Dáil Éireann - Volume 367 - 27 May, 1986

Private Members' Business. - White Paper on Treatment of Persons in Custody in Garda Stations: Motion.

[221] Minister for Justice (Mr. Dukes): I move:

That Dáil Éireann takes note of the White Paper entitled “Treatment of persons in custody in Garda stations”: proposals for regulations to be made by the Minister for Justice.

The White Paper which the motion asks the Dáil to take note of contain proposals for regulations to be made by me about the treatment of persons in custody in Garda stations. Section 7 of the Criminal Justice Act of 1984 requires me to lay these regulations in draft form before each House and provides that the regulations cannot be made until they have been approved by both Houses. The House may wonder, therefore, why there should be a debate on the proposals when there will be, in any event, a further debate on the draft regulations themselves.

The reason is that section 7 of the 1984 Act does not provide that the House may make amendments to the draft regulations. Without a motion of the kind we have here this evening, there would be no opportunity for the House to make its views known on the proposals and to have them taken into account before the draft regulations are made and laid before it for approval. I therefore decided, with the agreement of the Opposition spokesman, to follow this particular procedure so that we would have the opportunity of having a substantive debate before the draft regulations come before the House.

As regards the proposals themselves, the most important are, perhaps, those dealing with the responsibilities of the member in charge, the provision of a custody record for each person in custody, the information to be given to arrested persons and the special provisions for persons under 17 years and the mentally handicapped. The proposals also deal with a wide variety of other matters such as the circumstances in [222] which persons in custody can be questioned and the procedure to be followed in relation to visits, foreign nationals, searches, medical treatment and complaints.

The key provision is that making a readily identifiable member of the Garda Síochána responsible for overseeing the application of the regulations. This member, the member in charge, will normally be a sergeant and a written record must be maintained in each station containing the name and rank of the member in charge at any given time. Except where the number of persons in custody make it impracticable, the regulations will require the member in charge to visit persons in custody from time to time and make any necessary inquiries. The member in charge will also be responsible for contacting solicitors and other persons requested by the person in custody and, where the regulations allow a departure from the standard procedures as, for example, where a person is to be questioned at night, that member's authority will be required before questioning can take place.

The custody record will provide a full account of the detention of the person to whom it relates. The information to be recorded in it includes such matters as details of the arrest, interviews, searches conducted and any requests made by the person and the action taken. The member in charge will be responsible for the accuracy and completeness of all entries in the record and this will be without prejudice to the responsibility of any other member for the accuracy and completeness of any entry which he or she has made.

In line with the provisions of the Criminal Justice Act, 1984, arrested persons must be informed of their entitlement to consult a solicitor and to have one other person notified of their detention. A person under 17 years of age will also be informed that a parent or guardian is being told of the detention. These provisions will apply to all persons in custody and in this respect they go beyond what is required by the Act, which applies only to those detained under section 4 of the [223] Act or section 30 of the Offences Against the State Act. The giving of that information and the time it takes place will be recorded in the custody record. In addition, the regulations will provide for arrested persons to be informed of the offences for which they have been taken into custody. There is also provision for reasonable access to solicitors.

Special provision is made for young persons in custody. This includes a prohibition on questioning in the absence of a parent or guardian except in certain limited circumstances. Where, exceptionally, a young person is to be questioned in the absence of a parent or guardian, arrangements must be made for the attendance of some other responsible adult, not a garda, if this is practicable. These special provisions also apply to those over 17 years who may be mentally handicapped.

In preparing these proposals regard was had to the various suggestions put forward by Members of this House during the debate on the Criminal Justice Bill, to the code of practice recently adopted in England and Wales and to the recommendations of the Ó Briain Committee. That committee was appointed to recommend safeguards for persons in custody and for members of the Garda Síochána and it reported in April 1978. Following publication of its report the then Government indicated that it had decided to accept the recommendations subject to a number of exceptions and reservations. The relevant chapter of the Garda code dealing with the treatment of prisoners was subsequently revised to incorporate the recommendations that were accepted. Some of the recommendations are of course outside the scope of the regulations now proposed.

The Ó Briain recommendations that are relevant to the treatment of arrested persons are, with very few exceptions, being implemented in the proposed regulations, with minor modifications in some cases. The regulations go further in several aspects and cover matters not dealt with in the Ó Briain report — for example, searches, medical treatment, special [224] provision for young persons and the mentally handicapped, and so on.

There are two recommendations relevant to the regulations that are not being implemented. The first is that, where the person in custody asks for a named solicitor, questioning should not commence until a reasonable time, between one and two hours in most cases, has elapsed for his attendance. The second is that a solicitor should be entitled, as of right, to attend questioning as an observer. In considering these recommendations the Government — as also the Government then in office — had to bear in mind the interests not only of arrested persons but also of the community at large in having crimes properly investigated.

The fixing of any particular period before which questioning could not commence, such as was suggested in the report, would give rise to obvious practical difficulties. It could bring into question admissions volunteered by the suspect while waiting for the solicitor to arrive. And it would prohibit questioning even where that was urgently necessary to avoid, say, a risk of injury to persons, serious damage to property, destruction of evidence or escape of accomplices. The then Government agreed that a reasonable time for the attendance of a solicitor should be allowed before the person in custody was asked to give a written statement and the regulations propose to continue the practice which has existed since then.

With regard to the recommendation that a solicitor should be entitled to attend the questioning a person in custody as an observer, the Government is not disposed to accept this proposal. It must be borne in mind that when a solicitor arrives at a station, a suspect will have the opportunity to consult with the solicitor privately and to receive appropriate advice. In the context of the report of solicitor's subsequent presence as an observer during the interview must only be intended to provide a guarantee against oppressive questioning or false allegations against the gardaí conducting the interview. In the Government's view this objective is adequately secured by [225] the safeguards proposed to be provided in the regulations, particularly the responsibility placed on the member in charge, by periodic visits to the person in custody and otherwise, to ensure that the regulations are being complied with. Of course the only definitive and objective answer to providing such a guarantee is the introduction of electronic recording of questioning of suspects to which I will refer later. In all this it is necessary to strike a balance between the public interest in the fair treatment of suspected persons and the public interest in the detection of crime, particularly serious crime, and bringing to justice those who commit it. We have to take into account also the fact that, as compared with other countries, the period for which the Garda will be able to detain persons suspected of non-subversive crime is comparatively short — a maximum of 12 hours during which questioning may take place.

The Ó Briain Committee also recommended that a person arrested and brought to a station should have a custodial guardian assigned to him or her by the station sergeant or senior garda present; in section 30 cases, the custodial guardian was to be assigned by a chief superintendent and to be at least of inspector rank. The proposals do not give effect to this recommendation in so far as it appears to have been the committee's intention to have an individual custodial guardian assigned to each person in custody. Such an arrangement would be impracticable. Under the proposals, which give effect to section 7 of the Criminal Justice Act, the member in charge of the station will be generally responsible for the welfare of all persons in custody in that station. No special provision is being made in this respect for section 30 cases.

I do not think the House will want me to go into the details of the proposals at this stage. Most of them are, of their nature, self-explanatory, but there is one reference that appears to have caused some difficulty and that is the reference in regulation 16 to, “persons other than [226] arrested persons”. This has been interpreted as meaning persons who have come voluntarily to a station and are not under arrest. However, it is clear from the text of the regulation itself that the persons referred to in it are persons who are in custody so that it could not apply in the type of case mentioned. The confusion may have arisen because the heading to the regulation does not contain a reference to the persons in question being in custody.

At all events, the persons covered by this regulation are mainly those who are in custody in a Garda station after being remanded in custody by a court or peace commissioner. They would be persons in custody awaiting transfer from the courts to prison or persons in transit from prison to the courts. Many of the provisions relating to arrested persons would not be appropriate to those persons, for example, the provisions about questioning. Regulation 16 makes the necessary modifications. Of course, the subsequent regulations, Nos. 17 to 24, apply to all persons in custody, whether they have just been arrested or not.

Another point I should make clear is that the proposals do not affect the Judges' Rules in any way. The new regulations will supplement the rules, not replace them. At one time consideration was being given to incorporating the rules, in an up to date form, in the regulations but this was decided against because, for one thing, the regulations can be made to apply only to persons in custody in Garda stations whereas the rules apply also to persons suspected of crime who either are not in custody or are in custody elsewhere than in a Garda station.

The proposed regulations are part of a series of measures undertaken by the Government in fulfilment of their programme on taking office. They are designed to strengthen the powers of the Garda Síochána in investigating serious crime while, at the same time, providing adequate safeguards for persons in custody as well as for the gardaí, who are frequently the object of false accusations of ill-treatment by persons who hope that [227] by making them they will have their confessions declared inadmissible. These measures are the Criminal Justice Act, the Garda Síochána (Complaints) Bill and the proposed regulations we are now considering.

The new complaints machinery and the regulations must be in operation before the detention and certain other provisions of the Criminal Justice Act can be brought into force. When that has been done — and I hope the complaints Bill can be passed and the regulations made before the summer recess — we shall have in place a statutory framework that can I think be claimed to achieve a proper balance between the interests of accused persons and the interests of the community — on whose behalf the gardaí act — in investigating crime and bringing those who commit it to trial.

