
I am worried about the possibility of these custody records lingering on being available in some way, being accessible to other parties or, indeed, being accessible in a way that could be prejudicial afterwards without the person being even aware of that. I am wondering whether the Minister did consider, and if so why it is not included expressly, an expressed provision for the destruction of the custody records. It may be that the Minister has a more final text than I am working on; it may be that he has considered this, in which case I am sure he will inform the House about it.
We live in an age when there is great concern about the computer records of people, and we are, for good reason, ensuring in these draft regulations that very full custody records will be kept of what took place while a person was detained in a Garda station. I am concerned about the possibility of future implications of those custody records where there is no expressed requirement that they be destroyed other than the necessity for their preservation for the reasons set out in regulation No. 24. I would be grateful for clarification on that point.
I mentioned to the former Minister, Deputy Noonan, my deep concern, when the Criminal Justice Bill was going through the House, for all children from a certain age down. The Minister has dealt with that. I support Senator Eoin Ryan's comments on the four hour interview. That is a long time for anybody to be questioned. I have asked gardaí about this. Some excellent gardaí think that four hours is too long.
When the House was debating the Criminal Justice Bill I mentioned the problem of the moderately handicapped child of ten, 11 and 12 years who is a member of a group taken to a garda barracks. I know the gardaí in the Ennis area will deal compassionately with such cases because they are near the specialised schools in Ennis that are so organised. The gap between the mildly and moderately handicapped is not clearly defined and is difficult to understand unless one is dealing with the problem. Those children would not be able to name immediately a nurse or a doctor, in their fright at arriving in a Garda barracks. They may be able to name their teacher but they certainly would not be able to name a solicitor or somebody near to them. It may be that that matter has been dealt with in paragraph 22 (1) and (2) of the regulations. I am deeply concerned about what may happen to a mentally handicapped child who is frightened on being taken to a Garda barracks. Most of our gardaí are great men — I do not know so much about the Banghardaí — and I pay tribute to them.
In the areas, and counties, where this service exists for mentally handicapped children, the gardaí are involved in fund raising projects for these schools and the workshops we have in them. In counties that do not have the services for these great children, I would worry about mentally handicapped children being brought to a Garda station with other children and not being able to look for their rights. A 12 year old might be able to look after himself.
As a mother I must say — I do not think it could be said often enough — that in Ireland we are too critical of the children who are growing up. They are growing up in an environment that is harder on children of 11 and 12 years of age than it was in our time. More children might find themselves in Garda barracks and being questioned than has been the case up to now. As a mother who has reared children I have to voice my worry in that regard. I know the Garda are family people and that they would be concerned about children's rights also. However, it would be wrong to let this motion go through without again voicing my concern for the children that I have helped so much in Clare and for children generally. There must be a shorter time for questioning. I do not know what length of time is given to children in the matter of questioning but certainly I support Senator Eoin Ryan in his concern. He has been a long time in the legal world. He obviously has deep worries about four hours of questioning for all persons in Garda barracks. If the Minister has looked after the children that I am mainly concerned about I thank him.
I would like to bring to the attention of the House that at pages 9, 10, 11, 17, 24 and perhaps elsewhere also, certain things are expressed, for example, the necessity to do things "as soon as practicable". There are other things to be done "without delay" and that is fair enough. I am very happy about that.
That is surprising and amazing.
I think "as soon as practicable" is a very fine expression. It is the correct expression to have here but I am anxious that the Minister would explain to me, if he thinks "as soon as practicable" is not as good or as urgent as "as soon as may be", why he did not put "as soon as may be" into these regulations. I am happy with these regulations except on this point. The Minister must be in the reverse position to myself unless of course he can distinguish the difference, which he has not quite explained, between "as soon as may be" and "as soon as practicable". He obviously has a difference in his own mind and considers "as soon as may be" to be more urgent and stronger than "as soon as practicable". Why not use the strongest one available in this case? I am not talking about those cases where he says "without delay". I understand that but this other phrase is used many times. That is the way the regulations were drafted. I am interested as to why the Minister considers that these should be drafted in such a way that all those cases should have a less urgency than they would have, according to his definition, if he had used "as soon as may be".
If the Minister intends speaking on this occasion — of course we cannot insist on the Minister speaking——
As soon as may be.
I would consider "as soon as practicable" to be appropriate.
The practicality depends on Senator O'Leary. In astronomical terms one of us is a red giant and the other is a white dwarf. I do not know which is which.
I would say the Minister is white. In the draft regulations, or whatever status they are now, station bail is referred to. Does station bail still exist, or has there been some change in the status of that? The Minister might be aware of whether station bail is in existence any longer.
