Amendment No. 32 has already been discussed with amendment No. 1.
SECTION 7.
I move amendment No. 32:
In page 8, subsection (2) (a), line 44, to delete "suspected".
Amendment agreed to.
Amendment No. 33 not moved.
Section 7, as amended, agreed to.
NEW SECTIONS.
I move amendment No. 34:
In page 9, before section 8, to insert the following new section:
"8.—The Public Dance Halls Act, 1935, is hereby amended by the insertion after section 13 of the following section:
‘13A (1) Any member of the Garda Síochána whether in uniform or not may enter any place in respect of which a public dancing licence is for the time being in force at any time while such place is being used for public dancing or at any other reasonable time and there make such inspection, examination and inquiry as he shall think proper for the prevention or detection of a drug trafficking offence within the meaning of section 3 (1) of the Criminal Justice Act, 1994.
(2) Every person who shall prevent or attempt to prevent a member of the Garda Síochána from exercising, or obstruct or attempt to obstruct any such member in the exercise of, a power vested in such member by virtue of this section shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding £1,000.'.".
This amendment will insert a new section 13A into the Public Dance Halls Act, 1935, to deal with the right of access by gardaí to dance halls where a public dancing licence is in force for the purposes of preventing or detecting a drug trafficking offence. I indicated on Second Stage that I would move this amendment, the purpose of which is to deal with a problem in the law relating to Garda powers of entry to premises where a public dance hall licence is in force.
At present, section 13 of the Public Dance Halls Act gives power of entry to such venues to any member of the Garda Síochána in uniform in order to carry out an inspection, examination or inquiry as he or she thinks proper. In the context of an investigation of drug related offences, the requirement that the Garda must be in uniform is unhelpful in efforts to obtain evidence of drug dealing in dance halls or similar places of entertainment.
The proposed amendment to add a new section 13A to the 1935 Act will give the power of entry to gardaí whether in uniform or not for the purposes of investigating drug trafficking offences. As the penalty for obstruction or attempted obstruction of a Garda acting under powers conferred by section 13 is only £5, there is provision for a penalty of up to £1,000 on conviction for obstructing or attempting to obstruct a Garda acting under the new section.
Members will know I indicated on Second Stage that I would use this legislation to move forward on a wide number of fronts where I think it practicable and this amendment is appropriate under the long title of the legislation. I am sure there will not be any disagreement about the purpose of this amendment and I hope it will be accepted. I continue to review the 1935 Act for the purpose of making further amendments but I have been advised that the other changes I will make are not appropriate to this legislation.
I welcome this amendment. In an age when, unfortunately, drugs are available in clubs, it is arcane to say the least that the Garda Síochána must be in uniform before gaining lawful entry and the Minister is to be commended on this amendment. However, it would be even more desirable had the Minister introduced a provision whereby a warning notice could be served on the licensees of premises where illegal drugs are sold, informing them that if their house is not put in order within a period of, say, 60 days, a further application would be sought, this time before the District Court, for the closure of the premises for a given period and if there is a subsequent sale of illegal drugs on the premises, an application would be made to close the premises entirely.
I realise it is possible to object to a licence being granted to such premises at the annual licensing in the District Court. However, stronger provisions are required to deal with the emerging situation. We heard extremely disturbing reports last year about licensees and people working for them turning off water taps in some premises and selling tap water over the counter to young people who consumed Ecstasy tablets were dehydrated. Anyone who engages in such a practice deserves the full rigours of the law to be brought to bear on them. It is despicable to trade in human misery and in the lives and futures of young people. While I welcome the Minister's amendment, the Public Dance Halls Act, 1935 should be further amended in the near future to take account of what is happening in certain premises today regarding the sale and supply of drugs.
I support the amendment. Not only have drugs become the norm at raves but they have been popularised by the development of the rave culture. While we are tightening up the laws on drug trafficking we should deal with the relationship between raves and the drugs culture.
The Public Dance Halls Act, 1935, was relevant at the time it was enacted. It conjures up a picture of the ballroom of romance which is not relevant to today's dance culture and the drug culture which goes with it. I agree with Deputy O'Donoghue that it might be appropriate for the Minister to bring forward relevant amendments on Report Stage.
