Seanad Éireann - Volume 105 - 13 September, 1984

Criminal Justice Bill, 1983: Second Stage (Resumed).

Question again proposed: “That the Bill be now read a Second Time.”

Professor Hillery: This Bill is being debated against a background of an unprecedented level of crime. The number of indictable offences for the year 1983 was over 102,000, a figure which will show a further increase for 1984. The Bill, which is a review of criminal procedure, is both necessary and timely but to make it workable and effective specific action under a number of headings is required by the Minister for Justice and the Government.

Section 7 makes provision for the making of regulations by the Minister for Justice for the treatment of persons in custody in Garda stations. Detention is one of the more contentious aspects of the Bill. The minimal safeguards which will be provided by these regulations should have been in the Bill or, as a second best, should be published at this time so that they could be discussed in conjunction with the Bill. I should like to ask the Minister why the regulations have [116] not been published. Two months have now elapsed since the Bill was last discussed in this House. The Minister has also given an undertaking that the Bill will not be put into operation until the proposed complaints procedure is established. How soon will the complaints procedure be established so that this Bill can be implemented? The Minister in his Second Stage speech referred to the fact that he hoped to have the complaints procedure available this autumn. We are now in autumn and since the Bill cannot be operated without the complaints procedure I would like the Minister when replying to specify exactly when we can expect to see the complaints procedure.

It is very difficult to evaluate fully the Bill when we do not know how independent the complaints procedure will be or how effective it will be in dealing with complaints. There is a compelling case to have the complaints procedure now and to discuss it in conjunction with the Bill. The urgency of the crime problem and the needs of detainees and the needs of the community demand that both the making of the regulations or safeguards and the establishment of the complaints procedure be finalised immediately by the Minister.

This Bill gives certain powers to the Garda but we need enough gardaí to ensure that the crime problem can be realistically handled. Garda/community relations leave a lot to be desired. This is due to some extent to the erosion of contact that in the past existed between gardaí and the community. This erosion is partly due to the mechanisation of the Garda force through cars and motor-cycles. I want to level a specific criticism against the Government in relation to the number of gardaí in the country. During the election campaign of the last general election in November 1982 the present Government promised to increase the Garda force to a strength of 12,000 which was the same commitment already made by the Fianna Fáil Government of the time. In effect, this Government cut back on the number of gardaí, leaving the force 600 short of the promised, necessary and firmly committed target of 12,000. Furthermore, Garda overtime has also been [117] cut back. If this Bill is to improve matters — and surely it is the purpose of the Bill to make matters better than they now are — it is essential that more gardaí be put back on the beat especially in city areas. This is an essential step in tackling crime which is what the Bill is about. Furthermore, more gardaí on the beat would mean that they would be known in local communities which was so common a feature in city areas in the past, the inner city in Dublin included. This would, in turn, lead to a greater acceptability of gardaí by the community and lead to a much greater level of co-operation between gardaí and citizens.

This Bill, when implemented, will lead to an increase in the number of people in jail. Inevitably this raises the question of prison accommodation. The prison system is in crisis and responsibility for the solution to this crisis rests squarely on the shoulders of the Minister for Justice and his Government. Because of prison overcrowding, more than 1,300 prisoners were released before their time last year and half this number were released from Mountjoy prematurely. Capital expenditure on prisons was actually reduced by this Government, notwithstanding the crisis in the prison service, by a figure of £6 million in 1983. The delay in the completion of the prison in Clondalkin is inexcusable.

I should like to refer to the lack of consistency in sentencing policy among the Judiciary. The Garda have the responsibility of maintaining law and order in our society. When they succeed in bringing criminals to justice, both they and the community as a whole are entitled to expect from the Judiciary penalties to fit the crime. When such penalties to fit the crime are not imposed this leads to frustration and is a demoralising experience for the Garda. In some cases sentences are minimal and derisory while in other cases they seem to be unduly harsh. What is missing is consistency in sentencing policy. I acknowledge the independence of the Judiciary but I strongly urge that judges should meet regularly to review sentencing policy and practice. We have now reached the stage where such meetings and review sessions [118] among judges are essential so that confidence in the Judiciary can be maintained.

I do not propose to speak for very long on Second Stage but I want to make some general comments on certain sections of the Bill and to reserve most of my detailed observations and comments for Committee Stage. The first section I want to refer to in broad terms is section 5, which deals with the right of the detainee to have access to a solicitor. We are aware that the Minister for Justice has refused to extend the provisions of the legal aid scheme to cover legal visits to Garda stations. Without legal aid for detainees I believe that the protection afforded by section 5 of the Bill will be undermined. I put it to the Minister that the effect of this would be that experienced criminals who know their way around, who are well aware of their legal entitlements and who have knowledge of the legal system would be able to retain their regular solicitors and have access to them and pay them. On the other hand, persons with little or no criminal experience and less detailed knowledge of criminal procedure would effectively be denied access to a solicitor. The Oireachtas has a duty to prevent the possibility of an innocent person, particularly an inarticulate, frightened, poor person, being convicted. It may be just such a person who will not know of any solicitor to telephone and will not have the money to pay the solicitor's fee for calling to the Garda station. Even where persons with no criminal record or experience have a family solicitor and also can afford to pay such a solicitor they may well find, if such a family solicitor were contacted, that he might have little or no knowledge of criminal law. Family solicitors invariably tend to be experts on conveyancing and similar matters rather than in criminal law. Criminal law tends to be a highly specialised area of law practised by relatively few solicitors and relatively few barristers.

In order to ensure that this section on access to a solicitor will have the desired effect I have a few recommendations to put to the Minister. First, the legal aid scheme should be applied to persons detained after arrest. Secondly, a list of suitable and willing solicitors ready to [119] provide advice to such persons should be compiled and the obligation to provide such a list to detainees should be placed on the Garda.

I now wish to refer to section 6 which deals with the powers of the Garda in relation to detained persons, a highly sensitive area. Objections have been made regarding the power given to the Garda to search such a person, photograph him, take his fingerprints, carry out tests to ascertain whether the accused person has been in contact with firearms and to carry out certain other tests and to take samples. One suggestion made by the opponents of the Bill is that these powers are of a totalitarian nature. However, I feel that the Garda should be at liberty to confirm or deny their suspicions. The powers contained in section 6 are clearly necessary to allow the Garda to avail of forensic tests in particular. If a person is genuinely innocent the searching and photographing of him and the taking of his fingerprints and other tests and samples would merely go to confirm his innocence. However, I have an important qualification to those comments. Of course a properly conducted and orderly inquiry by the Garda of persons in custody is of the first importance. This underlines once more the need for the House to consider the regulations or minimum safeguards proposed in section 7 of the Bill right now, but they have not yet been produced by the Minister.

I want to query the provisions of section 12 which will allow the District Court to impose sentences of up to two years as opposed to the maximum of 12 months which at present prevails. While this provision may well relieve the backlog of cases in the Circuit Court, it raises the question as to whether this is an adequate basis for the change. There are severe time constraints on cases heard before the District Court also. As I understand it, the District Courts hear a great number of cases in a rather speedy fashion on a given day. If there are delays in the administration of justice in the Circuit Court these delays should be tackled by methods other than increasing the District Court powers. In other words, I [120] submit that sentences in the District Court should continue to be restricted to 12 months.

Sections 15 and 16 are concerned with the witholding of information regarding firearms or ammunition and the withholding of information regarding stolen property and so on. There has been a very disturbing increase in the illegal use of firearms in recent years. Furthermore, in the case of stolen property this is something known to many thousands of citizens or, let me say, victims who have been robbed. Objections have been taken in certain quarters to sections 15 and 16 of the Bill on the basis that these sections would offer inducements and suggest immunity from prosecution for informing. In other words there would be a quid pro quo for divulging information. This is then equated by the opponents of the Bill with the supergrass phenomenon in Northern Ireland. Surely this is a gross exaggeration. The penalty for withholding information regarding firearms or ammunition carries a maximum prison sentence of 12 months, a penalty which would not activate a supergrass phenomenon as in Northern Ireland. As regards section 16, and the withholding of information on stolen property, one of the main reasons for the appalling rate of break-ins in our cities in particular is the fact that there is a market available for stolen property. It seems to me that the Garda should have the right, where at all possible, to establish whether a person has stolen property in his possession or not. One of the main merits of the right to silence is that it prevents a person from incriminating himself. There is a safeguard in section 16 (4) in that it removes the danger of self-incrimination and allows the Garda to obtain the necessary and relevant information in regard to stolen property.

Finally, I want to refer to the nettle that has not been grasped in this Bill, namely the age of criminal responsibility. The Bill contains an extensive reconsideration of criminal procedure, though a number of actions must be taken by the Government to make it effective, as I have already outlined. It is a matter of much regret that the opportunity was not [121] taken in this Bill to grasp the nettle of the age of criminal responsibility. The preparation of the Bill provided the opportunity to establish one age at which criminal responsibility would commence and the opportunity to consider other allied topics such as parents' or guardians' responsibility for children below the age of criminal responsibility committing what would otherwise be criminal offences. With these general comments I will conclude and reserve detailed points which I wish to raise on Committee Stage.