There is one more safeguard which is also provided for in the Criminal Justice Act and which is still to come. That is the provision of electronic recording of the questioning of persons in custody. The committee which my predecessor, Deputy Noonan, appointed to consider the matter propose — with my approval — to conduct field trials in this area once the detention provisions of the Criminal Justice Act are in operation. I hope these trials will provide within a reasonably short time sufficient information to enable a satisfactory system to be adopted generally. In the meantime the committee are profiting from the experience of other countries which have already adopted recording systems or are carrying out pilot studies. I believe that recording of questioning is the most effective means of protecting the gardaí from false allegations of oppressive treatment and I look forward to the time when it is in general use.

As I said at the beginning, I am moving this motion so as to be able to ascertain the views of Deputies on the proposals in the White Paper before coming back to them with draft regulations for approval. I want to assure the House that when the regulations are being finally drafted I shall give very careful consideration to [228] any suggestions that Members may make in the House.

Dr. Woods: I should like to welcome the motion and assure the Minister that our comments on it will be constructive. Almost three years ago when the then Minister for Justice introduced the Criminal Justice Bill, 1983, I proposed that the new Garda powers of arrest and detention on suspicion should be accompanied by two balancing measures, an independent commission for investigating complaints against the Garda Síochána — I gave it the title, the Garda Síochána Complaints Commission — and a set of safeguards for the treatment of persons in custody in Garda stations.

Those measures were included in an extensive series of amendments which I put forward on behalf of Fianna Fáil on the Committee Stage of the Bill. We outlined in considerable detail the type of safeguards we considered necessary to go along with the new powers being created. We proposed that, if a person was being detained in a Garda station between midnight and 8 a.m., no questioning for the purpose of investigating an offence should take place during that period unless the member in charge certified in writing that he had reasonable grounds for doing so.

I outlined the protections I felt should be included in the Bill. I proposed that, where a person was arrested and brought to a Garda station, the member in charge of the station should enter in the record of the station without delay details of the arrest. I outlined what should be entered into that record or, as the Minister described it, the custody record. We proposed that questioning should not exceed four hours, that there should be a break and visits to detainees. We also raised the question of electronic recording of the questioning of the person detained. In another amendment we dealt with the establishment of a Garda Síochána complaints commission.

On Report Stage we went further and produced suggestions in regard to regulations. However, the Minister refused to consider our suggestions as part of the [229] Bill or in parallel with its passage through the Dáil. I thought it should have been possible to include the measures in the Bill or in a document to be put through the House at the same time. At that time the Government adopted an unusual procedure by producing a supplementary memorandum to go with the Bill. In that the Government gave an undertaking to establish a complaints procedure involving an assessment by an independent person or tribunal. It was stated then that it had not been decided whether legislation would be necessary to establish such a procedure or whether it could be introduced on an administrative basis.

I pointed out at that time that the new complaints system had been incorporated in the Police and Criminal Evidence Act, 1983, in Britain. It was my view that the measure should have been included in the Bill or taken in parallel. The implementation of the new powers for the Garda Síochána depended on the introduction of the safeguards for persons in custody and the new Garda Síochána complaints procedure. It is interesting to note what happened in relation to this. People often say that the Seanad has no relevance. Last Saturday was the first Saturday in 12 years that the Seanad sat.

Mr. Dukes: A most interesting day it was.

Dr. Woods: I am sure it was. I am sorry I was not there to participate in it with the Minister.

Mr. Dukes: The Deputy would have learned a lot.

Dr. Woods: We ran out of time here the other night. We could have gone on. If they had allowed us into the Seanad, we would have been all right.

Mr. Dukes: We strolled out of time.

Dr. Woods: In any event, the Seanad on that occasion did not agree with the Minister and felt that something more definite should be done about this aspect, and that there should be a very definite [230] commitment to the inclusion of these in the Criminal Justice Act and that the powers should not be given until these were enacted. This tended to come back to the situation suggested to the then Minister, the result of which was the Seanad made an amendment which reads as follows:

(2) An order shall not be made under subsection (1) in respect of any of the following sections namely, sections 4 to 6, 8 to 10, 15, 16, 18 and 19 until provisions relating to the investigation and adjudication of complaints by the public against members of the Garda Síochána not above the rank of chief superintendent have been enacted by the Oireachtas and have come into operation and until regulations under section 7 have been made.

The Minister accepted the amendment which came back to this House from the Seanad. The Minister put it before the House which does not happen very often. At that stage I proposed an amendment to the Seanad amendment as follows:

. . . have been enacted by the Oireachtas for the investigation and adjudication of complaints from the public against members of the Garda Síochána by or under the direction of an independent complaints commission and until regulations under section 7 have been approved by the Oireachtas.

The Minister accepted that he had to include these before he went ahead with the new powers. On Report Stage in the Dáil we proposed an amendment. There was agreement at the end on the following amendment:

. . . of complaints from the public against members of the Garda Síochána not above the rank of chief superintendent and the adjudication by a body other than the Garda Síochána of such complaints have been enacted by the Oireachtas and have come into operation and until regulations under section 7 have been made.

The procedure at that time was very interesting. It led finally to the Criminal [231] Justice Bill. Section 2 contains that amendment. Those sections of the Criminal Justice Act have been lying in abeyance since that time. The other sections of the Act which were very valuable, helpful and useful went into operation in the interim period.

As a consequence of this approach by the Government, the new Garda powers in the Criminal Justice Act, 1984, have remained in cold storage for two years. The power of arrest and detention on suspicion to enable the Garda to question a suspect initially for six hours and on extension for a further six hours has not yet been given to the Garda. If, as the Minister suggested, the new powers would greatly assist the Garda in their work, they should have been made available without delay. The measures we put forward in 1983, with amendments where considered necessary, would have made this possible two years ago. I accept fully that the Minister, his Department officials and the Attorney General might have had suggestions and amendments to make but that could have been done at that time. This would have brought into operation the powers the House gave under the Act.

It is noteworthy that the Minister's proposals are to be cited as the Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Stations) Regulations 1986. This presumably means that safeguards are to be applied only in association with arrests under the Criminal Justice Act, 1984, or the Offences Against the State Act, 1939. The Minister said they apply specifically to those areas with the limited exceptions which the Minister mentioned, particularly the aspects which apply to under 17 year olds and the mentally handicapped. These are very welcome steps and measures which have resulted from very thorough and comprehensive debate in the House. Naturally, we welcome them.

The method of discussing the Minister's proposals by way of a motion is a most unsatisfactory procedure for dealing with such an important series of safeguards. The Government should have [232] placed a more comprehensive measure before the House so that it could be amended, as necessary. I appreciate the position the Minister is now in as a result of the amendment which eventually went into the Act. The Government should also have broadened the range and scope of the regulations to cater for persons generally who are being questioned in Garda stations and to safeguard members of the Garda Síochána. The present proposals relate only to persons who are in custody in Garda stations. They do not necessarily apply to persons who are helping the Garda with their inquiries. I appreciate that the extent to which they would apply in helping the Garda with their inquiries would very because some of the circumstances would be different. There is a need to apply the major part of these measures to people who are helping the Garda with their inquiries.

It will be remembered in the Kerry babies case the Hayes family had not been arrested. They were simply helping the Garda with their inquiries. In future, the safeguards which are intended to protect citizens and gardaí alike should apply to all cases where persons are questioned in Garda stations. The report of the committee chaired by Mr. Justice Barra Ó Briain in 1978 set out the principal measures which should be adopted in this area. Looking back on that report, as we did at the time of the debate on the Criminal Justice Bill in 1983 and into 1984, it seems to have been an excellent report with very valuable suggestions. While the Minister may have found that some of them were not practicable, he would have to admit that the bulk of the proposals were very relevant and useful. I am glad they are now being brought into operation.

On page 15 of that report the committee recommended that the practice of taking people to a Garda station to be questioned to help the Garda with their inquiries should be discontinued. From a practical point of view I can recognise that the Garda and the Minister might see difficulties in that, in that very often people will go very obligingly and freely to help the Garda with their inquiries. That being the case, it is all the more [233] important that they too should have the protection of the measures which the Minister is introducing and which are required to bring into operation the powers in the Criminal Justice Act. The Ó Briain study followed serious allegations concerning the interrogation of suspects in the mid seventies under the then Coalition Government.

The report, as I have said, was a very comprehensive one. It dealt with most of the elements mentioned in the Minister's proposals at this stage, including a complaints tribunal which will be dealt with separately by the Minister. The Committee Stage of that Bill is coming up in the House in the near future.

Since the time of the Ó Briain report the need for such safeguards has been reemphasised by the death of Peter Matthews in Shercock Garda station, the Kerry babies case, with which everyone is familiar, and the Rory Buckley Pro-Life Amendment questioning. That was a very interesting case and I would advise the Minister to read the affidavit submitted in that case. I regard that person as a very reliable witness and he was questioned under the Offences Against the State Act. I would refer at this point to the Minister's speech in which he said:

We have to take into account also the fact that, as compared with other countries, the period for which the Garda will be able to detain persons suspected of non-subversive crime is comparably short — a maximum of 12 hours during which questioning may take place.