The Public Dance Halls Act should be reviewed at an early opportunity, particularly in the context of the care available to young people who collapse while at raves. We need to put strict criteria in place for the licensing of such outlets so that when a young person collapses at a rave medical care is available to them. Young people have died at raves. Some who collapse are removed from the venue and left to their own devices.
I welcome the Minister's indication that she seeks to review the Public Dance Halls Act, 1935. I concur with the call for a wider review of the Act given that times have changed greatly since the legislation was introduced. The Act was brought in at a time of greater harmony in social activities. I am sure that any anti-social activity which took place at that time was minimal, harmless and innocent when compared to what happens nowadays.
We have heard frightening reports of raves at which proprietors appear to have been less than responsible in the manner in which they managed those events. There is ample evidence to warrant a wider review. I encourage the Minister to bring forward amendments on Report Stage to deal with this matter.
This amendment is necessary. Signalling the intent of gardaí to enter raves is absurd and does not serve any purpose. Gardaí should enter unnoticed and be present in such premises if they are to take on the professional operators in the dance halls.
I support this amendment. In Dublin the supply of Ecstasy is operated on a highly organised and sophisticated basis and is very lucrative for those involved. In one club which attempted to stop the sale of Ecstasy people employed by one of the leading drugs barons, who was subsequently named in court by a member of the Garda, threatened the staff of the club for not allowing its sale. There is a very organised scene in clubs and dance halls in Dublin. While Ecstasy is the primary drug involved young people are introduced to heroin to help them come down from the Ecstasy high.
A number of young people have died already, even at some of the most prominent venues in Dublin which one would have expected to have been run responsibly and in full co-operation with the Garda. I will not name them but I am sure Members know the premises to which I refer. In those instances tap water was sold at £1.20 a glass. In that context, I support Deputy O'Donoghue's call for stronger provisions which will enable the closure of these premises. I welcome the amendment but stronger provisions should be considered on Report Stage.
I welcome the amendment. Does the Public Dance Halls Act cover nightclubs? Nightclubs, which young people attend, are beginning to emerge as a means of diverting police attention away from the obvious places where people participate in drug taking.
Perhaps this is not the appropriate Bill on which to address the problem of misbehaviour while people are on such premises. Many nightclubs serve alcohol legitimately. In a recent tragic event in my constituency a young person who had consumed alcohol died as a result of a stupid game played when leaving the nightclub. Clubs operate almost on an all-night basis. In some clubs, people consume so much alcohol that they play games, such as dares, on the road. A young person was very seriously injured as a result of one such game last weekend. He is on a life support machine and it is only a matter of time before it is switched off.
The Public Dance Halls Act, 1935, must be examined at a later date to deal not only with the use of drugs at raves but also in night clubs and any other venue the Minister and the Oireachtas think appropriate. It is timely that we deal with that.
Unfortunately, young people today have so many hours available to them in which to consume either drugs or alcohol or a combination of both that their lives are put at risk. The licensing laws have been controlled for a substantial period of time. We want to liberalise them for the tourism market but in doing so we may give our young people too many opportunities for drinking in those environments. We will have to decide whether it is appropriate to allow unlimited drinking at the weekends, especially in various types of clubs.
I welcome the amendment and I hope that the Minister will bring forward further amendments to the Public Dance Halls Act, 1935.
I also welcome the amendment and I support the view expressed about dance halls. While I am long past the stage of being at raves, I have watched television and seen the kind of frenzy people are in as they dance. One wonders whether dancing or drugs dominate the scene.
I was fascinated by Deputy O'Donoghue's contribution. I received communications from night-club owners because of views I expressed in a letter. They explained to me that night-clubs are places where boys meet girls. I wonder about some of the scenes one sees on television where people are under the influence of drugs. I am not sure how widespread the use of drugs is, but from what Deputy O'Donoghue has said, alcohol is a major factor.
Deputy Gregory spoke about threats being made against owners of premises. The ideal solution may not be to close them down but for the gardaí and others to eliminate the source of these drugs, if possible. Dance hall owners may do their best to run a good house, but if they are intimidated when they stop the sale of drugs in their premises they have a problem too. We might need to consider that factor. The idea of boy meets girl is something that existed long ago when I was a young Oisín and not Oisín i ndiaidh na Fianna.
We should never be so big for our boots that we cannot say that the law is not perfect in this regard. We are dealing with a changing world and we must face up to the reality that the law must take account of changing mores in society.