Mr. Durcan: This Bill represents the first serious attempt by Government to reform the corpus of our criminal law in recent years and the procedures for prosecuting and dealing with criminal matters in our courts. The Bill has been gestating for a long time in the Department of Justice. Some of the provisions contained in this Bill were contained in the Criminal Justice Bill, 1967. That Bill was debated in the Dáil and in the country and it fell with the dissolution of the Dáil in the summer of 1969. The Bill has been lying in the Department of Justice since that time. The Minister for Justice must be congratulated and complimented for getting the measure to Government and before the Houses of the Oireachtas. Ministers have come and gone and this Minister, in a very short period of office having to deal with many unexpected and serious problems, has nevertheless been able to get a complex, detailed and reforming measure of this nature before the Oireachtas pretty speedily. The Minister must also be congratulated for his open approach in presenting the Bill to the Oireachtas. In the Dáil in dealing with this Bill there was real debate; there was active contribution which was listened to and carefully considered by all sides of the House. The Minister when presenting the measure, in indicating that his view was not a closed view and that the measure was open to amendment had the correct approach.

The fact that we now have a radically different Bill from that which was presented initially on Second Stage in the Dáil is an indication of this openness, is [122] an indication of the real debate which took place in the Dáil. It is an indication of the real and open debate which took place in the country. I hope we in this House will have the same opportunity Members of the other House had, particularly on Committee Stage, to deal with the Bill section by section. I hope that the Minister, in coming to this House, does not regard the measure as a legislative fait accompli, that he will listen to the suggestions which we have to make on Committee Stage and that, if any amendments coming from any side of the House warrant constructive acceptance, he will feel constrained to accept such amendments.

Other speakers have said that this Bill is by and large a Committee measure in so far as we can consider it, but it nevertheless gives us the opportunity to consider the operation of the criminal law in the country at the moment. It gives us that opportunity at a time when there is a complete lack of confidence on the part of the people in the operation of the criminal law, when there is increasing disenchantment with and a lack of confidence in the courts, the Garda and the prison system. The fact that all of these elements work together to maintain the rule of law and the fact that there is an increasing lack of confidence in them must give rise to concern.

This Bill has been opposed from the outset by many people and by many groups of people. It has been opposed by various Christian denominational interests, by the Irish Council for Civil Liberties, by the Law Society, by the Bar Council and by various other bodies. Initially they opposed particular aspects of the Bill. I hope that some of the amendments introduced in the Dáil will have the effect of allaying the fears which some of these bodies expressed initially.

The view has been expressed that the basic principles of our criminal law are in some way being undermined, or in some way being attacked. It is important to realise that the criminal law must reflect a balance and, as society develops, and as problems increase in society, that balance can change. It is the duty of Government and the duty of the Minister to ensure [123] that the right balance is struck. I believe that this Bill, in its amended form as it comes before us, just about gets that balance right. I do not think it is fair to say — and this has been said in the campaign against the Criminal Justice Bill and in a letter to The Irish Times of 21 August — that the Bill retains its dangerous powers and sinister character and remains totally unacceptable.

That is a complete distortion of the amended Bill. It is a complete exaggeration and it is a view with which I cannot agree. It is suggested that the Bill in some way infringes the personal liberties of the citizen. I have spoken about balance already. Various legislative proposals which have come before the Houses of the Oireachtas in recent years have infringed individual liberty and have infringed the rights of the citizen. I will mention a few of them. If one considers the measures which I will mention, one will not agree that they were unacceptable measures. I mention them because it is important that we get the balance right, and that we see in 1984 what is acceptable to achieve that correct balance.

If we look at the Planning Act of 1963, which curtailed the right of the individual to develop his property as he wished, we could argue that that Bill offended the personal rights of the citizen. I do not think anybody would agree that it was anything but a necessary measure. A balance had to be struck in favour of community development as against the individual's right to do what he liked with his property. If we mention the Succession Act of 1965 which curtailed the freedom of a testator to dispose of his property as he or she wished. I do not think anybody would suggest that that was a measure which affected individual liberty. It was a measure which got the balance right and achieved the balance between individual freedom on the one hand and the right of other individuals on the other hand. This Bill has to be seen in the very same light.

Previous speakers have referred to the fact that one cannot consider this Bill in any detailed way and one cannot consider [124] the operation of its provisions, particularly those provisions which relate to detention, unless one considers how the Garda Síochána, who will have responsibility for enforcing this Bill, operate. They are the people who implement the provisions and my concern is not so much about the provisions which the Bill contains but about the manner in which they can be implemented. I quote from the editorial in the Gazette of the Incorporated Law Society of November 1983, volume 77, No. 9:

One of the most worrying aspects of the Criminal Justice Bill is not to be found in its pages. It is the manner in which it is being presented to the public as a solution to the problems of rising crime. It is nothing of the sort. It has been said previously in these pages that there will be no diminution of the level of crime until there is greater public support for the Gardaí, a greater sense of civil responsibility, the lessening of ill-concealed approval for illegal activity and, most important of all, the devotion of greater resources both financial and technical to the Gardaí. In addition, improvements in the training of the Gardaí and in their method of operation are badly needed. Our police force has in the main served the community well but, unfortunately, it does not seem to have adapted itself sufficiently speedily to the changing environment. The failure to provide, except on the security side, increased financial resources is a factor, but not the only one. Training at induction level is inadequate and further training has not been mandatory for promotion to higher levels. Experience is invaluable in the development of a police officer but it must be matched by continuing in-service training of a high order.

The people who will implement this Bill may be experienced gardaí but they may also be very inexperienced people who have emerged from what I would consider inadequate training in Templemore. The provisions of this Bill in relation to detention may be operated on the basis of a consideration made by a 19 [125] year old inexperienced garda who has just completed his training. That is one of the worrying features. What also worries me is the relationship which the Garda have with the people. This Bill in its operation, as between the Garda on the one hand and citizen on the other hand, can be operated best if there is an understanding, a relationship and a communication between the Garda in a particular area and the people whose duty it is to serve them.

Increasingly there is a growing apart between the Garda on the one hand and the citizenry on the other hand. We increasingly read of no-go areas. We increasingly read that the Garda are unacceptable to an ever-increasing number of people. There are reasons for that. Speaking with rural experience, one of the reasons is that people do not know the gardaí any longer. The gardaí do not live with the people. The gardaí do not live in rural areas. In County Mayo we had the appalling situation until recently of the seven senior Garda officers — five of them including the chief superintendent, the man with ultimate responsibility — living outside the county. They lived away from their division. I hope the situation has improved. It should be mandatory on every garda, from officer to ordinary level, to live in the area and get to understand the people they serve.

We can speak of equipment. We can speak of resources for the Garda. The most important equipment any garda has are his feet, his eyes and his ears. Increasingly, I submit, these vital pieces of equipment are not being used. Increasingly there is a growing apart. The gardaí tend to live in isolation from the people they serve. It should be made absolutely mandatory that they live with the people, that they get involved with the people and that they understand the problems existing in their own areas. That is a problem that exists not merely in rural areas but in urban areas.

To give an example of how things have changed, there was a time in rural areas when the gardaí were involved with assessing social welfare applications. There was a time when the gardaí in rural areas actively pursued noxious weed [126] problems. These may seem simple things but they gave the gardaí the experience and the intimate knowledge of their area which they now absolutely lack. It is time for the Garda to get back among the people, to live with the people and to gain knowledge and experience in that way. It is also important that the Garda Síochána should, at all levels, maintain a sense of civility with the people they serve. This is a matter to which the Minister for Justice referred at a passing out parade on 7 June last. In his speech on that occasion he said:

I should like you particularly to cultivate good relations with our young people. The rising generation is probably better educated than any which preceded it and naturally, rightly, they question and criticise and sometimes rebel against the values and principles set up by their elders. Their self-assertiveness and challenging attitudes can bring them into conflict with parents and teachers and sometimes with the gardaí. If the young people come in contact with the gardaí only on occasion of conflict or confrontation, they may easily develop attitudes of hostility towards the Force. It would be a great pity were this pattern to develop. You who are passing out today are not far removed in age and outlook from the young people I am talking about and we now have a very big membership of young gardaí in the Force. I ask you to identify with young people outside, mix with them in a friendly way and associate with them in youth clubs and other social and sporting activities.

Many of our young gardaí are doing this but many are not. We have many gardaí who live in dormitory towns and who drive many miles to their area of operation in the daytime. That is not acceptable. If the level of crime is to be reduced, if we are to combat subversion, if we are to combat social problems in our society, then the gardaí must relate to these problems and they must live on a 24-hour basis with the people they serve.

I should also like to mention in this context another system which is damaging [127] in the very same way. I refer to the rural police scheme. It is operating initially on a pilot basis in the Claremorris area of County Mayo and also in part of County Kilkenny and is being expanded. That scheme may have the effect of saving money. It will also have the effect in the long-term of moving the gardaí from local villages, bringing them to the central station area to reside and simply have them go out to the station areas on a one-hour or two-hour service basis per day. Again this will have the effect of putting them out of touch with the people. They will be out of contact with the problems existing in a particular area and will lack knowledge and a complete understanding of the area. I ask that that scheme be immediately abolished.

In relation to the Garda Síochána and their operation of this Bill, it is not so much a question of increasing the number of gardaí. I disagree with Senator Hillery on that. It is a question of properly deploying the adequate resources which already exist.

I turn now to some of the detailed provisions of the Bill and will refer to them in a general way because this is essentially a Committee Stage Bill. Section 4 of the Bill is the most controversial section: it is the one which gives the Garda the new power to detain. I do not think it is unreasonable in our society that the Garda should have power to detain to investigate a crime. Anybody who says otherwise is speaking unrealistically. It is no harm to know at present the Garda do not have that power. There was an understanding that they had that power, but the present position in law is well set out in the judgment of Mr. Justice Walsh in the case of The People versus Shaw, 1982 Irish Reports, page 1. In that judgment the learned judge said:

Arrest is simply a process of ensuring attendance at court of the person so arrested.

On page 29 of the same report he affirms that:

No person may be arrested with or without warrant for the purpose of [128] interrogation or the securing of evidence from that person.