That Act has been used in cases which clearly were not of the subversive type. The Rory Buckley case is a classical example of the use of the Act. I do not disagree generally with the Minister in what he said in that respect but he must be aware that it has been used in other circumstances in which the crime is not of the subversive type. That case involved malicious damage to a £15 photocopying machine and the person spent 24 hours in custody and was questioned for most of that time, with rest periods.

[234] That case fairly strikingly brought forth the circumstances in which questioning takes place. Another was Amanda McShane in Crumlin Garda station. All charges were dropped when it transpired that when she was being questioned in the station by detectives in relation to a post office robbery a solicitor discovered a document written in the first person purporting to implicate Miss McShane in the crime, but the document was unsigned and she had not made any admissions to the Garda. There is the case of Michael Ward who confessed to committing 26 burglaries, nine of which were committed while he was in Mountjoy Prison. There is another case in which a person was being questioned in Malahide Garda station. He received substantial damages in a court action later.

These were different kinds of cases and indicated that circumstances can arise in which both members of the public and the Garda would benefit from the protection of the measures the Minister is suggesting. The presentation of these proposals, although two years after they were raised on the Criminal Justice Bill, represent a step forward. We welcome the setting out of clear and explicit regulations which will be open to inspection by the Garda and the public at large. These proposals take into account many of the suggestions I made during the passage of the Criminal Justice Bill and measures already taken by the Garda but which had not been made so explicitly known to the public. The Minister dealt with some of these in his speech, but setting these out in a clear, explicit way in a document to which citizens generally can refer and be aware of is important.

The inclusion of these measures in statutory regulations will be an important protection for members of the public and the Garda. I will not go into cases in which the Garda have expressed concern but I have been approached by gardaí who in relation to their colleagues would have welcomed the protection of some measures like those to which the Minister referred.

Notwithstanding this, I must point to a [235] number of defects, omissions and weaknesses in the Minister's proposals. The safeguards should apply to all citizens being questioned in Garda stations, even if at the time they are not in custody. Persons who are helping the Garda with their inquiries must be safeguarded and the rules which apply to them must be explicit and clear. Those who co-operate voluntarily with the Garda must know that they are free to leave if they so desire. They must also know what their legal status is while they are in a station and if and when their status as persons assisting the Garda changes to one of being in custody.

It is noteworthy that no provision for the video or other forms of electronic recording of interviews has been made in the Minister's proposals. An indirect reference to a possible future introduction of electronic means is made in section 12 (10), which deals with interviews generally, but the Minister has not set out his proposals in this regard. In his speech he referred to this as follows:

But there is one more safeguard which is also provided for in the Criminal Justice Act and which is still to come. That is the provision of electronic recording of the questioning of persons in custody. The committee which my predecessor appointed to consider the matter propose — with my approval — to conduct field trials in this area once the detention provisions of the Criminal Justice Act are in operation.

I understand that these field trials have been going on for some time. They were done in Scotland and England before the Minister's arrival in the Department of Justice. We understood that what the Minister now refers to as “field trials” were pilot studies which would yield information to the Minister which he could use. With the Minister's approval, the committee will conduct field trials once the detention provisions of the Criminal Justice Act are in operation. Obviously, the Minister thinks it would not be possible to get much information [236] on that in advance of making these new measures available.

Questioning under the Offences Against the State Act is being carried out from time to time. Whenever we ask for figures we are told there are not many charges in court. The questioning has decreased in recent times but it should have been possible to have carried out these field trials so that we would now have more definite information. The Minister said today:

In the meantime the committee are profiting from the experience of our countries which have already adopted recording systems or are carrying out pilot studies. I believe that recording of questioning is the most effective means of protecting the Garda from false allegations of oppressive treatment and I look forward to the time when it is in general use.

I should have thought it would have been possible to set up some field trials long before now in order to get information. It could have been done to consider the extent to which video recording might be used. An argument made is that if an electronic tape recording is made a person might not be too happy about giving information but obviously that would not apply if a video recording was in operation. I had hoped that the Minister would have made some progress with regard to pilot studies and trials in connection with this matter and I am disappointed that progress has not been made. It appears the committee are only planning to conduct field trials when the detention provisions of the Criminal Justice Act are in operation. That is putting it a long way down the road. Even if the legislation dealing with the complaints procedure is passed by the House before the summer recess, the provisions will have to be in operation before the Criminal Justice Act can be implemented in full. I ask the Minister to consider the matter in an effort to have some progress made. In my innocence I understood pilot studies were proceeding. In fact, I think we were told in this House that such studies were about to start.

[237] The Minister has accepted the need to limit the duration of continuous questioning to a maximum of four hours. That was the period I proposed by way of amendment to the Criminal Justice Bill. However, I also suggested a break of one hour before the next questioning period began. The Minister allows only for a reasonable interval between periods of questioning. That is highly subjective. A minimum interval should be included, as was also suggested in the Ó Briain report, between consecutive periods of questioning. There should be a clear indication of the interval necessary after four hours of questioning. To most normal citizens — I am not talking about hardened criminals — the circumstances under which questioning would take place would be somewhat frightening and disturbing.

One of the dangers in psychological pressure that can be applied during periods of serious and intensive questioning is that of disorientation. The loss of any sense of time is a disorienting factor and this is used in some jurisdictions to wear down the person being interrogated. To guard against such an abuse we propose that the person being questioned should be permitted to retain his or her watch and if this is not done it should be possible for them to see a clock.

We also propose that the person questioned should be provided with writing materials if requested so that they could keep necessary notes during the course of the interview. As I said at the time by way of amendment, they should be entitled to make and to retain notes in writing to assist with recall and memory should the matter be brought subsequently to court. This would help to avoid subsequent disagreement and conflict regarding matters discussed during questioning. It would protect both the members of the Garda and the person being questioned and would ensure better quality evidence in the interests of securing the conviction of the guilty. It is well known that dishonest allegations are often concocted by accused persons long after the questioning in a Garda station. The keeping of notes would help to prevent this and a jury would be in a better [238] position to place greater reliance on confessions made in Garda stations. At the time the Minister said he would look into the matter and he said it might be done. If I remember correctly, he said he would speak to the Commissioner about it. However, more than that is required. It should be a standard procedure on request. I know it is done in some cases and the Minister might consider including such a provision.

The Minister has made no provision for those arrested on suspicion under the Criminal Justice Act and who cannot afford to engage a solicitor. The Act made provision for solicitors and there was much debate and discussion about the matter at the time. If a person is in a Garda station for questioning one's advice would be that he should contact his solicitor or get the solicitor to ring the station on his behalf so that the superintendent or gardaí in the station would know the solicitor had an interest in the matter. That could be helpful to the person detained but if he has not the resources to get a solicitor that provision will be of little use to him. The free legal aid scheme applies only from the time a person is charged. The Ó Briain Committee recommended that a feasibility study be undertaken, in conjunction with the Law Society, of a scheme involving a panel of duty solicitors who would be available when a person in custody required the advice of a solicitor. The Minister should say if this study has been undertaken and he should indicate his views on the matter.

The section on inquiries seems to cover adequately the points raised in the debate on the Criminal Justice Act. There is a requirement to notify the district headquarters, or in the Dublin metropolitan area a designated station, that a person had been held in custody at a certain Garda station. This meets the fear that there could be difficulty in locating the whereabouts of the detained person. However, this does not apply to persons who are voluntarily helping the gardaí with their inquiries. Their position needs to be clarified. I appreciate that in most circumstances they are less likely to be [239] moved from one station to another and, therefore, the extent to which it would apply to them would be limited. Nevertheless, this matter should be given some consideration. There are examples of cases where people were moved from one station and their relations could not contact them. This led to considerable difficulties when the cases came to court and a great deal of legal argument ensued. If the Minister allows this provision it will be most useful. The Ó Briain Committee suggested that a central agency be instituted in every Garda district for recording the whereabouts of every person taken into custody. They went on to make that a firm recommendation. I recognise that in a very practical way the Minister has met that requirement in his proposals.

Basically, the Minister's proposals are welcome. I would like to refer briefly to the Select Committee on Crime, Lawlessness and Vandalism which produced a report entitled “Safeguards for Persons Being Questioned in Garda Stations and for Members of the Garda Síochána,” When the all-party committee considered the safeguards for persons in custody they had to consider also persons in the Garda stations who were not in custody. That is why they broadened the title to “Persons being Questioned in Garda Stations and for Members of the Garda Síochána”

The recommendations of that committee followed the Kerry babies case. The committee in their report on the tribunal of inquiry into the Kerry babies case found that there was no assault on or physical abuse of any member of the Hayes family or Bridie Fuller by any member of the Garda — chapter 37, summary No. 28. The committee further noted that the tribunal found that Joanna Hayes, Kathleen Hayes, Ned Hayes, Mike Hayes and Bridie Fuller were, from the strict legal point of view, voluntarily in Tralee Garda station on 1 May 1984 and were not under arrest. “From the practical point of view, however, they all believed they were in custody and not free to leave the station until they should have satisfied the Garda as to their role [240] in the birth and death of the Caherciveen baby, and this belief added to pressure on them to confess to involvement with that baby” — chapter 28, summary No. 30.