Perhaps the Minister might give us a more detailed explanation as to the position with regard to the Bridewell Garda Station in Dublin. There is a change there but I am not familiar enough to object to the change. It appears that the member in charge there is effectively the person in charge of the detention section of the Bridewell. The Minister obviously has a good reason for that. He might like to explain why he made the change in regulation 5 (4) which appears to have the effect of permanently authorising, for the purpose of carrying out the duties of the members in charge in a certain area, the member with particular responsibility for the cell area in the Bridewell Garda Station. The Minister obviously has good reason for that and I would like to hear his comments on that.
Finally, I too share the view that four hours is quite an inappropriate length to question people with regard to their activities. I can only repeat the advice which I would give to anybody arrested under the Criminal Justice Act, 1984: that is while they can ask you questions for as long as they like, you have no obligation whatsoever, except in very limited circumstances, to answer any of the questions.
I am grateful for the opportunity of allaying Senator O'Leary's fears that perhaps, and exceptionally on this occasion, I did not have anything to say. You will of course note, as will the House, that I intervened in the debate as soon as it was not only practicable, practical or feasible for me to do so but as soon also as it was mannerly for me to do so. I would hate to cut the grass under Senator O'Leary before he had made his remarks.
Other Ministers tried.
Look what happened to them.
I did not need to say that.
I would like to point out to the House first of all, as has already been noted by a number of Senators, that following the discussions we had here of the White Paper some changes have been made in the regulations compared to the text that was in the White Paper. I want to thank the House for assisting me in getting value out of the particular procedure that I used because once draft regulations are laid before the Houses of the Oireachtas they can be either accepted or rejected but not amended. The purpose of the previous discussion was to give both of the Houses an opportunity to give me their views on changes that they might like to see in the regulations.
The regulations now before us take account of the debate that we had and indeed they take account of discussions that I have had with Garda representative associations and the Garda management. It is important that we get the widest measure of agreement that we can on the content of the regulations. Since they have not all been mentioned I might just briefly recite what the principal changes are, apart from the purely drafting changes. Regulation 1 provides for these regulations to come into force a month after the date on which they are made. The reference to integrity which figured in the draft of regulation 3 (i) has been deleted, but we have given an emphasis there to the special needs of handicapped persons for very much the reasons that Senator Honan and Senator Eoin Ryan developed earlier. In regulation 5 (iv) we have added in a sub paragraph (c) to take account of the special situation in the Bridewell station in Dublin where one member has particular responsibility for the cell area. The need for that, of course, arises from the fact that there is a substantial flow of people into and out of the Bridewell Garda Station for a number of reasons with which I think the House will be familiar. I felt it was appropriate to have a specific provision making the position clear beyond any doubt because of the numbers of people who go in and out of that Garda station.
We made provision in regulation 7 (1) for the recording of any relevant particulars relating to an arrested person's physical or mental condition on arrival at the station. It is important particularly with a view to any subsequent proceedings that that form part of the custody record.
Regulation 11 (2) makes it clear that this provision, which allows access to a solicitor whose presence has not been requested by an arrested person, applies only where the arrested person has not already had access to a solicitor of his choice. That is a matter of clarification rather than of policy.
Regulation 11 (5) has been amended so that it now provides that a telephone call by an arrested person is to be free of charge provided it is of reasonable duration and to a person reasonably named within the framework of the regulations.
In regulation 12 (8) we have inserted a new subparagraph to provide that a person who is deaf, or hard of hearing, may have questions put to him in writing if he or she has requested an interpreter and one is not reasonably available.
Regulation 17 (3) now includes reference to head gear and gloves among the items of outer clothing which may be removed in the course of a search in the presence of a person of the opposite sex. That is a matter of practicality and not any substantial matter of policy.
Regulation 21 (2) will apply irrespective of the expected duration of custody so that medical advice must be sought in every case where a person in custody claims to need medication for any potentially serious condition. If the person does not claim to need such medication but has medication in his or her possession the member in charge must still seek medical advice if he considers that to be necessary. That meets a concern that was expressed during the last discussion by Senator Fitzsimons. It is a matter to which we must give some attention, particularly when — although I know it is not a very widespread practice — it is becoming more common for people who are in need of constant or regular medication to carry some indication on them to that effect.
Regulation 12 (4) now provides that if an interview has lasted for four hours it shall be either terminated or adjourned for a reasonable time. That clears up an ambiguity in the original text pointed out by Senator O'Leary during our earlier discussion.
Regulation 14 (14) contained an ambiguity pointed out by Senator Eoin Ryan at our last discussion. It has now been removed. That concerned the restriction of consular access to persons in custody who seek political asylum.