This, of course, follows the principle laid down in the earlier Irish case of Dunne versus Clinton, 1930 Irish Reports, page 366, the case referred to by the Minister when introducing this Bill. The practice developed of inviting somebody to a Garda station to help the Garda with their inquiries. This process in turn came under increasing scrutiny and it was judicially suggested in the case of the DPP versus Lynch, 1982 Irish Reports, page 64, by Mr. Justice Walsh that a person in a police station who responds to such an invitation should be informed of his right to leave and, of course, that led to the unworkability of this practice.

The Government have decided that the practice which was deemed incorrect by the court is now in effect to be legalised by the Legislature. The question we have to ask ourselves in relation to section 4 is whether to legalise is an unreasonable practice. I share the view that it is not an unreasonable practice to legalise provided there are proper and workable safeguards existing in so far as that practice operates. I am a little worried about certain aspects of section 4. I am a little worried about the three types of gardaí who are mentioned. First, we have the arresting member. Secondly, we have the member in charge of the Garda station who decides whether to detain. I wonder about the basis upon which that decision will be taken by the member in charge of the Garda station. He is not the person who, with reasonable cause, suspects the arrested person of having committed an offence. That person is the arresting member.

I wonder about the basis upon which the member in charge reaches that decision. I should like the Minister to clarify that. It is something which should be looked at in relation to this section. We also have the third type of garda in sub-section (8) of the section. That is a member of the Garda Síochána who can decide, where circumstances exist, that somebody is in need of medical attention. So we have somebody who may be brought to the Garda station and who [129] may be subject to the decision-making by three different categorisations of garda. This seems to me to be unduly complicated and I wonder about the workability of it.

The power to detain in itself does not worry me. The power to detain as specified in the period of detention does not worry me but what does worry me is the actual decision-making process which operates in relation to detention.

Section 5 of the Bill deals with access to a solicitor and notification of detention. It is only proper that a person detained under this Bill should have the right of notification of detention to his solicitor or to another person and the position of young people is also covered. But I am not happy that the situation is one that the notification should be “as soon as practicable.” In effect that would mean that the notification will be made by the person himself because, if “as soon as practicable” is to operate, then the first person with opportunity to notify of detention will be the detained person on his own release. In effect, the practical operation of this section will be that some time after his own notification of detention the notification will come from the Garda to the prescribed people. I am not happy with that. I think there should be a system of immediate notification.

The point is being made that it may be difficult to get solicitors at particular times and that people tend to be arrested at unsociable hours. I might mention as a practising solicitor that I have on occasion been called from my bed at all hours in the morning and I do not regard that as anything unusual. But I can certainly see circumstances when somebody would not be able to get a solicitor at a particular time. The suggestion made by the Law Society and by other bodies of the introduction, certainly in larger centres but I would think on a national basis, of a duty solicitor system should be followed up. I do not think it is a system which would be unduly costly or unreasonable and I think it is only fair and proper that somebody detained under section 4 should have the right to legal advice at the earliest possible moment. I would ask the Minister to [130] consider seriously what I have said there.

Section 6 also has given rise to concern. That is the section which confers the powers to demand name and address, to search, to photograph, to fingerprint and to cause certain tests which are of relevance to the firearms legislation and the drug legislation to be effected. I find nothing objectionable in giving a right to demand a name or address. I find nothing objectionable in giving the right to photograph or fingerprint. I find nothing objectionable to giving the right to carry out tests for the purpose of firearms or drug legislation if it is deemed there are reasonable grounds for such, but I worry about the right to search and I worry about the right to photograph and to fingerprint. These rights may only be exercised upon authority given by a chief superintendent, but such authority is not necessary to search. I worry very much that somebody can be taken by a 19-year-old garda without experience to a Garda station, that he may be detained by a member in charge, who could be still this 19-year-old garda because there are Garda stations where there is only one garda, and that that same member could then decide without an authority or without a request to a chief superintendent to search that person. I think if the searching power is to be contained in the section then that power should be exercised only upon the authority of a chief superintendent. I would urge the Minister to make provision for that in this section.

I also would like to know, and I would like the Minister to specify and I think he should include in this legislation specific provision, as to who will do the searching. The searching should not be carried out by an inexperienced member of the Garda Síochána. There should be specific provision as to the type of member who would carry out the searching.

I want to move on to section 7 which deals with the making of regulations regarding treatment of persons in custody. I share the views expressed by other speakers regarding the making of regulations. These regulations should be made at the earliest possible place.

I also worry about subsection (3) of [131] that section which provides that a failure on the part of any member of the Garda Síochána to observe any provision of the regulations shall not of itself render that person liable to any criminal or civil proceedings or of itself affect the lawfulness of the custody of detained person or the admissability of evidence of any statement made by him. I am very unhappy with that subsection.

As I have said, I have no reservation with the detention provision but I have reservations about the petticoats that go round that provision, and this is one of them. It is absolutely inadequate to my mind. It is appalling that in carrying out these regulations a member does not have to worry too much as to whether he carries them out properly or not. We still do not know the kind of complaints procedure which will exist. It may be still the existing kangaroo court system of two superintendents and a chief superintendent. I have quite a lot of experience of appearing for members of the Garda Síochána in their own internal inquiries. It gives me very little confidence in the operation of those internal inquiries. When we do not know the operation of a complaints procedure then I am extremely worried about the existence of subsection (3) and I would ask the Minister to look again at that subsection.

It is a peculiar thing that when we complain here about situations existing in other jurisdictions not very far from here, we express extreme concern when people are killed or murdered as a result of the improper use of weaponry by members of police forces in other jurisdictions. Yet we do not worry that we ourselves may be giving powers to the Garda without sufficient safeguards to protect the people against whom these powers may be used. I think subsection (3) needs to be very carefully looked at. The regulations will be carried out by the Garda but I think for their own protection it is extremely important that they be made amenable to the law in the same way as anybody else.

I referred to other jurisdictions. We seek independent bodies to examine the use of plastic bullets which recently [132] resulted in the death of somebody in Northern Ireland, and we may not yet have an independent body to examine the incorrect operation of regulations made under this Act and used by the Garda Síochána. If we are to operate a legal system, a criminal code, properly we must see that the proper protection is there to allow it to operate.

To proceed to section 8, which deals with the destruction of records, I worry about this section and I wonder why records are not kept on a permanent basis. Anybody who has any knowledge of how Garda barracks operate knows that records exist there for amazing periods. The Garda can be complimented in many respects for their manner of maintaining records about people, about all types of incidents and records which go back many years. Yet there are certain provisions of this Bill which in their operation are required to be recorded, but there is a specific life span for the existence of those records. There is no specific life span for the institution of criminal proceedings of an indictable nature. I think the period for the retention of records in a Garda barrack is unsatisfactory and I would ask the Minister to look at that.

Sections 11 to 17 deal with offences committed while a person is on bail. The provisions introduced here are satisfactory. They win support across the board. The operation of bail in this jurisdiction is not satisfactory. It is not satisfactory that somebody who is a party to criminal proceedings, alleging the commission of an offence, while on bail should commit another offence. I welcome the provision for the introduction of consecutive sentences and I welcome the provision which allows the District Court in relation to summary matters to impose consecutive sentences for a period of two years. I disagree with the view expressed by Senator Hillery on that point. I think that the District Court is the most important criminal court operating in the country and, while many of the provisions contained in this Bill will not relate to criminal offences which will come before the District Court, sections 11 to 17 will have [133] a certain relevance there and I welcome these provisions.

Sitting suspended at 1 p.m. and resumed at 2 p.m.

Mr. Durcan: I was dealing with the various sections in the Bill when we broke for lunch. I should now like to go on to section 13 which provides for the creation of an offence for failure to surrender to bail. I had always assumed that such was an offence. Perhaps it is an offence in a different way but I welcome the enactment in definite form of such a provision. In construing this provision the whole bail procedure would need to be examined. Our courts have a duty to examine more carefully people who may go as sureties or act as bailsmen — people who enter into bonds for people who are released on bail if a court decides that they are agreeable to make bail available.

Section 14 is also a section which I welcome. It increases penalties for certain firearms offences. It is a section I will be referring to in some detail on Committee Stage and I will be suggesting that some of the penalties created in these subsections be increased. Sections 15 and 16 deal with the withholding of information in relation, firstly, to firearms and ammunition and, secondly, in relation to stolen property. I find nothing offensive in those sections. In the society in which we live they are sections which have to be welcomed. I share the view expressed by Senator Hillery in relation to those sections and I certainly disagree with the view expressed by the Campaign Against the Criminal Justice Bill in their letter to The Irish Times, 21 August, which was:

(3) Sections 15 and 16 offer inducements and suggest immunity from prosecution for informing or “grassing”. At the same time they impose severe penalties for refusing to co-operate. The “supergrass” phenomenon in Northern Ireland should be sufficient warning to our legislators of the dangers of providing structures that would encourage such development in the Republic.

[134] Historically here the word “informer” has certain connotations and, more recently as the English language, as we understand it, has developed the use of the word “supergrass” has certain connotations. I reject absolutely the use of these words in relation to these two sections in this letter. Indeed, they are words that have been used quite freely by other commemtators on the Bill. The offences created by these two sections are warranted by virtue of the circumstances which exist.

There is one thing I find a little amusing in these two sections. Section 15 (3) states:

Subsection (2) shall not have effect unless the accused when required to give the information was told in ordinary language by the member of the Garda Síochána what the effect of his failure or refusal might be.

It is a Committee Stage point but I do not see why we should mollycoddle people who are suspects under those two sections. I feel comments coming from Senator Michael Higgins without him expressing words or language. He may disagree from a different point of view.

An Leas-Chathaoirleach: We will hear Senator Higgins' speech later.