In the body of the report itself the tribunal stated that none of them appreciated their rights or their status as persons in the Garda station — chapter 32, freedom, page 138. The committee wished it to be clearly understood that they were not making any observations on the findings of the tribunal. However, the committee considered that the findings of the tribunal——

An Ceann Comhairle: Is it clear from the facts arising out of that inquiry that this is not sub judice? The Chair is not absolutely clear but I understand there may be certain High Court actions still pending.

Dr. Woods: I am only referring to this in the context of the Committee's decision in regard to what the safeguards mentioned in the Ó Briain report should be in cases like this.

An Ceann Comhairle: I am not absolutely clear, but I think there may be High Court actions pending by members of the Garda arising out of disciplinary measures taken following the report of the Kerry babies case. If that is so, then the Chair is of the opinion that it would not be advisable to enter into a discussion on the report.

Dr. Woods: There is no need to do that; it was only a passing reference. The committee recommended that the following safeguards should be provided for persons who were taken into custody under the provisions of the Criminal Justice Act, 1984. They recommended that a member of the Garda Síochána not involved in the investigation, called a custodial guardian, should be assigned to each person taken into Garda custody. The committee spelled out the responsibilities of the custodial guardian — advising persons of their rights, ensuring they [241] understand such rights, the general wellbeing of such persons, including medical attention if necessary, ensuring persons are treated humanely and are provided with adequate food if in the Garda station for a long period of time, ensuring that efforts are made to contact the person's solicitor, family or friend, ensuring that adequate records are kept, in particular, any complaints made and action taken, and certifying that the person has been treated properly in accordance with the regulations. The committee also recommended that electronic recording of interviews should be introduced as quickly as possible on a trial basis. Those recommendations were made on 22 January 1986.

The committee also considered that each person, provided there is no risk involved, should be allowed to retain his or her watch, and suitable accommodation needed to be provided for the questioning of persons, which should not last for longer than four hours followed by one hour's break. The committee recognised that there may be practical difficulties for those members of the Garda Síochána who are appointed as custodial guardians — for example, where the custodial guardian holds a lower rank than the investigating officer. While recognising such difficulties, the committee were of the view that the safeguards being recommended are essential.

There is general agreement with the nature of the proposals in the Minister's White Paper. As regards the length of questioning and the need for one hour's break after the first four hours of questioning, in a detailed study on confessions and police interrogation, of suspects, carried out in 1983 by Barry Mitchell, lecturer in law, Coventry Polytechnic — the Criminal Law Review 1983, page 596 — he discovered that nearly 86 per cent of defendants were questioned by the police for less than two hours in total. The normal requirement for questioning was fairly low. Those accused of non-sexual violence were, for the most part, interrogated only briefly. Nearly 89 per cent were questioned for less than an hour. There is a great deal of detail in that [242] study on the kinds of questioning and the nature of crime and it is clear that in most instances, especially those to which the Criminal Justice Act would apply, a period of four hours should be more than adequate and, therefore, one hour's break after that is reasonable.

We support the introduction of the proposed “Safeguards for Persons in Custody in Garda Stations and for Members of the Garda Síochána.” It is important that these measures come into being as soon as possible. I trust that the Minister will give further consideration to the points I have raised in the course of this short debate. I have not gone in detail over all the positive points raised in the White Paper. The Minister has already spelled them out, as I anticipated. Those points have been discussed in this House already. The inclusion of the mentally handicapped was covered in those discussions and I am very glad to see the Minister has covered this point.

As a community we are faced with unprecedented outbreaks of violent crime, burglary and damage to personal and community property. The use of guns and weapons in theft and robbery, the vandalism done to schools, community centres, shops and public property and the extensive invasion of homes and of personal security, have created a new sense of fear and frustration in the community. We have a duty to provide the Garda with the manpower and the means to restore law and order.

The new powers of the Criminal Justice Act are part of the effort to combat crime. They should be implemented by the Government without further delay. We on this side of the House will co-operate with the Minister in a constructive way in examining and discussing both this motion here tonight and the complaints procedure so that the way can be cleared to introduce the measures which are included in the Act but have not yet been able to come into force.

In relation to the Minister's speech, I think I have covered most of the points that came to my notice. The Minister has pointed out that some of these measures and recommendations had been included [243] previously in the Garda code dealing with the treatment of prisoners and were incorporated and accepted there. We have not access to the Garda code and that is very extraordinary. I can have the London police code and I cannot have the one that applies here. I do not come under the category of subversive, but as an Opposition spokesman I think it is sad if not deplorable——

Mr. Dukes: It is not complied today or yesterday.

Dr. Woods: I agree. We have been pressing to have it updated. I knew it existed with all its nuts and bolts and so on. I believe it is available in updated form. The Minister might take that on board when considering these things. We were very impressed by the way in which the London Metropolitan Police made these things available to us when we went to see them and the openness with which they treated us as public representatives in that respect.

Mr. Dukes: The Deputy was very friendly with the London police.

Dr. Woods: They were very helpful, as our report indicates. I think some members of the Garda Síochána went over there afterwards to follow up on some points.

Mr. Dukes: They were there previously. The Deputy had a slight spin on that.

Dr. Woods: I am referring to neighbourhood watch and such things. The Minister has mentioned a number of things not being implemented and I can see the practical reasons he has given for some of these — for instance, the solicitor not being in as an observer all the time, and I must agree with him from a practical point of view. He is making a genuine effort here to meet the requirements in the matters raised in the course of the time in the House. I would like to congratulate his officials for keeping very good [244] notes. I am sorry that they are not over here to give us a hand and keep notes because then probably I could refresh his memory on a few other items that were discussed, but we have not got that kind of time.

All in all, the provisions are very welcome and the sooner they can be put into practice the better. There is a great deal to be said for having them there as clearcut as possible, explicit regulations about which everybody knows and can refer to and which are of a practical nature designed to be helpful to the Garda in the conduct of their difficult work in this regard and also to the members of the public who find themselves in custody in Garda stations.

Mr. McGahon: Shortly after coming into this House almost four years ago I acquired the tag “hang them and flog them” because of my extreme right wing support of the Garda Síochána, and of law and order, and from my stated support for capital punishment for crimes of murder of all types, subversive and any others, and flogging for crimes of violence perpetrated on elderly people by youths. I suppose the phrase “game keeper turned poacher” is not particularly relevant in my case, but I must confess to having changed my mind to some extent. That change was brought about by an experience I had in Drogheda court two months ago when, at the age of 49, never having stood in a court in my life, I was brought in on a trumped up, concocted charge by three young Garda personnel. I was acquitted, but I wonder if I would have been acquitted had I not had the status of TD. When I first consulted a lawyer on receiving a summons that lawyer, an eminent lawyer, told me that had I not been a TD he would be advising me to plead guilty.

That experience made me question the whole spectrum of law and order in this country. I am still an advocate of law and order, a rather extreme one. I still believe in capital punishment for crimes of murder and in flogging for crimes of violence, but I am not the blind advocate that I once was for the Garda Síochána. [245] Had this debate taken place in the early months of this year I would have done what I have done blindly on many an occasion in this Chamber. I would have come in here and voted blindly in support of the Garda Síochána. I can no longer do so as a result of personal experience, and all our views are conditioned by personal experience. The late Justice Eileen Kennedy had to be mugged on the streets of Dublin before she accepted the enormity of crimes of mugging and the terror that mugging brings to elderly people, particularly to elderly ladies, and she admitted so in court and her attitude to muggers hardened. I had to be brought to court in Drogheda on a trumped up, concocted charge to realise the plight that many people must face when confronted by some members of the Garda Síochána. I am still an advocate and supporter of the Garda Síochána and believe that the vast majority of them are decent and upstanding, but there are rotten apples in that barrel as there are in every barrel, in every spectrum of life.

Because of that I am going to ask the Minister to accept the recommendations in the Ó Briain report that anybody who is charged with a serious crime should be entitled as a right to have a solicitor present when questioned. It is not enough merely to give a person the right to contact a solicitor and to take appropriate advice from him. In the context of the report the solicitor's subsequent presence as an observer during the interview must be intended only to provide a guarantee against aggressive questioning or false allegations against the gardaí conducting the interview. What about false allegations against the accused? Does anybody here believe that that does not happen? I must confess that for the greater part of my life I did not believe it happened. I believed that it did not happen because it should not happen, therefore it did not happen; but my views have changed. I do not believe that false allegations against accused are not sometimes arrived by the Garda Síochána. It is imperative that a person has the right to a solicitor being present when he is being interrogated. I do not advocate that the solicitor should [246] have the right to intervene but he should be there as a silent witness to what is asked of the accused and what is said.