In relation to the specific points raised today I should like to remind Senator Brendan Ryan and Senator Honan that under section 14 of the Criminal Justice Act, 1984, children under 12 years of age cannot be detained. Children between the ages of 12 and 17 may not be questioned without some responsible adult, other than a Garda, being present unless that is impracticable. Regulation 13 (2) deals with that point. On the length of a period of questioning, I note that Senator Eoin Ryan and Senator Honan both have reservations about a period of four hours, suggesting that that period might be too long. It is a matter we dealt with during our last discussion. I pointed out on that occasion that it is not difficult to conceive of circumstances in which a court would find that even a period of questioning of four hours or less might be held to have been oppressive.
There are also cases in which one could argue that a longer period of questioning than that would not be oppressive. If it can be shown that it is the case that questioning for four hours or even a shorter period was oppressive, there is at least redress available. The specification of the period is very much a matter of judgment being formed by experience. The conclusion we came to was that in order to specify a period, we should take a period of four hours as being, on the whole, a reasonable period, again bearing in mind the fact that even a period of questioning of less than four hours could be found, in some circumstances, to be oppressive. That would have to be determined subsequently by a court rather than in the course of operation of these regulations on the ground.
Senator Eoin Ryan also asked about the situation of a person who is intoxicated, who might be asked some questions and who might make statements that would tend to incriminate him. Questioning in a case like that — this is dealt with in regulation 12 (8) — would have to be authorised by the member in charge. The authorisation by the member in charge would have to be recorded in the custody record so that there would be a clear indication in the custody record that this person was intoxicated but that for what he judged to be adequate reasons the member in charge authorised questioning. It would, therefore, be knowledge available to the court in any subsequent proceedings that that was the case.
It would be perfectly open to the court to take its own view as to the circumstances in which any statement, particularly an incriminating one, was made. On the other hand, there is always the concern — particularly when we are talking about the investigation of serious crime — to make sure that as much information as possible is got as quickly as possible so that dangers to other people can be averted or so that we can avoid the danger that evidence that would be of value in the prosecution of the crime would not be hidden or taken away during the period when no questioning could take place. The safeguard there and the fact that such an event would be recorded in the custody record, in itself would ensure that due care was taken in cases of that kind.
Senator Robinson pointed out quite rightly that there is no provision for the destruction of custody records. There is not. That is also the case today. We have already a form of custody records which will be superseded by that provided for here. There is equally no provision for the destruction of those. However, they are confidential documents, official records, that are not available to the general public. I have a feeling that there may have been some lack of clarity in the debate on the previous occasion. In case there was I should like to point out to Senator Robinson that the custody record itself will not include the record of any interviews that take place during questioning. The custody record will record the fact that an interview took place, will record the names of the gardaí who were present during the course of the interview and will identify the length of each interview. But the record of the interview itself is a separate document.
I can understand Senator Honan's concern with the case of a mentally handicapped child or a mentally handicapped person of any age who might not be able to articulate, particularly in the circumstance of being brought into a Garda station. As far as we can do so in the legislation we have provided both the duty and the means for the garda in charge to deal with that situation. I realise there can be difficulties when a person is incapable either of identifying himself or herself or of identifying a parent or guardian or giving the name of a parent or guardian. We have gone as far as we can to anticipate such a problem and the qualification required, that the person dealing with the situation will be one who has had experience of dealing with mentally handicapped persons. If there are further practical steps we can take I would be happy to look at them, and in the light of experience if Senator Honan or anyone else finds cases that need a different approach I will look at them and bring them to the attention of the Garda Commissioner and the Garda in general.
Senator Eoin Ryan asked if the notice of rights would include a reference to the garda in charge. It will. Indeed the notice of rights now given to a person in custody contains such a reference, and any modification we will have afterwards will include a reference to a number of rights that do not arise from anything in these custody regulations. Senator O'Leary returned to "as soon as practicable". We had some little discussion on that earlier, although we are not comparing different formulae I think the phrase "as soon as practicable" is the most appropriate one here.
Why not "as soon as may be".
Though the temptation is great, I do not intend to return to that discussion. It might be desirable in principle to require certain things to be done immediately a person is taken into custody — Senator Michael D. Higgins referred to the arrest of 30 persons in the Phoenix Park — and it might be desirable to provide for certain things to be done immediately, but the unfortunate garda in charge in the Bridewell faced with 30 people coming in all together will not be able to do a number of things immediately. However, he will have to ensure that they will be done as soon as practicable. How he will choose who will be No. 1 on the list, and No. 2 and right down to No. 30 is a matter for himself to decide. No. 30 will certainly not be handed the statement of rights immediately; he will be handed that statement as soon as practicable and, at latest, immediately after No. 29. There is a question of practicality involved. A number of steps have to be taken before that point can be arrived at.