Mr. Durcan: I am purely anticipating. Is there a belief in the Department of Justice that the Garda when exercising their duties in dealing with citizens do not use ordinary language? The reflection is there in that subsection. The subsection should not be there and it is a peculiar state of affairs when this type of provision is deemed necessary in our legislation. It is something I will be dealing with in greater detail on Committee Stage but I should like to know why it is included in the section.

Sections 18 and 19 deal with inferences from the failure of an accused to account for certain matters. These sections have been criticised on the basis that they attack the right to silence which has for some time existed in our criminal code for the benefit of accused persons. I do not regard that right as being sacrosanct. [135] There are many situations in legislation where the onus has already been deemed to shift. We have legislated for the shift of onus in the past. Many examples arise in our fisheries legislation. If somebody is found in possession of a net or an illegal fishing machine near a river or fresh water lake then the onus shifts. Quite frankly, I am not unhappy with this provision. I do not think it affects the right to silence. In introducing a provision of this nature, while the balance is changed, the Minister is legislating to achieve the right balance.

Sections 20 to 25 deal with procedures at criminal trials. Most of the amendments to our criminal code contained here would be welcomed. Certainly the provision which provides for proof by formal admission of certain matters must be welcomed. All too frequently criminal trials are held up and delayed because of the absence of one vital technical witness whose evidence may be given in a few moments, whose evidence may be absolutely necessary, but whose evidence by and large will be of an uncontroversial nature and which certainly would be accepted by both sides. I welcome that provision.

I welcome also the provision for the introduction of majority verdicts. That is sensible and particularly so in view of the fact that the composition of juries has radically changed since the legislation of the mid-1970s. We tend nowadays to have a jury with a far broader range of views than we had before the introduction of the last Juries Act. Bearing in mind that circumstance alone, the introduction of majority verdicts must be welcomed.

Section 27 allows the Minister to make regulations for the electronic recording of questioning, but not necessarily for universal application. It also includes the provision I complained of earlier, namely, subsection (4) which reads:

Any failure to comply with the provision of the regulation made in relation to the section shall not by itself render a person liable to civil or criminal proceedings...

[136] Again, I cannot see why that provision is included in this section. Electronic recording can be very helpful in a situation where a solicitor system is not to be the duty solicitor system is not to be introduced and if we are to proceed with the situation that we have under section 5 whereby a solicitor is to be notified as soon as practicable it is in my view a fact that the solicitor will not be available. The electronic recording of questioning should be available. Again, I think that the immunity from proceedings against those who record should not be contained and I ask the Minister to look at that very seriously.

I summarise my comments by saying this. The Bill essentially puts into legislative form the right to detain for a period of 12 hours, a right to detain for 12 hours from the moment of arrest, interestingly, not from the moment that the decision to detain was made by the member in charge. That is not an unreasonable right to give to our Garda. I have every confidence that our Garda will use that right in a proper fashion. I believe, however, that they should be protected against allegations of misuse by ensuring that they are subject, as is an ordinary citizen, to the rigours of the law in respect of a breach of regulations which would be introduced governing the exercise of that right.

The other provisions of the Bill which surround that basic right which the Garda, will now have want to be looked at carefully. Indeed, I would term it the “back-up” provision, a provision which provides access to a solicitor. That should be immediate and not as soon as practicable. The provision dealing with regulations should be such as to make the Garda amenable to normal procedures. I am unhappy with the situation where records will be destroyed within such a short period of time. I welcome the provision in the Bill which deals with offences committed on bail, and the provisions in the Bill dealing with reform of trial procedures. I find section 27 interesting. It is a section which if put into effect properly may operate in a wide and advantageous way.

We debate this Bill today at a time [137] when there is considerable worry in the country, when there is a lack of confidence in the forces of law and order. I left my constituency on Monday evening after a spate of robberies in small shops and small post offices. We debate this Bill at a time when in County Mayo we have had a complete rash of attacks on elderly people. We debate these measures at a time when people live in fear for their lives in rural Ireland, in the villages and towns of this country. I hope that the measures contained in this Bill will help to allay the existing situation. I will quote from the Commissioner's introduction the Report on Crime for 1983: He said:

The year saw the emergence of concerned groups of citizens coming together to consider trends and similar problems, particularly those relating to drugs in the Dublin city area. While the interest of such groups has to be welcomed and encouraged, a note of caution has to be expressed. These groups need to be ever alert in maintaining their independence and integrity in the interest of community welfare and in avoiding the encouragement of particular ideologies. The rule of law must be observed and the gardaí have a duty to see that this is done.

I share the concern expressed there by the Commissioner. I hope that the introduction of this measure, and the introduction of procedures within the Garda which will allow them to relate more closely to the population they serve, will allow this measure to be proved successful and will help to reduce the rising crime rate in this country.

Mr. M. Higgins: An appropriate place to begin is at the point at which Senator Durcan has just finished. All Senators who will contribute to the debate at its different stages are concerned about the rise in the crime rate, particularly in urban areas. The first question has been posed by Senator Durcan's concluding remark: is this Bill the appropriate intervention in a situation where people are affected by rising crime rates? You must balance your answer to that question by looking at other possible sources of intervention. [138] One is that you would have looked at the social setting in the context of crime. Another is that you would have looked at the deployment and the resources and facilities available to the Garda. Yet another, again adverted to by the last speaker quite correctly, is that you would have examined the relationship between gardaí and community and asked if you could make improvements there. All of these options have not been followed. A preference has been exercised in resurrecting what, again, Senator Durcan has correctly drawn attention to. I am glad he has done it for me, by shaking the dust off the 1967 Bill which related broadly to these problems and suggesting that the solution to this is before us in the Seanad, in other words, the option of reform in the criminal law.

I want to say that the remarks I have to make now are not directed against any Minister of the day. In particular, in the course of listening to the debate in the other House and in the course of reading the comments, I am very well aware that amendments have been accepted to the Bill as introduced almost a year and a half ago. That was correct, and I share other Senators' view that more amendments will be made before we finish the Bill in the Seanad, although I must confess — and I am sure it is a concern that every Senator would share — I am somewhat irritated by the brief debate which seems to lay ahead of us in the Seanad as compared to the other House. The record of this House is that on legislation of this kind often it has a very considerable response to make and some of the better amendments in legislation of this kind have come in the past from Seanad Éireann. I would have preferred if the Bill were introduced after the recess when there was no curtailment on time in relation to either Second Stage debate or Committee Stage but that is something over which we have very little control now.

The onus is on the proponents of the Bill to show how this instrument of intervening in what they suggest is a crime wave is superior to the other options that I have suggested. I am not motivated by difficulties with the speeches made by any [139] Minister for Justice in recent years. I am nearly 17 years lecturing in the area of deviant crime and punishment and I have seen no evidence from any jurisdiction that I know to suggest that legislation like this reduces the crime rate. Therefore, it is incumbent upon me as I go back over the speeches to ask, if this is so, if there is no evidence of effect to justify the Bill, why then has the Bill been introduced at all? I believe that the Bill is being introduced in an atmosphere of fear. When I say that it is being introduced in an atmosphere of fear it is now appropriate that I turn to the departure point of every speech made in the other House and some of the speeches that have been made since 11 July, namely, the accepted notion that we are in the middle of a crime crisis or that we are experiencing a crime wave. I will listen intently to the people who may come after me to tell me how they quantify this. Are we dealing with a crisis of crime, I will ask them, or are we dealing with a crisis of control? Can we, for example, say that we are so markedly under-policed, as Senator Hillery has suggested, when we have one garda to every 80 households in the country? Can we suggest that it is simply a matter of increasing the number of police? You will come quickly to questions that must be answered in this debate: is it that we have a crisis of detection? If we have, you are not getting it in terms of convictions and you are not getting anything less than 80 per cent in any of the courts. You are solving all the main murders, you are finding people that you are able to arrest and bring before the court.

The Bill therefore is necessary, is it, to deal with that residual 20 per cent in the court system? This is a very neat shifting of concentration from a genuine crisis in detection. The first attitude about the rising crime rate and the low detection rate which went with it was that it was the activities of Northern Ireland spilling into the South. That was the scapegoat for a while. There are many reasons why the detection rate is low and some of them have been correctly addressed by Senators now. One is that there is a crucial [140] role for the community in doing something about the crime rate, and here I am to nail a straight question on to the record that must be answered before people can vote for a Bill of this kind. Will this Bill have such an effect on the community that it will encourage them to want to do something to lower the crime rate? Will it? I suggest that its effect will far more likely be to alienate the community from wanting to co-operate with the Garda in reducing the crime rate. These questions simply cannot be avoided.

I looked at many speeches in the other House and they could be reduced to the notion of “victims I have known” where one person took one lurid case with which he was familiar as the starting point for a speech which was then delivered about the collapse of civilisation, of Irish society and so forth. With the greatest respect in the world I ask the Minister and his advisers to tell me what victim studies had been initiated before this Bill was introduced? In other legislatures where they are worried about the crime rate, the number of crimes that have been committed, one of the useful methods is to carry out victim studies and you can take your official statistics, you can bolster them with victim studies and so on, and you can get an idea of the true rate. We have not done anything of this kind. I am worried about the fact that this Bill has not been preceded by a White Paper on the whole nature of crime. This is all the more regrettable in so far as work is in print that has been executed by researchers at the Economic and Social Research Institute, for example — I am thinking of Dr. David Rothman — and in publications that are available from the National Economic and Social Council, and these are being ignored. They could have been a good departure point for a White Paper on the nature of crime.