Like my colleague, Deputy Browne, I do not frequent night-clubs or discos but as mayor of Limerick, I attend them for social reasons. I have become something of a sociologist observing the manner in which young people comport themselves.
The music is too loud and the lights flash at a fast pace. The music whips up the frenzy described by Deputy Browne. Young people feel the need to take alcohol or Ecstasy tablets to complement the music. It is very fast and the predominant part of it is the drumbeat. Sometimes when people, in particular young men who are often stimulated by alcohol and drugs, see me at discos they engage me in discussions on the economy and criticise me or the Government. Some are incoherent and cannot walk but they dance to the drumbeat because it is so powerful. Young people feel they must take stimulants to drive themselves forward in a frenzy to dance to the music.
There is a deficiency in our culture when young people feel compelled to go into these bad surroundings which are usually crowded. Usually the young men are more intoxicated than the women although the women are sometimes not far behind them. They are damaging their health in every way. They are taking stimulants and damaging their ears. The atmosphere is not conducive to enjoyment. It is a poor reflection on our society when people do this.
We cannot stop it. We must hope that the changes in the law will help to improve matters but we are approaching it from the wrong angle. We must look for a different type of culture which would encourage people away from that, not by penalising them although penalties must be invoked but by example, education and better orientation of society.
I congratulate the Minister on this amendment. It is farcical that plain clothes gardaí cannot enter these premises. I understand a recent case concerning the inability of gardaí to present themselves in plain clothes prompted the amendment.
If I were a Member of the committee I would propose an amendment to the fine of £1,000. These gangsters are extremely wealthy and they work with gang members. If they are carrying substantial quantities of Ecstasy into a club, pub or dance hall, they will not leave themselves liable to arrest. They take minders with them.
A fine of £1,000 will not deter a minder if in order to protect his drug dealing boss, he has to obstruct, hinder or confront a garda who is trying to make an arrest or seize drugs. Drug dealers often have two minders with them. Even if two minders confronted, hindered or obstructed the gardaí the baron would only be faced with a £2,000 fine to bail out his two colleagues. While I appreciate the worthy sentiment in the amendment I do not think £1,000 will deter the drug baron from sacrificing his minders.
These minders are not terribly far removed from the animal instinct. They will accompany their drug baron boss wherever he or she goes. Their job is to protect their baron and they know that they can be sacrificed, just like any bodyguard. They will be sacrificed and the baron will pay the £1,000 without blinking an eyelid.
The recent case which appeared in the newspaper brings the point forcibly to mind. A serious dealer was trying to flush Ecstasy tablets down the toilet. They were sealed in a plastic bag and because they were airlocked they would not flush away. The garda was obstructed. They were lucky on this occasion but £1,000 will not deter these mindless thugs from protecting their boss. Sadly, it will not be sufficient. I would like see a fine of £25,000 imposed.
I apologise to Members and the Minister for my absence during the earlier part of the meeting and I thank Deputy Gregory for taking the Chair.
There is widespread agreement on amendment No. 34. As regards houses being used for dances and raves — these do not come under the Public Dance Halls Act — we have heard about a covert operation in the Munster area and in my constituency in which invitations are whispered to young people to attend raves in old estate houses or disused mansions. Obviously, this new section will not be able to cater for that because we are dealing with old houses which are not covered by public dance hall licences.
Serious consideration should be given to affording the gardaí every power and opportunity to ensure that raves do not go ahead under the cover of darkness. Invitations are whispered but there is nothing in writing. People appear as if on a treasure hunt to suss out the location of a weekend rave. That often happens in the UK but, unfortunately, it is happening here all too frequently and it should be tackled.
I thank Members for supporting this amendment. Before tabling it. I looked carefully at other amendments which might be appropriate. However, reviewing the 1935 Act would also involve the environment, local authorities and the use of water. This was the only amendment which was covered under drug trafficking legislation. All the other issues are highly relevant to a review of the 1935 Act. I will look again at that Act, although we tried to include as many amendments to it as we felt were appropriate under the long title of this Bill. We do not want to delay this Bill by spending an undue amount of time reviewing the 1935 Act, which has been in need of review since the 1950s or 1960s when dancing changed from the days of Victor Sylvester to what it is today.