The recent adverse publicity regarding the Garda such as the Kerry babies case referred to by Deputy Woods and the terrible tragedy which occurred in Shercock has cast doubt on the Garda Síochána in the view of many fair minded people. The ghost of Peter Matthews has yet to be exorcised in Shercock and the unsatisfactory non-conclusion of that appalling event cast a reflection not only on the Garda Síochána but on the process of law and justice. The events at Shercock should never have taken place and I hope the Minister for Justice will not close the book in that regard. Many more questions need to be asked before the truth is ascertained regarding that tragic event which left a widow and very young children.

My contribution may be perceived as sour grapes, but I do not see it that way. Over the last few months I have had a battle to try to be responsible in my attitude to this debate. I reiterate what I said. I still believe in the concept of law and order and I support the Garda Síochána. However, following personal experience, I am not happy that people should be subjected to hours of interrogation in a police barracks without having a witness present. I ask the Minister to accept the recommendation in the Ó Briain report that a solicitor should be present during questioning.

Mr. Hyland: I wish to make a brief contribution to the debate. I welcome the publication of the new regulations governing the treatment of persons in custody. The regulations announced by the Minister are extremely important but, perhaps of greater significance is the fact that they bring us one step further towards the full realisation and implementation of the Criminal Justice Act, 1984.

In 1983 the House gave long and serious consideration to the need for strengthening legislation which would enable the Garda to deal in a more effective way with the changing pattern of [247] crime and the general deterioration in law and order which, regrettably, were increasingly obvious at that time. It is a reflection on the House that, three years later, we have not provided the Garda with this much needed legislation. It makes a mockery of the lip service paid in this House to the need to support the Garda in their increasingly difficult task of law enforcement and protection of citizens.

Our failure to legislate fully in this area has led to an increasing level of cynicism on the part of the public as they look to this House in desperation for legislative support and protection which they have been seeking for a considerable length of time. This would involve support for the Garda in their difficult task of law enforcement and also for the citizens. I do not want to move from the terms of the Bill but everybody in the House will recognise that, over the past five or six years the level of crime and violence has led to great fear and insecurity on the part of many citizens who perhaps have to reside alone, particularly in isolated areas.

However, having listened to the Minister's speech and read the regulations announced by him, I am happy and satisfied that they go a very long way towards meeting the dual requirements of protecting the citizens' rights and making adequate provision for the Garda. They are broadly in line with the views expressed by our spokesman on Justice, Deputy Woods, on Second and Committee Stages of the Criminal Justice Act. Members will recall the very objective and constructive debate which took place here over a long period of time and which reflected the concern of every Member of the House in relation to reforming the law in this important area. My only regret in regard to the eventual outcome of that objective and constructive debate is that, three years later, we are still debating the additional provisions required to allow the full implementation of the Criminal Justice Act.

The passage of time has not elicited any new thoughts in this essential area of citizen protection which, indirectly, also [248] provides a degree of protection for the Garda in what must be one of the most sensitive and vulnerable areas of Garda duty. The general area of arrest, questioning and interrogation calls for the highest degree of professionalism on the part of the Garda. It has always been, to some degree, a grey area where the citizens and indeed the Garda have been exposed and vulnerable. In the normal cycle of human behaviour, it is inevitable that mistakes are made on both sides and there are many examples of this. Honest and credible examples were given by Deputy McGahon who expressed himself with sincerity and conviction.

It must be said, however, that the number of such incidents has been significantly small in terms of the overall performance of the Garda and within the context of the number of citizens who have been taken in for questioning. It is in the nature of things that those sad and tragic areas receive considerable publicity, as they are entitled to do. In the normal run of Garda duty, the day-to-day events, the success of the Force rarely receives the same level of publicity. We should be careful not to take serious incidents out of context and create an impression that there is something seriously wrong within the overall performance of the Garda Síochána. I know Deputy McGahon did not intend that and gave personal examples of his own experiences.

The Criminal Justice Act, 1984, gives substantial new powers to the gardaí in relation to the detention of citizens in custody for periods of up to 12 hours on arrest on suspicion. While members of the Garda Síochána might not agree with me, I believe this provision strengthens considerably the operations of the Garda Síochána and provides them with additional power in the increasingly difficult area of arrest following suspicion.

The House will agree that the provisions published in these new regulations and insisted upon by us during the debate on the Criminal Justice Bill are essential in the context of the full implementation of all the provisions of that Act. Members of the Garda Síochána in their role as [249] professional police officers will accept these new regulations in the spirit in which they are introduced, not for the purpose of restricting of casting doubt on the integrity of the Garda Síochána but rather for the purpose of legislating for the fullest possible protection for the citizen in the very sensitive area of detention and questioning. This House has a duty to the citizen and to those who are arrested under the provisions of the Criminal Justice Act to provide the maximum level and degree of protection for a person in that situation. I reiterate that the eventual outcome of the long debate on the Criminal Justice Bill will be the putting on our Statute Book of important legislation which will be of immense benefit to the Garda Síochána and will also provide the level of protection which the citizen is entitled to expect from legislators.

The Minister referred to the need for balance and I would be the first to give credit to him in this regard. I am satisfied from the provisions he has announced in these new regulations that a sense of balance will be brought into this very important area.

The new regulations deal with the human behaviour of the gardaí and the citizen, but the entire document and the Criminal Justice Act itself are silent in the area of the structural environment in which these provisions are to be implemented. I am thinking in particular of the inadequate structural facilities in many Garda stations, especially the cells in which citizens are detained, which are often forbidding and not conductive to coherent thinking in the giving of evidence. We talk about the human aspect of the regulations before us, but we also give some thought to the structural aspect and the kind of conditions prevailing following the detention within our Garda stations of persons arrested for questioning. Such an environment is not helpful to the performance of the gardaí. In many of the larger stations they find themselves competing for the limited facilities available. I understand from my contacts with members of the Garda Síochána in this city and other urban areas that the level of structural facilities leaves much [250] to be desired. If this is the case in relation to Garda performance, it must also have a bearing on the psychological attitude of the person taken into custody for questioning. Although it is not perhaps directly relevant to the regulations which have been published by the Minister, it is an area to which he should give some serious thought in the long term.

We have no desire to hold up these important regulations and I would ask the Minister to bring the Garda Síochána (Complaints) Bill to an early conclusion, thereby allowing for the full implementation of the Criminal Justice Act. I was very pleased to hear the Minister say tonight in the House that it is his intention to bring that Bill to a conclusion during this Dáil term. I do not want to be seen as making a political point, but even the Minister will agree that a three-year waiting period in relation to such important legislation is excessive. That is not to cast any reflection on the present holder of the office who has been there only a couple of months.

I am not in favour of hurried legislation. Reasonable delays between the various Stages of Bills allow for mature public debate, often resulting in improved legislation, but I do not think anybody would say that a timelag of three years is necessary to bring out the best in the public and among Members of this House in relation to these measures. A time span of three years is excessive. It will be seen as progress if the Minister's ambition is achieved within the present Dáil term. People who are aware of what is happening on our streets, especially the gardaí who have to act on behalf of the citizens, feel they should have the maximum level of support from this House.

The move away from community policing in the true meaning of that term will lead to gardaí having to take risks in terms of arrests on suspicion. The more Garda management isolate gardaí from the community, the more difficult it will be for our gardaí to be fully effective in terms of detection. The old style of community policing was more effective and provided a greater opportunity for individual police officers to become [251] acquainted with the local community and the movements of people within that community. Modern scientific methods have taken us away to some extent from that type of policing, but in our built up areas there should be a return as far as possible to that kind of local involvement between police officers and the community in general.

I believe that we could get the maximum possible return from the community in an environment where the people who administer the law are known to the community and vice versa. Has the Minister any strong views in relation to a change of emphasis in this area? This area is deserving of the Minister's consideration in the near future. In my own county, prison duty and the cut in Garda overtime has resulted in small rural stations being denuded of manpower and neglected. The Minister is shaking his head in disagreement. I certainly do not want to have any conflict across the floor of the House tonight with the Minister. It is a fact. My constituency borders the Minister's own and it would not be difficult for him to establish the facts that I bring to his notice tonight. If the Minister were to speak to any member of the community, particularly in County Laois, he would have to agree that that prison is creating an unnecessary demand on Garda manpower which leads to a reduction in Garda strength.

Mr. Dukes: Would the Deputy like me to move it out of Portlaoise? Extra gardaí were sent to Portlaoise for the prison.

Mr. Hyland: I do not believe for one minute that the Minister is serious about moving the prison out of Portlaoise.

Mr. Dukes: Neither is the Deputy.

Mr. Hyland: There is a strong tradition in that town over a long number of years, and all who have been associated with that prison — prison officers, prison governors and the Garda Síochána — have performed in a very professional [252] manner. I know the Minister is not serious in that suggestion.

I spoke to the Minister in the House last week about the importance of the new training college in that town. I do not want to get away from the terms of tonight's debate but I would urge the Minister to make the maximum possible use of that very modern building. I appreciate very much the Minister's decision to depart from the decision of his predecessor in relation to converting that building into a female prison. As I indicated on many occasions in this House, it is not a suitable building for the detention of offenders. I would like to put on record my gratitude to the Minister for changing the Government's thinking in that regard.