There is no real merit except in an anti-intellecutal society to say these questions are all too complicated. I ran into this difficulty previously when the Whitaker Commission on the prison system was being formed and I repeat what I said then. The decision to set up the inquiry into the prison system and to exclude [141] the effect of the social background of offenders on the social setting of crime, other than those that you had already within the prisons, was an extraordinary omission. I made the case for a White Paper then but instead of having a White Paper drawing on some research that is beginning to become available we have, as Senators put it, shaken the dust off the 1967 Bill, ignored the options for studying all the other methods of intervening to reduce crime and decided that we need in fundamental terms to change the criminal law. The choice before the Seanad is whether it wants to go down that road and choose that option, the others having been neglected. Every ounce of training that I have had in the area of criminology tells me that it is a foolish and dangerous step. Second Stage is entirely in relation to the substance of the approach, because we can thrash out the implications of sections in some detail on Committee Stage.

I would like to expand just a little on this question of what is the true crime rate. Is there a crisis and what form is it taking? When people come to examine the crime rate these are the kind of difficulties that they face. First of all, there are criminal acts. There are acts known to the public, acts that people know everything about. Then there are crimes known to the public which the public have no doubt are crimes, and only a sub-set of these are ever reported to the police. Then in turn of those that are reported there are crimes registered by the police. Then there are crimes that are deemed crimes by the courts. People have been arrested and the charge has not been made able to stick. Finally there are the official statistics.

The official statistics can be used to say many things, and on 11 July when introducing the Bill in this House the Minister for Justice made clever use of the crime statistics. His use of the crime statistics was to say that there had been a massive increase in crime. For example, in the period 1973 to 1982 the recorded number of indictable offences rose from 38,022 to 97,626, a staggering 156 per cent increase. Since then, according to [142] the 1983 Report on Crime, that is the report of the Commissioner to the Minister for Justice already referred to, the figure has risen to 202,387. The problem is at its worst in our cities and large towns. Dublin with about a third of the total population accounts for 60 per cent of crime. That is a very impressive figure as you listen to it.

Mr. Lanigan: I am not smiling at the content of the Senator's speech. I am smiling at the picture on the other side of the document he is holding.

Mr. M. Higgins: I will be drawing your attention to that. One of the very good commentaries on the present Bill is contained in the music journal to which I am a contributor. I think this is what Senator Lanigan has referred to. I should not advertise in my speech but I am of course referring to Hot Press.

Let me say something about these figures if I can to restore the seriousness of the Leader of the Opposition. The point is this. Figures presented like this are of little real meaning unless you express them again in some context. May I make a point about the kind of figures that are quoted for between 1973 and 1982 or other figures which have been bandied about in the other House from 1951 to 1981? They are meaningless unless you take into account the urbanisation of the population, the fact that there is more property in circulation, the fact that there have been changes in the demographic nature of the urban communities. They are meaningless.

I want to add in a little figure of my own so as to correct them a little bit. In 1951, for example, the proportion of crime is very interesting. Between 1951 and 1981 there was a huge increase in the number of crimes committed. What the Minister did not say in his speech on July 11 was that the proportion of crimes committed against property in 1951 was 97 per cent. In 1981 the proportion of crimes committed against property was 97 per cent. The proportions remained the same. I have spent some time on this because the people are being psyched into the idea of what the crime rate is on [143] the basis of a total abuse of the figures in relation to crime.

It behoves the Department of Justice to address themselves to this problem. Gross figures presented out of context are meaningless and, worse than that, are dangerous. I will explain why they are extremely dangerous. They are inculcating not only in this country, but they have inculcated in other countries, an inordinate fear far above the real danger that is posed to them among, for example, the elderly. Thus, if you could ever discover it, you have the true rate of crime, the official rate of crime and the third point is that you have the perceived rate of crime.

I do not want to delay the House this afternoon but I gathered a number of newspapers, particularly evening newspapers in the Dublin area, which have quite simply created what can only be regarded as a moral panic among the community. This moral panic is all about very elderly ladies whose heads have been smashed open. Of course it has happened, and of course I condemn it. It is appalling. The whole idea is to take individual and singular crimes and create an atmosphere of moral panic. Therefore, legislators have a choice of operating within that panic and capitalising on it, or trying to approach the problem of crime in a reasoned and balanced manner.

There is a dangerous tendency not only in this country but in the neighbouring island. Politicians and legislators, far from wanting to understand the nature and basis of crime, even the volume of crime, are more interested in capitalising on the public perception of crime, the moral panic that has been created by the media very often and from which the exploitation can so easily come of those who have waited from 1967 to see legislation like this become law in 1984. I want to give a brief example of this.

In his book Polls, Politics and Popularism, published by Gower Press in London in 1983, John Clomons analyses the reaction of politicians to polls which show that people are worried about crime. I quote from page 68:

[144] The relative importance of punishment, deterrence and rehabilitation as the three objectives of sentencing has often been discussed. The public view on this is fairly clear. Asked ‘when someone is convicted of a violent crime, on which of these should a sentence be mainly based?’ nearly six out of ten say punishment (59 per cent); nearly three out of 10 say deterrence (28 per cent); and only just over one out of ten say rehabilitation (13 per cent) and Conservative policies, as laid down by Mr. Whitelaw, are very much in tune with this demand.

We had this spectacle before the last general election in Britain of the Conservative Election Manifesto Committee deciding that the speeches were not strong enough in the crime area, and withdrawing a section from the manifesto and putting it back in even stronger terms so that they could milk the public fear and exploit the moral panic that had been created by the media. We are going down that same road. I want before I leave these Houses — I began asking for it 11 years ago in 1973 — someone to come into this House and advise some Minister or his representative about what work is being done on the true rate of crime. The choice is as to whether we will legislate within this artificial atmosphere of fear or whether we want to make some important contribution towards reducing the incidence of crime.

Let us not be misrepresented on this because it happened on the occasion of the establishment of the Whitaker Commission. People will say it is a choice between the realists who want to do something about crime and the wet Liberals who are not really saying it was their background made them do it. May I drive myself to the point of distraction and repeat it as I have outside this House? Those of us who know something about the crime rate have never said that any individual's background makes that individual commit a crime. There are too many unemployed and poor people who live within the law to make that a nonsense.

What we have said — and I repeat it [145] here and I do not want it misrepresented or twisted — is that there is a connection in every country between fluctuations in the unemployment rate and the crime rate. It is a relationship between two rates. You have to answer that question. Therefore, it behoves Senators who may be making up their minds on the substance of the Bill, that is the substantial nature of the Bill, as an intervention in the problem of crime, to answer for themselves this question.

On whom will this Bill fall as a set of measures? If this is in a way one of the limitations of the civil libertarian position, civil liberty arguments are valuable and I will turn to them in a moment. But the basic assumption is that there are rules of the game, as to what you can remain silent about, what you can be made to say, and so on. We have listened to speeches about getting the balance right, as if we were playing a game and we worry that the rules will change.

When it comes to the likelihood of appearing in a police station, is there anybody sane in mind who would want to suggest that every citizen in this Republic is under the same vigilance of the police force, is likely to have the same number of visits from squad cars, is likely (a) to be brought under observation, (b) brought to the station, or (c) charged? Are we all equal in those three probabilities? The answer of every junior person who has ever bothered to ask those questions is that it is overwhelmingly loaded in favour of the lower socio-economic groups. It is they who will find themselves in the police station. It is they to whom the detention clauses will be addressed. It is they who will have the difficulty about remembering the name of their solicitor. It is they who will have to try to remember to make the Daddies and Mammies available and if they are not available will their child under 17 years know the name of a solicitor?

These are not just the facts of legislation like this and their impact in Ireland. They are the facts of legislation like this in every place legislation such as this has been introduced. There has been an increase in crime. There has been a fall in the detection rate. The detection rate [146] in crime is now down to somewhere around 34 per cent. One published report gives it at 37 per cent from way up to 50 per cent in the fifties. If there is a fall in the detection rate and at the same time a rise in the number of crimes being committed, is it not appropriate to ask the question: why is the detection rate falling?

Senators might be interested in a few other crude statistics. If you were to take the total number of indictable crimes that were actually solved in any year and divide it by the total membership of the police force you would find that in Ireland each member of the Garda Síochána solves three indictable crimes per year. In Great Britain the number is nine and in the metropolitan area of London they solve four. If you took the total amount of money that is allocated and divided it again by the total number of indictable crimes you would say that each one of these crimes that is detected is costing £6,053 to solve. Detection is down to 34 per cent for general crimes and in larceny it is down to about 26 per cent.

Here we are changing our criminal law without having published a White Paper on the rising volume of crime and all the options open towards intervening in such a collapsing situation in the detection of crime. Our criminal legal system becomes a scapegoat for unanswered questions about the nature of crime in Irish society, the connection between the community and the Garda and so on. It is very interesting and it is worth repeating that if one brings in a Bill like this and one does not have sufficient community co-operation with the police force, is one putting that option out of court altogether? Maybe the result will be that one will alienate the community from co-operating with the police. I suggest that many of the provisions that have been referred to already will have precisely that effect.

It is interesting to bear in mind that in the neighbouring island of Great Britain of all crimes that are committed there, 87 per cent are reported to the police by the citizenry. They rely crucially on co-operation with the community in relation to the reporting and the processing of [147] crime. It was calculated by one Home Office report last year that to reduce the crime rate in Britain by 1 per cent would cost £2.8 million sterling. This led a number of unusual people such as Sir Alec Newman and others to begin investigating the community option of looking at different models of community relationship as a means of lowering the crime rate. We will not have a debate here as to the forms of community policing that are possible. For example, it was pioneered in the United States by an innovative mayor, an elected officer as head of police with a great deal of community accountability as to procedures. In the London case apart from Islington it is being pioneered without such accountability being given to the community and with the police retaining control. Very often when we are debating these issues the argument seems to have a subterranean question buried in it. It is who owns the crime problem? I do not believe that the crime problem is a matter solely for the police. It is a matter for all of us as a community as to how the crime rate can be reduced.