I thank Members for raising extremely relevant and valid points. This is not just a problem in Dublin. As Deputy Browne said, it affects towns in his constituency. The Public Dance Halls Act, 1935, covers a place meaning a building or part of a building, a yard, a garden or other enclosed places, whether roofed or not roofed and whether the enclosure and the roofing, if any, are permanent or temporary. Public dancing means dancing open to the public in which persons can participate actively, in other words, premises where people announce that it is a place where somebody can dance and where a licence is available.
As regards the raised by the Chairman, I said on Second Stage that I wanted to introduce regulations for non-licensed yards, warehouse or private houses where events can take place. The Criminal Justice (Public Order) Act is a mechanism the Garda Síochána can use to intervene if a spontaneous rave type function is being held. We must not assume nothing can be done. The gardaí have been successful in closing down some premises and the owner of a premises is serving a considerable sentence because he allowed his premises to be used for the sale of drugs. The Olympic Ballroom, where many of us might have danced during our college days, has been closed. It is important to point out that there are powers under the Criminal Justice (Misuse of Drugs) Act.
The purpose of this section is to allow gardaí in plain clothes to search a premises. The fine is being imposed to stop people who, as Deputy Byrne said, might try to obstruct the gardaí but the purpose of this section is to allow the gardaí to take a much bigger case against the premises. The Deputy said the fine should be greater. The fact that a fine is being imposed on somebody who obstructs the gardaí will strengthen their hands at the licensing court. At present the gardaí find it very difficult to convince a judge that the licence of a premises should not be renewed. Now they will be able to say somebody was fined for obstruction and that in itself will indicate that there is something to hide, so it will strengthen the powers of the gardaí.
Together with the other changes I propose to make to the 1935 Act, I believe we will have more effective law to deal with modern entertainment. Nobody wants to be a killjoy. Young people like to gather in large numbers and listen to loud music. I have three children and the sound in my house can be quite high, although they are not at a rave or a dance but just listening to music while having a shower. That is the nature of entertainment today. I may not be able to make other changes to the 1935 Act in the time available but they will be made before the end of the year.
Amendment agreed to.
I move amendment No. 35.
In page 9, before section 8, to insert the following new section:
"8.—(1) Where in any proceedings against a person for a drug trafficking offence evidence is given that the accused—
(a) at any time before he or she was charged with the offence, on being questioned by a member of the Garda Síochána trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings, or
(b) on being charged with the offence or officially informed that he or she might be prosecuted for it, failed to mention any such fact,
being a fact which in the circumstances existing at the time he or she could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, the court, in determining whether to commit the accused for trial or whether there is a case to answer, and the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure as appear proper; and the failure may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence given against the accused in relation to which the failure is material.
(2) Subsection (1) shall apply in relation to questioning by persons (other than members of the Garda Síochána) charged with the duty of investigating offences or charging offenders as it applies in relation to questioning by members of an Garda Síochána, and in that subsection, ‘officially informed' means informed by a member of an Garda Síochána or any such person.
(3) Nothing in subsection (1) or (2) above shall in any proceedings—
(a) prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of anything said in his presence relating to the offence in respect of which he is charged, in so far as evidence thereof would be admissible apart from those subsections, or
(b) be taken to preclude the drawing of any inference from any such silence or other reaction of the accused which could be drawn apart from those subsections.
(4) Subsections (1) and (2) above shall not apply as regards a failure to mention the fact if the failure occurred before the commencement of this section.".
These amendments relate to the traditional absolute right to silence, which is one of the oldest aspects of our criminal justice system. There is a tendency to think that if something as old as that has survived for so long without repeal, it is wrong even to question whether it should continue in the modern context. The Progressive Democrats have consistently sought to curtail the absolute right to silence and we do so again.
We cannot continue to accept without question that if something has survived for a couple of hundred years, it deserves to survive for a few hundred more. We need to look at the reasons behind the traditional right to silence and whether they exist today. We must consider what the right to silence achieves in today's criminal justice system. It is worth pointing out that it is slightly misleading to refer to a right to silence as there are two separate rights involved. The first is the right to remain silent while in police custody without a court drawing any adverse inferences from that silence. The second is the right to remain silent while on trial without any adverse inferences being drawn from that silence.