I also urged in the House the necessity for the legislation which we are discussing tonight. I would make the point that in terms of long term economic and social planning we have, to some extent, got our priorities wrong. If more emphasis had been placed on economic and social development resulting in job creation, there would not be the need to channel vast sums of public money into the areas of law and order and citizen protection.

An Leas-Cheann Comhairle: The Deputy is wandering now.

Mr. Hyland: I am just making a passing reference.

An Leas-Cheann Comhairle: That is a long passing reference.

Mr. Hyland: I am just trying to make the point that if the emphasis had been on job creation there would not be the same demand today for the levels of police protection which the community needs at present. I will leave it at that.

Mr. Dukes: It is a very dubious proposition, but we will take it up another time.

Mr. Hyland: It is an interesting one which I am sure the Minister is interested in.

[253] Mr. Dukes: There are a few areas about which we could have a very interesting discussion.

An Leas-Cheann Comhairle: Perhaps the Minister would leave it alone.

Mr. Hyland: It is an area on which we could have a useful exchange of views.

Following the final enactment of the Criminal Justice Act, the public should be made aware of their rights and entitlements under the Act. I am satisfied from the Minister's speech tonight — although it was not obvious in the regulations themselves — that serious thought has been given to creating an awareness on the part of the public of their entitlements under these new provisions, because it is inevitable that the Garda, because of their training, will be fully familiar with all aspects of the legislation and will use that knowledge to their fullest advantage in the detection of crime.

I support Deputy Woods's view that legal aid should be available to those who are helping the Garda in their inquiries. That point was also made by Deputy McGahon. Given the provisions in the legislation relating to the period of time for which people can be detained for questioning, one would expect that the Minister would make some provision for legal aid who find themselves in that situation. The Ó Briain Report, in making that recommendation, recognised the difficulties accompanying long periods of detention. Perhaps the Minister would let us have the benefit of his thinking in relation to it and give us reasons as to why it cannot be done.

I was impressed with the regulations announced by the Minister, particularly those in relation to the member-in-charge being the person who, in the final analysis, would be responsible for everything that happens in that station from the moment a person is taken into custody until he is eventually released. That is a worthwhile safeguard which the public will be quite happy with. The custody record is also a valuable document. Perhaps the Minister would tells us who will be responsible for the full inventory of [254] records in the custody record. Will there be anybody who can confirm or deny that everything which took place in the station during the period has been fully documented and recorded? I may have missed some point in relation to it but perhaps the Minister will clarify it.

The entitlement to consult with a solicitor or one other person, as recommended in the Ó Briain report, also provides a degree of protection for the person in custody. I am particularly impressed by the Minister's recognition of the need to provide special protection for people under the age of 17 because it is tragic that these young people should ever have to be taken into custody. But since it is in the nature of our society that that will happen, it is extremely important to protect the interests of these young people in such a vulnerable position. The Minister also referred to the fact that special reference would be made in the custody record to how these young people would be treated when in Garda custody.

The human aspect of the Minister's wish, and indeed the wish of this House, in relation to the connection between the young offender of 17 years and his parents has been recognised in the regulations. I am pleased that the Minister made provision for the parents to be immediately consulted and, if that was not possible, that some other responsible person, not a garda, would be assigned the task of looking after the interests of that young offender in the short term which he was in the Garda station.

I could not envisage a situation where any member of the Garda Síochána would in any way illtreat or be unfair to a young offender coming into a Garda station who was under the age of 17 years. I am quite happy that 99 per cent of gardaí would treat these young offenders with the kind of respect that the Minister and Members of this House would be anxious to see. Nonetheless, in formulating legislation it is important that we build into it the safeguards which are needed for the protection of these young offenders.

The regulations also make provision [255] for a reasonable period of time to enable the person in custody to get the advice of his solicitor. While the Minister did not make provision for the time span that we would have hoped for, I presume that he will indicate to us that he is satisfied with the amount of time which has been provided as being sufficient to enable somebody in custody to get the legal advice and protection which would be required in such a situation.

On balance the public feel that the Garda should be given the maximum amount of legislative support in relation to the difficult task which they perform. We in this House have the difficult task, as has the Minister, of trying to strike some reasonable balance. We want to see the Garda with all the power that they need to deal with the vandals and criminals who are undermining our society. I am happy that in our endeavours to give that kind of strength and additional power to the Garda this House is also sensitive to the position of the person who is arrested and has to be detained for questioning. I thank and compliment the Minister for bringing in these regulations.

Mr. Skelly: The last time that I spoke in this House I also had the good fortune to follow Deputy Hyland. On that occasion it was late in the evening when he started his contribution and it was the following morning when he finished it. It was interesting to see the running battle which took place then between himself and the Chair because he was wandering all over the country in his contribution. He was speaking on anything but the Bill, but finished up by complaining very strongly that the debate was curtailed and limited, that it was a disgrace that this House was not given more time for it. He had taken most of an hour and a half during a very limited debate on not talking about what was before the House.

He mentioned on the present occasion that he was interested in balance, whereas on the last occasion he never mentioned that word. It would seem that his constituency is made up entirely of [256] members of the Garda Síochána who are all being harrassed. As I said on the previous occasion and repeat now, perhaps things are a little different in his part of the country from the position in the city. We have all been striving for balance, even since the Criminal Justice Bill was first introduced into the House.

It is amazing to hear Deputy Hyland still accuse the Government side of keeping the House waiting for three years for this measure to come through. It was not the fault of the Department of Justice, certainly, that the criminal law was not revised over the last decade or so. As I understand it, most of the work had been done in the Department but it was awaiting a Minister courageous enough to pick up the pieces, put them together and put that law into effect. Whatever we might say about the different aspects of the legislation and the supporting legislation, part of which is provided here, we would certainly have to say that it was this Government which had made this attempt. Some of us think that part of the legislation was a little rushed, but that has been a little made up for by this part being produced in the form of a White Paper which gives an opportunity to members of the public and members of the House to make suggestions to the Minister in relation to the regulations. I should be very interested to hear what suggestions and how many he has received from outside the House.

I quaked when Deputy Woods, standing up to make his contribution, said that he would make a constructive contribution from his side of the House. I thought of the destructive element in his constructive contribution made last week in connection with another Bill and hoped that he would not follow the same lines. In his defence, in relation to the Criminal Justice Act and all the debates concerning criminal law which have taken place in the last couple of years, he has been very constructive. By his detailed research he has made an enormous contribution to the legislation which has gone through the House. As usual, he has not now left a great deal to be said and I am not going to repeat many things which he [257] has covered. The Minister showed that he had cast his eye over the previous debates and suggestions that had been made in relation to the regulations, and also complaints in that regard.

It was back on 7 November 1984 that the Dáil placed a legal restraint on the Minister for Justice, preventing him from bringing into force certain controversial sections of the Criminal Justice Bill until after the Oireachtas had approved a system for investigating complaints against the Garda, as well as regulations for the treatment of people in custody. An order that was made then preventing the Minister from bringing into operations sections 4 to 6, inclusive, 8 to 10, inclusive, 15 and 16, 18 and 19 until the complaints procedure and regulations had been agreed by the Dáil and Seanad was an important concession in the whole package. The former Minister used to repeat often enough that it was a package and many thought that we would not see all the elements of that package coming together. This is the final element and I am glad that it has come together.

Deputy Woods has given the historical aspect of how this came about and there is no need to repeat that. Nevertheless, I should like to get on to the record some of the reasons and atmosphere prevailing at the time as to why we needed these regulations at all. I shall illustrate this by an example or two. In relation to the balance sought then, there was a very hotly contested argument at that time and some of us have been more damaged than others by taking up certain stances. Deputy Woods can get away with talking about the aspects on both sides, alleged abuses on the Garda Síochána side and also on the citizens' die, whereas I have been very unfortunate. I have not been able to raise the subject of alleged Garda abuse, but all the time I sought a balance. All the institutions in the State should be strong enough to suffer examination, even in the form of a constructive criticism. It is becoming clear now, after a few years of debate on this subject, that we are coming to the end of the objective of formulating a package of measures [258] which would suit both the citizen and the Garda Síochána.

We are moving into the domain of the Garda force itself with the objective of up-dating it and bringing it into the eighties which will be for the ultimate benefit of all the members of that force, to all the citizens and to the nation as a whole. That was the objective of those people who contributed, and it certainly was my objective. I am a little aggrieved at the kind of pressures which I have been put under because I have dared to ask questions. People seem to forget that the purpose of Members of the Dáil is to ask questions on behalf of the citizen.

I quote from New Hibernia of December 1984 an article written by barrister, Adrian Hardiman:

It seems that those loudly concerned about crime feel it disloyal, or dangerous, to contemplate the possibility that garda powers have been, or may be, abused while civil libertarians view every garda power, actual or proposed, as nothing but a further opportunity for abuse. Yet the two problems may be opposite sides of the same coin to an extent so far little suspected.

A garda magazine has described reaction in the force to recently highlighted apparent abuses as “shameful and embarrassment”. The consequences for morale have been disastrous. The Shercock case plainly shows not only that gross abuses can occur but that investigators of abuses are likely to be met, within the force, by a wall of silence, or worse, which makes it almost impossible to discover what happened and to prosecute those responsible to conviction.