We are not without evidence about what is happening in relation to crime. There is quite an amount of evidence as to the manner in which the fears I spoke about can be exploited. They can be exploited for a number of reasons. On 26 November a symposium was held at the Incorporated Law Society at which a number of distinguished people spoke on the Bill. I will give accurate references to assist my colleagues. The paper presented to the seminar on that evening by Deputy Commissioner J.P. McMahon had this to say. I quote from page 1. He referred to the question of the rise in crime:

The question arises as to whether the Garda Síochána is meeting that public need. It seems to me that the answer must be in the negative and that the principal explanation for this is the stultifying and negative effect of legal constraints which have emerged in recent years.

In fairness to Deputy Commissioner McMahon, he has had some influence on [148] the Minister for Justice. At column 1163 of the Official Report of 11 July 1984 the Minister said:

As I have already mentioned, for many years most people here assumed that the Garda had a power to detain suspects for questioning and the Garda acted as if they had. We are, therefore, quite used to the idea of people who are reasonably suspected of an offence being brought in for questioning and on that account it cannot be regarded as a new departure. Indeed, let me once again point out in this connection that section 30 of the Offences Against the State Act is not emergency legislation but is part of the permanent law of the land.

There are some very serious implications to be drawn from Deputy Commissioner J.P. McMahon's view that the efficiency of the Garda is being impaired by what could be regarded as a thicket of stultifying and negative provisions which seem to guarantee the rights of the individual. I should like to quote from page 2 of Deputy Commissioner J. P. McMahon's paper to the Incorporated Law Society entitled “Problems of Law Enforcement” so that Senators will not have to rely on my word about what has been happening to the crime rate. He had this to say:

Over the past ten years reported crime has increased by 156 per cent.

The Minister uses that figure also.

In the same period the percentage of crime detection has fallen from 48 per cent to 34 per cent.

That figure did not find its way to the speech made on 11 July. The problem we are faced with here is that regular procedures, which were obviously in contravention of some basic civil liberties if the people who were involved understood them, which had taken place and which people were used to, had been followed up by a number of very clear and valuable court interpretations and statements. The Chief Justice in 1980 had this to say:

[149] It has been stated many times in our courts that there is no such procedure permitted by law as holding for questioning or detaining on any pretext except pursuant to a court order or for the purpose of charging and bringing the person detained before a court. Any other purpose is unknown to the law and constitutes a flagrant and unwarranted interference with the liberty of citizens.

Now we have a problem. I presume that the eminent members of the Supreme Court and the Chief Justice are operating from the context of the Constitution. Of course, the Constitution guarantees the liberty of every citizen and he cannot be detained except under the rule of law. The question arises: are we therefore providing a law within the context of the Constitution that interferes with that assertion of right? If that is so, we are taking it upon ourselves to interpret the Constitution in a particular way. I have most serious and grave doubts if the Bill even as amended — the amendments are quite valuable and I welcome them — was to be passed by this House, if we would be operating strictly within the safeguards that we have come to assume derive from the rights and liberties section of the Constitution.

The question has arisen as to how these new powers will be used. They hang around three things: the changed nature of the right to silence, the changes that take place in relation to detection and the changes that have taken place in relation to the operation of the bail system.

Can anybody provide proof from any jurisdiction that changes in relation to the right to silence have been effective in court, that they have changed the nature of evidence? I hope that Senators will bear in mind that it is not as if the majority of the people are sailing out of the courts on technicalities and that nobody has been convicted of anything. The percentage conviction rate for the most serious of crimes is up in the high nineties; in most crimes it is up in the eighties. One criminologist, Séamus Breathnach, writing to the papers months ago suggested that Irish people before the courts seem to have a curious propensity to confess. [150] It is not as if people were flocking from the courts, which is the impression one gets from listening to people make the case, in crude fashion, on this Bill. Its measures are addressed to that residual that was in the courts. One might say, “Why all the fuss? Why all the need to do it?” The answer is, and it was given away by the previous speaker: to appear to be doing something about which the public have been put into an unholy fear.

There are a few points we need to make. As an approach to the crime problem there is no justification for the Bill, none has been offered and none exists in any White Paper. One might say that if the draft sections were there since 1967 and if there was a tradition of criminology coming into existence for 17 years, could we not reasonably have expected a White Paper on the rising crime problem to have been put together? It is pathetic either on this occasion or on the occasion of the establishment of the Whitaker Commission for people blandly to announce to legislators in Ireland that the causes of crime are something about which few people would be in agreement. We would hardly be in agreement about the weather but we have weather forecasts every evening after the news. It is just a pathetic failure for those responsible who have failed to produce a White Paper and who have been obstructive of the efforts of those who tried to analyse the nature and causes of crime outside their own competence but within that of those to whom it was given, the people who had the primary responsibility for this.

Senator Durcan said that he is not too worried about the detention powers. Perhaps because I am of a more nervous disposition, I cannot share Senator Durcan's sanguine approach towards the powers of detention. These powers are dangerous; they are couched in language that is vague to the point of danger. There is a problem of the fundamental change it makes in the law. Let me not lose that point, which is the core point. We are introducing for the first time formally into the law, detention on suspicion. Some people have suggested that this is something we could normally expect in these times. I had reason recently to visit some [151] people who had been moved out of the way for a weekend during the visit of a very important person to Ireland. A number of people fasting in front of a prominent building in Dublin were told they would have to move and informed rather casually by the person that democracy had been suspended for the weekend. Later on, when 33 women were arrested and brought to the Bridewell, I had occasion, with Senator B. Ryan, to visit these women. I saw in practice what are the theoretical safeguards that are being offered by the proponents of this Bill.

On the occasion of our visiting the women and trying to find out had they made a phone call, we were informed by the sergeant in charge that phone calls had been made on their behalf. When I asked him to tell me which women had had phone calls made on their behalf he could not. Our conversation was prolonged, and it ended by him pointing to a Portakabin across the yard and saying: “The phone is over there and anyhow it is out of order. What do you expect us to do?”

I have read the speeches about people asking whether you could make one phone call or two phone calls. You can see the force of such language as “as far as is practicable”. What were we supposed to do? Thirty-three women were being held in most unsatisfactory conditions, people against whom charges were not even offered in the second hearing of the court, following their being brought to court. They were in the position where they did not have this facility available. I could delay the House by giving the precise details of how the 33 women found themselves in the cells. Another woman held in Cabra Garda station, Petra Breathnach Childers, similarly was held under the Offences Against the State Act.

The experience of the operation of the Offences Against the State Act is that between 80 and 90 per cent of the people against whom it is directed were not prosecuted under it, yet they were detained for a while. The experience of this Bill is that it treats as a potential criminal [152] anybody who is floating around in the population or more particularly and in practical and realistic terms those against whom such police vigilance can be directed. No regulation as to making phone calls and access to solicitors over the weekend, all good points in their own way, can take from the nature of the change that is being made — a new power of detention, detention for the purpose of securing information. Logically, back from that was the crime wave and the crime wave was the creature of the moral panic which has been developed in Ireland for the last ten years in the absence of a deep informed commitment not to understand or study crime or its origin or its nature.

In case people think I am inventing it all, that I am one of the people who has never been mugged and that therefore I live a charmed life of peace, before we get carried away and are afraid to go to our cars in Kildare Street, we should bear in mind page 22 of J. Lea and J. Young's book on the law and order crisis in the eighties. They give some figures for homicide per thousand of population. In Colombia it is 25.5; in Mexico it is 22; in Guatemala it is 14; West Germany is 1.1. We are less than that. What are we doing to ourselves by whipping up these fears based on real crime?

Every old person who is attacked in any way is somebody for whom I would feel the greatest sympathy. I emphasise they have not been surveyed; communities have not been surveyed to give us victim rates in particular communities. Have we not thought in a modern electronic age of linking up people who are living alone and who are in danger like this, not only of being attacked but also becoming ill or having other difficulties? Is it impossible in an electronic age when cable television passes their doors to have some form of buzzer system whereby they could call people and alert people to their needs? We are not approaching crime in terms of the needs of the community, in terms of the needs of sections of the community about whom we would be worried. We have decided that we are going to take powers that were in the [153] courtroom and we are going to shift them into the police station. That is what we are at. I might say that my views on moral panic have not been invented by me. I can give the House an example of that. Ramsay Clark, a former Democratic Attorney-General of the United States — I am quoting from a book by J. Lea and J. Young, What is to be Done About Law and Order? Crisis in the Eighties — had the following to say:

Most lives in America are unmarred by serious crime. The only meaningful impression such people can have about the incidence of crime is made from the press, other communications media and the police. As crime becomes more topical, the tendency of distorted impressions to mislead increases.

It went on:

Is it not time that we asked how we might intervene in communities in an accountable way in which communities would define their needs and the police would be asked to assist them?

That is the American model of community policing, neighbourhood watch and so on. Is it not time we approached it from that avenue? We could take into account the whole deprivation background of many of the families that are involved in the crime wave. We could learn more about them the victims of crime in this way.

What we have, therefore, is detention for information-gathering purposes. We are going to have penalties — this could really arise from being incoherent enough — for withholding information with all the suggestion that one quickly solves ones problem by “fingering” another person. I take the point Senator Durcan was making, that for people to say it is parallel with the supergrass system is possibly an emotive over-statement. I would accept that. However, what I say is that if one is in the situation where one can solve one's difficulties by remembering who it was the piece of rope in the back of the car belongs to and so on one is, in fact, being invited to finger somebody, or to panic or to finger some enemy. A point which has been made by [154] people who have studied crime elsewhere is that if one happens to live in an area where there are violent criminals and one gives one of their names one is inviting their wrath later on on the local community, on one's household, relatives and so on. It is a badly thought out provision. It is one which to my mind is very dangerous in its implications for the people who will be involved.