We have tabled amendments in relation to both of those rights. The general right dates back to an era when the rights of a suspect were very much more limited than they are today. For example, in the old days, the accused did not have the right to speak at his trial or to be legally represented. The right to silence in police custody arose from the need to avoid the risk of untrue confessions being extracted by oppressive questioning by the authorities. We know from celebrated cases in Britain, for example, that is a real risk and because of that we must accept that a person should not be forced to answer questions while in police custody.
As regards the right to remain silent while on trial, again we should acknowledge that this dates back to the time when an accused had no right to speak or to be legally represented at his trial. Since the accused could not give evidence to defend himself, it was appropriate that he should not be forced to give evidence to convict himself — in other words, to self-incriminate. We should bear in mind that modern technology has moved on since those days when the issue of the right to silence in police custody arose. There is now the potential to make visual and audio recordings of the interrogation of suspects in police custody. The issue of whether a suspect was beaten or threatened into making a confession is no longer a case of his word against that of the Garda. It is now possible to have an independent record of the interrogation and it is extraordinary that we have not yet made standard these features of police interrogation, as recommended in the Martin report. The suspect now has a right to consult with a solicitor and can benefit from a system of criminal legal aid. The accused also has the right to give evidence at his trial if he so wishes.
Because of these changes and the modern context in which we operate, we would question whether the right to remain silent should continue in its present form. We do not propose that a suspect should be forced to answer questions while in custody or to give evidence at his or her trial. We do not say that the failure to answer questions in custody or at trial should, for example, be a crime. However, when a suspect remains silent while in police custody or at his trial, the court in which he is being tried should be entitled to take this into account in deciding guilt or innocence. An inference should be, and be capable of being, drawn. That is no more than common sense.
If, for example, a suspect, fails to mention to the police something he subsequently relies on in his defence, the jury should be entitled, in deciding whether or not they accept the explanation, to ask themselves why he did not mention that earlier. The whole point of a jury in the criminal justice system is to ensure that the system benefits from the common sense of ordinary members of the public. Why then should the jury be prevented from asking the most obvious and ordinary of questions, such as why did the suspect not mention this earlier? Why did he put himself through the ordeal of a criminal trial if he had an explanation all along? The prosecution should be able to raise those questions and be capable of drawing inferences from them. The jury should also be able to draw inferences from an accused who remains silent during his trial.
This committee supports extended periods of detention for drug traffickers. Drug trafficking presents the State with problems of a type and scale with which it is not familiar or equipped to deal. The Bill responds to this exceptional problem by conferring on the Garda exceptional and radical powers of detention. They go way beyond anything which has ever been contemplated in Ireland and the aim is to make it much more difficult for criminals to tough it out during questioning by the Garda.
My party is putting forward these proposed amendments on the right to silence. There is widespread support among the public, not for a total abolition but a curtailment of the right to silence, to allow inferences to be drawn by the right to "sing dumb". If suspects want to remain silent, they should be allowed do so but they should know the jury is no longer obliged to ignore it. That is the motivation behind these amendments and I look forward to the Minister's response.
Are amendments Nos. 35 and 36 being taken together?
Yes.
As Deputy O'Donnell and the Minister have pointed out on a number of occasions, this Bill contains exceptional measures and provisions for the continued detention of a person for up to seven days so that an offence may be properly investigated, albeit after 48 hours subject to judicial review.
The Bill attempts, sometimes in a radical manner, to tackle the scourge of drug trafficking. Deputy O'Donnell has asked whether a further exceptional provision should be inserted into the Bill so that an inference could be drawn by way of corroboration from the silence of an individual.
Many who call themselves civil libertarians would be entirely opposed to this suggestion because it might or could lead to people being abused in custody and saying things which would incriminate them when they are not guilty of any offence. However, since we are dealing with suspected drug traffickers and an inference could be drawn by way of corroboration from an individual's silence in certain circumstances this proposal could be supported.
The right to silence existed in the past because an individual or an accused person did not have the right to speak at his or her trial. It is also true that at that time there was no constitutional right or right under common law for an accused to have the services of a solicitor or barrister to represent them in court. It is only in relatively recent times — it was the case of the Director of Public Prosecutions v. Healy — that the Supreme Court decided there was a constitutional right for an accused to have the services of a solicitor. As an accused person now has the right to speak in his or her defence and that there is a plethora of barristers and solicitors willing to represent them in the course of criminal proceedings, the fundamental reason for the right to silence has all but disappeared. That is not to say that I favour the abolition of the right to silence in certain minor offences or ones of a grave nature.