When a citizen dies of injuries received in garda custody it is a public scandal if the man or men responsible cannot be found. In the context of the Criminal Justice Bill, it is plain that the gardaí have sought and got powers of detention and interrogation, in relation to ordinary citizens, which they are unwilling or unable to duplicate in relation to their own members.

A power to hold a citizen in a garda [259] station away from all outside scrutiny, can only be justified if the detained person's safety and welfare is guaranteed. It is often said that abuses are the work of “a few — a very few — bad apples”. I believe this is true. But bad apples may rot a barrel, and this process is evident in the way in which gardaí who would not themselves assault a suspect will not, or cannot, denounce or detect those who do. A crime committed in the name of the law is worse than any other because it undermines the law itself.

Abuses of this kind have been a source of concern for at least eight years. Knowledge of them was not confined to gardaí. Other organs of the State must share responsibility, notably the prosecutional machinery and elements of the judiciary. By too readily excusing minor errors and departures from proper practice, and extending too generous a measure of credulity to garda evidence, they have created a climate in which small numbers of gardaí felt they could “get away with it”.

Equally the legal system itself has not helped: by leaving garda powers and responsibilities in relation to arrest and detention vague, and by leaving uncertain as to what would be accepted by the courts in any particular case, even the most conscientious garda must often be perplexed as to his precise rights and obligations.

That was the objective of everybody who contributed to the debate on the Bill. That is what we are hoping to achieve. I might mention to Deputy Hyland and Deputy Woods that, although the Ó Briain report has been around for the last ten years or more, it was not taken up by successive Ministers for Justice in the same way that the criminal law was not taken on board. When in Opposition those same Ministers complained vigorously that the Government were not doing anything about it. For term after term the sitting Minister promised that it would be brought forward soon. The [260] former Minister grasped the nettle. I hope Deputy Woods's words in his earlier contribution will not ring true. He said we were going to let loose sections in the Criminal Justice Act which had been reserved until the complaints Bill and this measure were in place and that that is not what will happen. It will take more than just the balance that we have written down in law to prevent it from happening. It will take a concerted effort on behalf of the Garda also. They should recognise that this has been to everybody's benefit. Maybe it is the first time — and it is too long — that we ever discussed in depth these sort of measures. The objective is to take the pressure off them and to take the suspicion of abuse of the private citizen and to put the pressure on the criminal.

I am glad to see that the Minister has taken on board much of the Ó Briain report and even added to it in that all persons in custody come under the regulations. Young persons will also be catered for. I would like to know, after they have been put before the Dáil and the Seanad, if the Minister has power to make alterations in the regulations. Does he have to come back into the House to do that?

I am a little disappointed with the two points which the Minister mentioned in his speech, the named solicitor and the question of reasonable time. We had much argument during the course of the Bill that a reasonable time should be allowed for a named solicitor to be brought to the station. That is being rejected for the same reasons the former Minister gave, that it might be impractical in case property was being destroyed or some person was being injured. We know there are certain phrases which leave a lot of room for non-action such as “reasonable times”, “making a reasonable attempt” and “provided there are not too many people in custody and the member in charge is able to deal with it”.

Many examples were given. It is easy to think of examples such as, that the member in charge is busy, or he made a phone call and the number was engaged, or he could not get through. If a person [261] does not want to have a solicitor present, or to have the other person named in the regulations notified, it is very easy to avoid doing that. It is a pity that we have not tightened up the regulations to give that extra bit of reassurance to somebody in the terrifying, isolated position of being in custody.

In the course of his contribution Deputy Woods referred to a very important point relating to people detained under section 3 but who will not be under arrest. It appears that those people are not covered by the regulations, and that is a bad feature. If the type of crime a person is suspected of attracts a sentence of five years in prison, that person can be detained for questioning. Let us take the example of a person driving in a borrowed car accompanied by his wife and friend who is stopped by a garda. If that person gets involved in an altercation with the garda and is not able to give the number of the car he is driving, that person may be taken in because the offence of stealing a car attracts a long sentence. If the garda does not like the look of that person he can take him in just for pig-iron, as happened in the past, and keep him in custody.

I accept that we need the goodwill of the Garda to ensure that that does not happen. As other Members have said, the public relations in the Garda leaves a lot to be desired. The difficulties can only be overcome by members operating with extra goodwill towards citizens. They should treat citizens courteously at all times and not give vent to their temper, pig-headedness or spite. They should not take advantage of the considerable powers they have under the Criminal Justice Act and the regulations that will be introduced when the Bill dealing with complaints is passed. A citizen puts his freedom and his trust in gardaí. Most citizens who go to Garda stations to help with inquiries do not know their rights. I accept that according to the regulations they must be informed of their rights; but, apart from being terrified, most people are anxious to co-operate with gardaí. It is wrong that there is the possibility that innocent people would be [262] taken advantage of. The worst type of abuse is the abuse of innocent people.

I accept what has been said about electronic recording: that field tests are taking place and that it is the Minister's intention to introduce that system as soon as possible. I am sure the Minister is aware that the Garda Representative Association want videos used to record interrogations and their reasons for that were outlined in an article in The Irish Times on 17 April 1985. The general secretary of that association, Mr. Jack Marrinan, addressing the annual conference, said the Minister had two reasons in mind when he contemplated the introduction of a system of recording by mechanical means the interrogation of suspects. One was to protect gardaí against false accusations of going outside the limits of their authority when seeking and securing statements of admission. According to him the obvious second reason was to ensure that gardaí did not exceed their authority when interrogating suspects. He said that gardaí had begun to depend more and more on statements of admission, statements that were properly and scrupulously taken in accordance with the Judges' Rules. He said that as statements of admission came to be relied on more and more by the prosecution they also came under attack by the defence. The most effective way to contest the admissibility of a statement of admission was to allege impropriety on the part of the garda who took it, he said.

Mr. Marrinan referred to the defence tactic to allege that inducements or threats were used to secure a statement of admission and said:

While the interrogation of suspects had always been a very important aspect of crime investigation, it would become an even greater factor as soon as the provision of section 3 of the Criminal Justice Act, 1984, giving them the right to detain for questioning, came into effect.

The full video and sound recording of questioning would be a protection against this.

Mr. Marrinan regretted the fact that [263] those systems were not in operation at the time of the Shercock case because it would have satisfied the public and saved the force from a lot of embarrassment. It is desirable to have them because a solicitor cannot be present during the interrogation. Many people say sound recording would not be sufficient. A suspect should also have access to the time. I do not agree that a person should be disorientated in a bare room and left not knowing whether it is night or day outside or whether he has been in custody for one hour, five hours or ten hours. The tendency is not towards inhuman treatment — they are other words for torture — but towards humane treatment. I am not suggesting that hardened criminals should be given an easy ride or allowed get away with anything.

What we are talking about here is the detection of crime, the public interest, possible ill-treatment and accusations against gardaí. In that respect it is heartening that a member in charge will be responsible for a person in custody. It cannot be said that we are now trying to hide anything. It remains to be seen if what is proposed will be a perfect answer. I accept it will be difficult to get perfection but at least we have a basis on which to improve in the future. I hope we will not be afraid to carry out those improvements. I will always appeal to the Garda not to feel paranoia because Members of the House or the public dare to criticise or point out certain matters to them. Gardaí should be on the side of the citizen and citizens should be on the side of the Garda. Gardaí often put themselves on the side of the establishment creating a “them” and “us” situation. If they looked critically at their own position they might find that they are being used by the establishment.

I accept that there are all types of complicated and psychological reasons that can go into the make-up of a member of a police force and that such a person can be conditioned over a number of years into thinking in a certain way. However, we have a force that is big enough for a country of our size and a promotion [264] procedure that can take care of all that. We also have a wide variety of work and specialisation within the force which can cater for all those things. Should the concentration not be on management? Although we will not see the effect of the new recruitment methods for some years to come, it is my belief that they will help.

What is proposed is an advance in that we have incorporated the Judges's Rules. The powers of the Garda have been strengthened immeasurably by the Criminal Justice Act. It is, therefore, absolutely essential to have protection of persons in custody and the gardaí. This will become evident over the coming years. It is absolutely critical that we have a monitoring situation and it will no longer be necessary for either the gardaí or the public, if we have a proper complaints Bill in situ also, to be suspicious, or have anything to hide, or be worried in case they will get a raw deal. If we have everything up front and are trying to achieve justice, we could take on board the odd indiscretion of a garda. We realise everybody is human and mistakes are made on both sides. Gardaí have been abused, individually and collectively. They have also suffered assaults as have members of the public.

Throughout these debates and discussions we are talking about the innocent citizen. The innocent citizen in that respect is both the garda and the person who has not committed a crime. We are not talking about the criminal, but we are saying that a person is innocent until proven guilty and must be given every facility.

An Ceann Comhairle: Deputy Skelly may not be aware that this debate must conclude at 11 p.m. and the Chair understands that the Minister would like, if possible, to get in some time.

Mr. Skelly: I intend to finish within the next five minutes so that the Minister has 15 minutes to finish up. I will conclude by making some quick remarks about the regulations which are coming in. They give effect to many measures which will follow on. The Garda should not be so [265] sensitive to examination. They have come around to accepting that. They are also calling out for an examination.