On the question of the complaints procedure about which a great deal has been said already, I would like to know who will be the people in charge of this complaints procedure. No doubt when the Minister comes to the next Stage he will tell us the precise degree of independence that they will enjoy. It would certainly be very unsatisfactory if a complaints procedure was internal and that it did not have the value of having people on it drawn from outside. I agree with Senator Durcan that section 7 (3) which offers the guarantee of immunity to the Garda from criminal and civil proceedings is an extraordinary piece of writing. I doubt if that will stand up constitutionally. I doubt if this House, or the other House, or both of us acting as an Oireachtas, have the power to confer immunity like this on an individual or group of individuals but, no doubt, these problems will be solved for us.

In relation to section 5 in which the phrase occurs, as it does so often in the Bill, about access to a solicitor and notification “as soon as practicable” I have given the House an example of “as soon as practicable” in action during a particular weekend involving the women who were in the Bridewell. I am not positing my case entirely on their experience. I have seen it happen again and again.

There is the question about the use of ordinary language. Indeed, Senator Durcan is correct in thinking that I would take exception to that. For the people who have been in a police station — I am not pro-criminal — they are mostly dealing with people from an entirely different background from themselves. For example, the recruitment into the Garda is not exclusively urban and yet because of the expansion of the urban population [155] there is the deployment of people of different backgrounds and different linguistic usages and so forth in police stations. But more important than that — it is something people know for a long time — is the fact that one can use language in an authoritarian way so that it becomes just a piece of mumbo-jumbo to the poor unfortunate who is there. There is some force to the question “ordinary language” but I can imagine a garda in court saying, “I then acquainted him of his rights in ordinary language”. How would one give a demonstration of that? It is just again an extraordinary piece of drafting wherever it came from. Of course, I should say that I suspect where some of these words came from. They have an origin in the drafting legislation of the island next door.

Mr. Lanigan: They come from the language of parliamentary draftsmen which is totally different from ordinary language.

Mr. M. Higgins: There are other points I wish to make but I want to leave time for as many Members go get in on Second Stage as possible. This Bill quite frankly has as its departure point, as the 1967 Bill had, a profound misconception of the nature of crime in our society. It is relying on statistics that are problematic, about which we could have had a great deal of research published. A White Paper was the appropriate place to do that. It was drafted, developed and initiated now in an atmosphere of fear, an atmosphere that is drawing from a moral panic that is created among the public. It is doubtful if in fact it is an appropriate response in constitutional terms but in so far as it is taking place at the same time — do not talk to me about community service orders — as the neglect of other options of handling the crime problem such as the community, better resources and so on, it is an extraordinary selection from the armoury of possible strategies that are available. For example, has anybody or can anybody say that he is happy with the present training procedures of gardaí?

[156] The previous speaker mentioned a 19 year-old garda. I know there are many intelligent and fine people in the Garda but even at 19 I would not regard myself as being totally mature. The point was that such a person would be interpreting the provisions of these Bills. Are we perfectly happy with the very brief short training period gardaí have at the moment? Why not extend the Garda training period? Why not have experiments about involving communities with the police? Why not go through all the crime statistics? Why not carry out victimisation studies? Why not ask about the background of criminals? The tragedy about this opposition to research, the causes that can never be known, is that we know children in difficulties in school attendance who will be in trouble in the juvenile court, we know the families in difficulty but we refuse to draw on that experience. Instead we shift our gaze and we take up this dusted-off 1967 model that has been modified mostly in terms of drafts produced in Britain, many of which have been rejected by the British Legislature — I will give details of those chapter by chapter on Committee Stage — and decide that we are going to change the criminal law. The changes in the criminal law that we are proposing go through all the different procedures that are mentioned, detention for a new purpose, penalties for withholding information or being unable to explain oneself, changes in the traditional civil liberties in relation towards silence and a greater use no doubt of confessions in court. I should like to make a suggestion for the sake of those people who might want their minds cleared about the suggestion that I said I welcomed the amendments the Minister put forward in the other House, particularly the half dozen or so that came at the suggestion of the sub-committee of the Labour Party and so forth. The point I want to make is that this Bill still remains somewhat defective. The argument that will be principally made is that by removing section 16 of the Bill as introduced in the Dáil the principal objectionable feature of the Bill has been removed. I would like to make a suggestion in this regard and it will appropriately be repeated [157] on Committee Stage. If that is so, why not introduce by way of explicit amendment a phrase such as “nothing in these provisions shall interfere with the right to silence”? If, as we have been told by the media, the right to silence has been restored and that its integrity is not now at stake, there will be no difficulty at all about such an amendment and that will enable us to be briefer in our contributions on Committee Stage. If, however, that does not happen, we are then back to what I suspect would be a more reasonable interpretation, that is, to look at the sections which surrounded the original section 16. What you will find, therefore, is that while the specific assault on the right to silence which section 16 contained is now gone, the effective implementation of the surrounding sections is precisely to achieve the same result. The right to silence is so changed that it is, in fact, achieving the same result. I would be glad to be assured on these matters.

I have very little more to say at this stage except that I want to draw a slight distinction between what some of the previous speakers said, namely, that this Bill is a Committee Stage Bill. It is not a Committee Stage Bill. It is a Committee Stage Bill in so far as you can seek further amendments to make it less dangerous in its impact upon the poorest and most vulnerable sections of the community than when it was first introduced. I hope we have a Committee Stage debate that will enable us to do that. But it is most importantly a Second Stage debate because it is at this Stage that we take this Bill, after 17 years when its original model the 1967 Bill was introduced, and we have to answer for ourselves if this Bill is an appropriate intervention in a genuine problem that we want to solve at this stage. If people are not satisfied with that, how can they be satisfied with the Second Stage of the Bill? How can you say that you agree in substance with the impact of this Bill and then go on to say that you can make such amendments as will give guarantees and minimise its impact and so forth?

I want to put emphatically on the record that I do not accept that this Bill [158] is appropriate or valuable or will in any way make an impact on the crime rate. Apart from the dangers of a civil liberties kind, there are the much wider dangers in terms of the sections of the community that will be affected by the Bill, the socio-economic categories who will be affected. There is another dreadful effect. That is, that in passing this piece of legislation and in driving more members of the community particularly in the poorer areas against you, you are effectively writing off the option of using the community to assist you in reducing the crime rate. The result will be to alienate the community. The result will, in fact, wipe out that whole approach towards solving and reducing the crime problem. I would have thought after the discussions that took place in public in the Dáil and elsewhere that the appropriate thing to do would have been to give us the White Paper on crime and vandalism, on the nature of communities and the different responses and on assessing the problem and so on and to set up some kind of approach towards criminology.

As I said at the outset, having spent 17 years in this area of deviant crime and punishment, I cannot see one shred of evidence to suggest that this Bill will be successful. I want to correct something that was said during the debate in July, that is, the notion that there is a vindication for this Bill in the Ó Briain report. Mr. Justice Barra Ó Briain put his name to the majority report that is known as the Ó Briain report. He did not affix a minority report; he affixed an addendum which is in his own name. You have to take every statement attributed to Mr. Justice Barra Ó Briain by the Minister and by the other people who are spokespersons for this Bill in the context of the appropriate passage in the majority Ó Briain report. You will find that remarks of Mr. Justice Ó Briain in his addendum have been taken out of context and often taken to refute more general assertions as to the importance, for example, of using less and less self-incriminatory evidence and so forth to which his name is affixed. This House deserves better than to be misled in this regard. I hope on Committee Stage to go in detail through [159] the part of the Ó Briain report which is used to bolster arguments for which its majority recommendations were never intended. Very often its recommendations were to secure the opposite of what this Bill is seeking to achieve.

Mr. Lanigan: I find it difficult to follow the erudition of Senator Higgins. At times I felt that we were not discussing the Criminal Justice Bill at all but that we were having an opportunity to go into the problems that are besetting our society in general. For that reason it is important that this debate should take place. Within the parameters of the debate it is important to consider the name of the Bill, which is the Criminal Justice Bill, 1983. I wonder, are we talking about giving criminals justice or are we talking about giving justice to people who are accused of crime? The title is the Criminal Justice Bill. I do not think that you can debate something which is supposed to change legislation and headline it criminal justice. If we are talking about giving justice to people who have been already convicted of crimes, then this Bill is a total nonentity because it does not deal with people who are convicted of crime. It is supposed to change the parameters within which people can be brought into custody and, having been brought into custody, can be accused, detained and eventually convicted of whatever crime they are purported to have committed.

Senator Higgins in his detailed analysis of the Bill brought up the question of statistics time and time again and he said that statistics can be used and misused. It struck me that on a certain occasion when he was deliberating on whether the Labour Party should go into coalition with a certain other party, as Chairman of the Labour Party he may have looked over at a certain other statistician and suggested to himself that he might be better off making out the timetables he was making out in 1969 as a statistician rather than as Leader of the Opposition looking across the table at Senator Higgins.