This Bill addresses the question of drug trafficking. There is a feeling in Irish society that the "staring at the fly on the wall" syndrome should be removed from our law in so far as it relates to suspected drug traffickers because those found guilty of such offences are peddlers in human misery and death.
There is always the risk of some people, albeit a minority, interfering unlawfully with an individual while they are being detained. However, I am not convinced that the propensity for an offending officer to abuse a person in custody will be increased because one says that an inference can be drawn from the silence of an individual if he subsequently relies upon a fact in his defence which he had the opportunity of mentioning earlier.
Of course, the fact that an individual stays silent must not mean under our law that it could stand alone as evidence against an accused person. Clearly it could only be used as corroboration and there is no question of the evidence standing on its own to convict an individual nor is there an obligation on an accused person to say anything. The reasonable man in the street is sick and tired of individuals having the right to pick a spot on the wall and not say anything when questioned about suspected drug trafficking. There is a groundswell of opinion and support in the community for an inference to be drawn from a suspected drug trafficker's silence. Everybody knows the gravity of the offence involved and believes that it should be met with the most severe rigours of the law. If this means drawing an inference from an individual's silence in certain cases such as drug trafficking, then that inference as a matter of corroboration could and should be drawn.
There is considerable technology now available to the State, the Garda Síochána and the Director of Public Prosecutions which did not exist when the right to silence was first introduced. The videotaping of interviews by the gardaí can be introduced if it is deemed that certain safeguards are required to ensure that innocent people will not be victimised as a result of an inference being drawn by way of corroboratory evidence from an individual's silence.
If this related to drug barons only I would not have any problem with it but what about drug addicts who sell drugs in order to feed their habit? They may not give evidence out of fear.
There are safeguards in the amendment. Amendment 36 states if "it appears to the court that the physical or mental condition of the accused or other mental condition or other substantial reason makes it undesirable or unfair for him to be called upon to give evidence." It deals with the objective state of mind of the accused.
Is that during the court case?
Yes.
On the other hand, will a case be built up against the person? I would worry because of the fear that is instilled by drug barons and other buckaroos. I was talking to a mother in Carlow whose son was on drugs and under no circumstances would he reveal who sold him the drugs because his brother had been beaten up as a warning. There is real fear. Deputy Gregory mentioned the hotel and dance hall owner earlier. This is part and parcel of life and I would hate to think that subsection (1)(a) would apply to a victim of the drugs scene who would not reveal evidence out of sheer fear.
The entire Bill is defective if that is the case. A drug trafficking offence is defined in the Bill. It includes persons who are peddling drugs as well as drug barons. Extended periods of detention and so on also apply to that young person that the Deputy is talking about. We must be clear about what we are dealing with in this Bill.
Drug barons are different from the victims of drugs. I know people who are intimidated by drug dealers and it would be awful if they were guilty of another crime through sheer fear. I would not be happy with this. I know it might upset people who do not agree with me but I am entitled to my view. The big drug barons will be protected by their minders. They will be able to pay anything they like for their defence. They can look at a spot on the wall all day. I would have no mercy on them. They are a different category.
If the Deputy is making a distinction at this late stage in the debate between the persons who will be subjected to the provisions of this Bill he should consider that the young drug addict will be included under the radical provisions relating to the extended periods of detention, up to seven days. If the Deputy has qualms about that similar to the qualms he is expressing about the right to silence, he has problems with the Bill. I do not have problems with the Bill and I support it because there are safeguards in it.
I also support the Bill but the Deputy is creating an extra offence for what would be an innocent victim. The Deputy is entitled to her view. She has a legal brief. I hold no brief but the practical side of life is important.
The purpose of this Bill is clear.
I agree with Deputy Browne. Deputy O'Donoghue said that this Bill contains a list of extraordinary and exceptional measures to deal with the serious problems we face. I am concerned about the type of person this amendment could be used against. I am not a legal person but in formulating legislation we must ensure that both sides of the argument are put. I do not say that I disagree with it totally but we must examine what could happen in certain circumstances.