I would like to refer to the adversarial and inquisitorial system. Mr. Marrinan said in relation to interrogation that many of the problems that have been encountered by the force and in accusations have been caused by the system we operate. The different secretariats in the Garda, both the AGSI and the Garda Síochána Representative Body, are calling for an examination of the system and whether we should have an adversarial system or an inquisitorial system. Some of the tragedies which have been mentioned — and no one wants to open old sores — could have been avoided had we an inquisitorial system whereby when the evidence was collected it went to a magistrate who decided whether there was a case to answer or not. The system that is in place gives rise often to the faults which occur. They can be avoided if we are brave enough to examine that. All big organisations and institutions in the State should be subject to constant recurring examination.

Deputy Woods covered quite a few of the things I was interested in. He spoke frequently about the balance. I have mentioned that seldom has there been a call for a balance; usually we get people on one side or the other. It is important that these regulations have been written down and are clear and unambiguous. Garda public relations could do much for themselves. They will have a big responsibility when these things are put into place. No one is trying to put them at a disadvantage. As Deputy Hyland pointed out, if there is a disadvantage for the gardaí we would be very anxious to put that right. I would like to know from the Minister why persons helping the gardaí with their inquiries cannot be catered for in these regulations. They should have protection especially if we want people to come forward with information.

I hope Deputy Woods' forecast does not work out to be true when, as he said, the powers of the Criminal Justice Act are let loose. I hope that will not be the [266] case. We have to wait and see what will be the result of these regulations when they are put into place. The citizen can feel reassured that at least we are trying to protect him up front and in writing. I would also like to see a reasonable interval between the periods of questioning. We find from research in Britain that the amount of time a person spends under questioning is very small, maybe an hour or an hour and a half at the most. In Scotland, it is an average of about ten minutes.

I hope the situation will be monitored. The responsible Minister, in the short time since he has taken over this portfolio, is not allowing the grass to grow under his feet. The Minister has some major legislation which he is working on. I hope he will succeed in the coming year in revamping and reviewing the system and that this will be the most major review of criminal law and other legislation to come from the Department of Justice in a long time. I wish the measure well and hope we can look back after a year and say it has all been worthwhile, that it is operating fairly and both the Garda and the citizens are happy with it.

Minister for Justice (Mr. Dukes): I want to thank the Deputies who have contributed to this discussion this evening. I was very anxious, as I said at the beginning and some weeks ago, to find a means under which we could have a discussion on the substance of the draft regulations in the House before the draft regulations come before the House. The debate we have had this evening has been very useful in that connection.

I gather from the contributions which have been made that, on the whole, the House welcomes these draft regulations and supports generally the objectives we are setting out to achieve and the method by which we set out to achieve those objectives. Of course, we are not in the business of second guessing the Criminal Justice Act. A number of things which have happened since the passage of the Act, the publication of these proposals and the publication of the Garda Síochána (Complaints) Bill have served to put [267] the Act in a slightly different context from that in which some of us saw it during the course of its gestation and passage through the House as a Bill.

These regulations provide for the treatment of persons in custody in Garda stations. That is made very clear in section 7 of the Criminal Justice Act. They do not apply, and cannot apply, to persons who are not in custody in Garda stations. However, it is my intention to ask the Garda Commissioner — I am sure he will agree readily with it, as will the rest of the force — to apply the same principles when dealing with persons who are not in custody. I take the point made by all Deputies who were concerned that it will be made very clear to people whether they are in custody or not. Indeed, that is a point the Garda themselves will take into account fully. Section 7 (1) of the Act provides:

The Minister shall make regulations providing for the treatment of persons in custody in Garda stations.

We do not extend these provisions any further than that, nor am I proposing that we should stop the practice of inviting people to Garda stations to make statements, for a number of reasons.

It is not difficult to think of situations in which initially there might be enough suspicion to justify an arrest but where further questioning would show that there were not sufficient grounds on which to arrest. That is a situation we should bear in mind, and I do not think Members of the House would wish to see people being needlessly arrested. In the heat of argument, people can also overlook the point that there may frequently be circumstances when people would prefer to go to a Garda station to help the Garda with their inquiries, to use the time worn phrase. A very simple example will bear this out. A garda might wish to talk to a person in connection with a problem. The person might understand that that was the case and he would prefer to go to a Garda station rather than to have the garda go to his place of work.

Deputy Woods referred to three [268] specific cases and Deputy McGahon spoke of another. I do not intend to discuss any specific cases — that is not our function here — but I will say that some of the concern expressed by Deputies will be covered by the provisions in the Garda Complaints Bill. Some of the concern expressed here this evening — I understand the reasons for this concern — can more properly be discussed when that Bill comes before the House. Our concern tonight is to ensure that the conditions in which people in custody will be treated will be in all respects those the House would wish to see. That is why we have gone to the trouble of providing in the Act that the regulations would be made, and we are now discussing them in draft.

Electronic recording of interviews were referred to. Under the provisions of the Act it is not possible now to carry out these pilot studies. That cannot begin until the detention provisions of the Act are in force and this cannot be until we have these treatment regulations and the Garda Complaints Bill. I wish to reassure Deputy Woods that it is not a matter of spinning out or delaying these pilot studies. The committee are making the necessary preparations so that when the detention provisions come into force we will be ready to get working on this matter. If he has any further doubts I would redirect his attention to our debate on section 27 of the Act where he will find the basis for what I am saying.

One or two Deputies referred to disorientation in Garda stations, particularly disorientation that can be caused when people do not know what time it is. I am tempted to remark, and I apologise to the House for it, that I am slightly disoriented myself because the clocks in the House do not accord by the one I go by, the 8 a.m. time signal on RTE.

An Ceann Comhairle: That is only one clock.

Mr. Dukes: There is no reason why we should make a particular provision in relation to persons in custody keeping their watches, nor is there a reason why [269] we should try to make specific provision in these regulations that would deal with all possible cases. That is a matter it would be proper to leave for the circumstances in which people in custody are being questioned. I would go further and say that it would not be possible for the regulations to contain detailed provisions of general application because that probably would be ultra vires in the sense that it would restrict existing statutory powers of search.

“Reasonable interval” between periods of questioning has been looked at by me very closely. It has been suggested that we should provide for a specific interval. I do not think that is required, given the overall provision we are making about questioning itself, the manner in which it is to be undertaken and the time that may be spent in questioning. I would prefer to leave a degree of flexibility rather than to tie things down in a way that might not turn out to be of any advantage to persons in custody.

Deputies have reminded me of research being carried out elsewhere. Such research would point in the direction of flexibility in the way we have allowed it in the draft regulations. On that point, I should like to reply to a specific question by Deputy Skelly. He wanted to know if the Minister has power to alter these regulations. Yes, but it is a power granted by the Act in section 7 (5), which provides that a draft of every regulation proposed to be made under this section shall be laid before each House of the Oireachtas. Inevitably, that means that any amendment of these regulations would have to come before the Oireachtas.

Video recording was also referred to. I do not rule out video recording though I am not convinced now that it is necessary. I cannot follow the suggestion of Deputy Woods that, while people might be a little reticent about tape recordings of an interview because of possible identification, they might be less reticent about video recordings. I cannot follow the logic of that, and I do not think it arises in the way Deputy Woods thought. The only people who would have access [270] to such recordings would be the Garda or the person who has been interviewed, and there is provision in the regulations for the person in custody and his legal representative to have access to such material for a certain time.

Mr. McGahon: What about the presence of a solicitor during the questioning?

Mr. Dukes: I dealt with that in my opening remarks. I said that the solicitor's subsequent presence as an observer during the interview must only — in the context of the report — be intended to provide a guarantee against oppressive questioning or false allegations against gardaí conducting the interview. I went on to say that this objective is adequately secured by the safeguards proposed to be provided in the regulations, particularly the reasponsibility placed on the member in charge. I said that the only definitive and objective answer to providing such a guarantee is the introduction of electronic recording of the questioning of a suspect.

Mr. McGahon: The Minister is ignoring the recommendations in the Ó Briain report.

Mr. Dukes: The Deputy did not hear my opening remarks in which I specifically pointed to the fact that in that regard I do not go along with the Ó Briain report for reasons which I set out. The suggestion of Deputy McGahon is not one that would either be necessary or desirable in the conduct of interviews. The word “interrogation” is the word I prefer not to use — it has other connotations.

There are some other points, but I will confine myself to the point made on accommodation. The House will remember — I know Deputy Hyland does because I have spoken here on a number of occasions about improvements we are making in Garda facilities. In these regulations we will designate a number of Garda stations in which interviewing of this kind would take place. We have a priority programme for the provision of facilities in Garda stations and those [271] improvements in facilities would ensure proper interviewing rooms. Deputy Hyland will have been in one of these ancillary facilities in the new divisional Garda headquarters in Galway. It is part of my concern to make sure that [272] improved facilities will be of an adequate standard.

Question put and agreed to.

The Dáil adjourned at 11 p.m. until 10.30 a.m. on Wednesday, 28 May 1986.