There will be two types of people in custody as a result of this legislation, one will be the barons and the other will be those who are caught up in the drugs scene. "Baron" is becoming a clever and fashionable term to use but we have not yet defined what it means. There is a level of drug business that qualifies barons for special treatment in law. "Baron" has not been defined as a legal term. Some people might think we are pushing it too far to define "baron" but we are dealing with drug barons. What is a drug baron? At what level do you become a drug baron? At what level do you become an ordinary drug trafficker caught up in the business of dealing in drugs because you are part of a chain of events and have no choice in the matter?
I presume that under this Bill we will take as many people into custody as possible, among them those to whom we are determined to apply the full rigours of the law. The Bill will not apply to some others and they will be released. The extra period of detention will enable the gardaí to extract the information that is required to deal with the persons brought in for questioning, but to go one step further will put people who were not intended to be caught under the Bill in danger of making a commitment or giving some information through fear, lack of knowledge, lack of advice or possibly because of the measures we will introduce that would be difficult to reconcile during their trial. To go the extra step might not be the correct way to deal with this.
If we remove the right to silence, some drug barons will be clever enough to comply with the requirement to make a statement by using terminology that is meaningless. It will be such a rigmarole that it will be useless to the gardaí. If the gardaí tried to use the information it could be a waste of their time but then an inference could be drawn in court that the person was misleading them.
The amendment is a step too far in a Bill which introduces substantial advances in law.
I hesitate to put obstacles in the way of Deputy O'Donnell's amendment. This is a well thought out lengthy amendment which is close to her heart and she has been thinking about this matter for a long time. Deputy O'Donoghue gave a fair summary of the current position regarding drugs and the public attitude to them. I hardly disagreed with one word he said. I am reluctant to criticise either Deputy because both have thought deeply about this.
Last week a former taxi-driver was given a three year imprisonment sentence for going to Dublin in a taxi and buying hundreds of thousands of pounds worth of Ecstasy tablets. He refused to give details of the source of the purchase on the grounds that his life would not be worth a penny candle, in other words, it would be snuffed out.
I do not think the Deputy is supposed to use that cliché.
In some cases in Limerick young people have been caught with hash, as a result of the Garda being tipped off by the people who sold it to them. They catch the small fry and bring them to court. In one case, the parents of a young person were very distressed when they came to see me because they had never been in court before. Their son or daughter was brought before the court for having a small amount of hash but those at the top are dealing in it with impunity. If I found young people taking hash, I would caution them and let them off because they are only harming themselves. There must be balance in this matter.
On the other hand, there is the fly-on-the-wall syndrome to which Deputy O'Donoghue referred. I read about the late General, the so-called Monk and the Boxer. These people who all seem to have nicknames have been defying the law with impunity for ten or 20 years. They are hardened criminals who have been coached on how to avoid answering questions whereas a young person who goes into a Garda station is often disoriented and terrified. Deputy O'Donnell should remember the Kerry babies case in Deputy O'Donoghue's constituency. I read four books on that case and I was horrified that a women was made to confess to a crime with which she was unconnected. She was framed. That was a dreadful case. I do not know whether any of the gardaí involved were ever disciplined or removed, but it was wrong.
A young person brought into a Garda station should be treated differently from hardened criminals but the law would suggest everybody must be treated equally. We are not after young people who foolishly dabble in hash once. They should be given a caution and not brought before the courts. If this measure would bring the drug barons to justice, we would support it but we must keep some kind of balance between the rights of ordinary people and nailing these drug barons.
The Bill contains a series of technical measures, such as speedier warrants, longer detention, plainclothes gardaí going into dance halls and customs officers working with gardaí, which will assist the Garda in the fight against drugs. None of those measures will be particularly useful against the so-called barons. They will be very useful and effective in the day-to-day Garda fight against the whole network of drug dealers throughout Dublin and the rest of the country. I welcome the Bill for that reason.
Regarding questioning in Garda stations and people watching points on the wall, it might be in order to pay tribute to Veronica Geurin's effective questioning of the Boxer as reported in The Sunday Independent of 16 June. As he gave up attempting to answer her questions, it became clear precisely from where he was making his money.
I cannot accept amendments Nos. 35 and 36 because I do not favour dealing with such a complex issue as the right to silence in such a piecemeal way as an amendment to this Bill. One only has to listen to the breadth of the debate here to recognise that this is not the way to proceed. It is not that I am unconcerned about the comments which have been made both here and publicly about the use of the right to silence or due to any unwillingness on my part to examine the right to silence but this is not the appropriate way to do it.
I want to correct a few misconceptions which may have been put forward. There is no unqualified right to silence in Irish law. The general rule which is in line with the general constitutional protection against self-incrimination is subject to a number of statutory exemptions, so perhaps I should remind Members of these. Under the Criminal Justice Act, 1984, sections 18 and 19 allow a court or jury to draw inferences from an accused's failure or refusal in the course of Garda questioning to account for certain matters, such as marks on his or her person or clothing, or the person's presence in the vicinity of a crime. These inferences cannot be drawn unless the accused has been told in ordinary language what might be the effect of failing or refusing to provide the relevant information. While inferences can be treated as amounting to corroboration of other evidence, the Act specifically provides that they alone cannot form the basis of a conviction.
It is important to sound a note of warning that there is no unqualified right to silence and people have been convicted with the use of corroborating evidence in instances where they did not account for marks on their clothes or their presence in the vicinity of a crime. There are clear limits to what any changes would be able to achieve. It is difficult to imagine that a change in the existing right to silence would do away with the need to have corroborating evidence just because someone would not speak as that would never be allowed under Irish law.
As the debate progresses, I get a little confused. The committee has just debated an amendment in the name of Deputy O'Donnell which, in order to protect people in custody, attempted to reduce the duration of the warrant so that the Garda would have to make another case to get a warrant. That was a protection against the Garda abusing a warrant. With one fell swoop, this amendment involves a major change in how somebody can behave during questioning, so there is an inconsistency. The purpose of Deputy O'Donoghue's amendments was that the case for extended detention could be made ex partie so at least he is being consistent in agreeing with this, but there is a degree of inconsistency as to who these amendments aim to protect.
One amendment protects people in custody while another does away with it by suggesting this should be done. A commission of experts examined the right to silence in a neighbouring jurisdiction and stated there was no conclusive evidence to show that silence was disproportionately used by professional criminals or to support the belief that silence in the police station led to an improved chance of acquittal. There is a growing body of jurisprudence under the European Convention on Human Rights that believes a privilege against self-incrimination is an implicit element in the right to a fair trial guaranteed by Article 6.1 of the Convention. This, in turn, has implications for the exercise of the right to silence. Some key cases in this area have recently been decided or are awaiting a decision and in my examination of the right to silence, which I have already signalled I will do, I will take into account those decisions based on the European Convention on Human Rights.
This is not an appropriate way to deal with something as complex as the right to silence. I hope the Deputy who tabled this amendment will realise that and allow the Bill to proceed without it. I cannot accept it nor am I not able to indicate that I could accept it on Report Stage. This is not the right way to deal with something as complex as the right to silence.
I am disappointed the Minister feels this is not an appropriate way to deal with the right to silence. Previous attempts by my party to address the need to reform the law on the right to silence were voted down by this Government. It is disingenuous of the Minister to say it is not appropriate at this time to review the law on the right to silence. I understand it is Fine Gael policy to review this law.
That is what we are doing.
Rather than it not being an appropriate time, it is not the appropriate Government to reform the law on the right to silence just as it is not the appropriate Government to reform the bail laws because of ideological differences within it. This Government is not capable of introducing these much needed reforms. The Minister confirmed to this committee that it is Fine Gael policy to review the law on the right to silence. Will this be done in conjunction with the reform of the bail laws?
There are a few latter day converts on the Opposition benches. Is the Deputy pressing the amendment?
Yes.
Amendment put.
The Select Committee divided: Tá, 9; Níl, 13.
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Tá |
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Browne, John (Wexford). Fitzgerald, Liam. Keaveney, Cecilia. Kenneally, Brendan. |
O'Dea, Willie. O'Donnell, Liz. O'Donoghue, John. Wallace, Dan. Woods, Michael. |
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Níl |
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Bhamjee Moosajee. Bradford, Paul. Browne, John (Carlow-Kilkenny). Flanagan, Charles. Gregory, Tony. Kemmy, Jim. |
McGinley, Dinny. McGrath, Paul. Mulvihill, John. O'Keeffe, Jim. Owen, Nora. Timmins, Godfrey. Walsh, Eamon. |
Amendment declared lost.
Amendments Nos. 36, 36a, 36b and 36c not moved.
Section 8 agreed to.