What this Bill is doing is the essential [160] point we have to discuss here. The background to the introduction of the Bill was a supposed increase in the crime rate and the fact that in certain areas in Dublin and in other urban areas there was an increase in crime such as the stealing of cars, breaking into houses and crimes against property. Against that background this Bill was introduced. Over the past number of months we have seen a diminution of the content of the Bill. We have seen changes made to such an extent that we are sitting and talking here in a total vacuum because the Bill in itself cannot be implemented until such time as the regulations which have to be brought in to deal with certain parts of it can be introduced. The regulations will have to be debated in the House before the Bill can be implemented. We are talking about a Bill which states that the regulations which have not been made part of the Bill have to be brought in to be debated in the House. Why are we debating the Bill in the absence of the regulations? The Minister has had at least two to three months in which to bring forward regulations. If there was a need to have this Bill introduced in the short term, then for the past two months the regulations could have been discussed with the various authorities and today we should be discussing the regulations which will attach to this Bill in the future. The regulations must be introduced before the Bill can be implemented. Section 30 provides that every regulation under this Act other than a regulation under section 7 shall be laid before each House of the Oireachtas as soon as may be after such regulation is made. This is a very vital point. Except under section 7 the Minister shall make regulations providing for the treatment of persons in custody in Garda stations. The whole purpose of the Bill is thrown out because section 30 provides that every regulation made in this section, except for the one about people in custody being questioned, shall be laid before the House. So what is the purpose of the Bill? The drift is towards trying to get information from people, trying to protect their liberties and then the third last section takes away from the individual every right that he has under the Bill in [161] terms of discussing it in this House.

The Bill is being introduced in an atmosphere of a perception of a society which is crime-ridden, in which people are not safe when walking the street. This in many cases is a fact and not just a perception. We have seen the breakdown of law and order in certain areas. Crimes against property have increased. The number of people stealing cars and breaking into houses has increased. We are told equally that the rate of crime is increasing. As Senator Higgins said, we have an increasing population. We have an increasingly young population who possibly are frustrated because they cannot get the jobs that they want or because they cannot live the type of lives that they would like.

A young boy going out and stealing a car and driving around feels that he is better and bigger than his peers. I can understand to a certain degree the frustration that has caused that and why that young lad wants to appear to his peers as being better than they. He cannot be better than they in the sense of having a job, of being able to provide for himself and his parents, of being able to give something back to society. To steal a car in an area where cars are being stolen gives him a sense of being better than his peer group. I can understand this. That does not mean that I condone it. I have been a victim of attacks by people stealing my car. I spent 21 days in hospital after I caught a group of people stealing my car. I did not understand them. I felt the pain but on reflection I must say that if I saw somebody stealing my car tomorrow morning I would let him off, that the car is less important than my leg.

Does this Bill do anything to give to the people who are involved in this type of activity anything that will take the frustration away from them? It does not. Because of the changes that we made over the past months this Bill will be without teeth because we have to produce the regulations in the House here. Because of section 30 the regulations that are to be brought in do not apply to the very basis of the Bill which purports to give the Garda the right to question people, to hold them in custody for six [162] hours and if midnight comes to hold them in custody until 8 o'clock the next morning and then for a further six hours.

This Bill will not do anything to curb the problems that we have in our society. We agreed in principle to support the trend of this Bill when it was first introduced because of the public's attitude towards the rise in the crime rate. All the Bill is doing is giving Senators the opportunity to discuss problems in our society which are not going to be helped by its introduction.

The Garda are totally frustrated because district justices and Circuit Court judges are not applying to crimes the sentences that society and the Garda would wish them to apply. Even though it might appear to many people that to go to Mountjoy is to go to a first-class hotel — they will talk about the cost of maintaining somebody in Mountjoy — that prison is totally out of date. It is a 19th century prison which has not got the rudimentary elements of sanitation. In the women's prison 30 women are in five cells without the rudimentary sanitation facilities that they would have in the worst slum in Ireland. Young people in those prisons are being kept with criminals, they have no chance of breaking away from the teaching that they are going to get there, and we are cutting down on the updating of facilities for detention.

I am totally in favour of bringing somebody who has been a victim of society or has been victimising society into an atmosphere where he can learn to change and be taught methods of living other than those he has known, but what happens when you bring somebody into an outdated prison like Mountjoy? That person has not a hope of coming out of that place without being contaminated by the atmosphere within it. The people who work in these prisons are equally frustrated by the physical conditions in which they have to work and they cannot do the job for which they are there. They cannot help somebody who is put into Mountjoy because of the physical constraints that are on them.

Sometimes we criticise the press and sometimes we praise them. The biggest [163] con job that was ever done on the people of Ireland was done during a debate on a very important matter like the Criminal Justice Bill. The con job was processed through the media today when we had the beautiful pictures of the pool tables outside the hall in Mountjoy, the visit to the prison by journalists yesterday and their suggestion that Mountjoy is not as bad as it is painted. Today we started to discuss the Criminal Justice Bill. We will continue to discuss it. The press fell for the con job that was perpetrated on them by whoever is the PRO for the Department of Justice. It is a disgrace that while we are discussing this Bill, people are reading in the papers that conditions in Mountjoy prison are not, as I have suggested, nineteenth century conditions. I agree with putting people into a situation where they can reflect on what they have done and be treated for whatever problem they have, and possibly come out after a period of detention and be able to take their place in what we would call a reasonable society.

Mention was made of recruitment to the Garda and the fact that some of the gardaí are too young and are not able to cope with the problems they come up against. This is quite true. We have an excellent Garda recruitment system. We have an excellent training system for gardaí. The problem is that it is not long enough. Gardaí are coming out of Templemore, which is an excellent college. The people who go in there are excellent. When they go to a Garda station not enough time is given to senior officers to continue their training. It has been said that young recruits can only be trained in the streets. This was all right in the past. There is a difference between being trained in the street in Thurles or Kilkenny and being trained in Ballyfermot or Cabra where there are social problems which, generally speaking, these people have never come up against.

It has been said that many of the recruits come from rural backgrounds and, taking the nature of our educational system, that is quite true. There are differences in Irish society which are reflected in the way people live and in [164] the way they are reared. This does not mean there is anything wrong with living in Dublin city centre in a densely populated area where people live next door to each other and if you knock on one door the noise can be heard ten doors down.

To put a recruit from a rural background straight out of Templemore into that sort of a society, without giving him an opportunity to learn what these people are like, and to be told of the problems that are associated with living in a densely populated area is wrong. Until we get a system of training in social matters as well as in police matters, we will have this type of problem.

We have the ludicrous situation in Kilkenny where we have training facilities for social welfare workers who come from UCD having taken a degree in social science. They are foisted on poor innocent people who have problems. They are learning how to cope with their own problems when they are supposed to be dealing with the problems of the underprivileged. Their learning process is being enhanced but the poor people they are supposed to be helping are going down the drain and getting bad advice from ill-advised people.

The questions of urbanisation and training of gardaí go hand in hand. It has to be realised that the urbanisation problem is one to which the Minister for Justice will have to address himself when he talks about the training of gardaí. The social problems we have in the cities of Dublin, Cork and Limerick, and to a lesser extent in the built-up rural areas, have not been addressed by the Department of Justice so far in their war against so-called crime.

An artificial atmosphere of fear was a phrase used by Senator Higgins. I do not think an artificial atmosphere of fear would be my way of putting it. There is an atmosphere of fear among older people in certain areas. This was always there to a degree. When the elderly live alone they have a fear of being deprived, of going hungry, of being mugged or whatever, and there might be an increase in this level of fear in urban areas. It can be overstated.

The communities in which those [165] people live have a lot more to answer for than the State. Today there are too many people who push aside their elderly parents, an aunt, or uncle, or grand-aunt and forget about them. “I am all right, Jack. To hell with Auntie Molly. To hell with my father and mother. They only gave us whatever we have.” Many of the problems we have in Ireland today are not related to this Bill. They are not related to justice in the terms of the Criminal Justice Bill. They are related to the fact that there are too many people in Ireland today who will not look after their own people.

The idea of the extended family, which was basic in the early days in Ireland, is breaking down. Elderly people have given their farms to their sons and daughters, and left vast potential incomes to them. Those are the people who come looking for medical cards for their fathers and mothers because they are not prepared to pay their medical expenses. If those people thought for a while we would not need this type of Criminal Justice Bill which in my view is a farce. It will do nothing for the very people it is supposed to help.

The Garda are fed up with the discussions on this Bill. I agree with what some other speakers have said about some of the gardaí wanting draconian measures to be brought in which would give them every right to do whatever they want when somebody is in custody. The majority of gardaí do not want that. They want to be able to ensure the orderly living of people within their area. They are not interested in harassing anybody. They just want to ensure that in the area for which they are responsible, people can live what we consider to be an orderly and reasonable life. As in every other area of life, people tend to get upset when they are harassed. Gardaí can be upset when harassed. Let us be quite straight about it, there are many gardaí who take a lot of harassment from a lot of people and they do not over-react. But we hear about the very small minority of gardaí who over-react. It is very important that we should acknowledge that in a stress situation gardaí are just as human as anybody else in society. We should as a [166] society remind ourselves that gardaí in a difficult situation can react as human beings in the first place and as gardaí in the second place. I should like to praise the vast majority of the gardaí for their constraint in dealing with very difficult situations over a long number of years.

I have just received a note from a Senator. I will only be three or four minutes. I do not know who sent the note. One should never lose the trend of what one is saying when one receives a facetious note from a member of the other side.

The complaints commission we are promised should help to take away the bulk of the problems that we have with the Bill. Nevertheless, there are a number of items in the Bill which totally negate any constraints that a complaints commission can impose because it states quite specifically in section 7(3):

A failure on the part of any member of the Garda Síochána to observe any provision of the regulations shall not of itself render that person liable to any criminal or civil proceedings or of itself affect the lawfulness of the custody of the detained person or the admissibility in evidence of any statement made by him.

It says a failure on the part of the gardaí shall not, so the garda, whether he is right or wrong, can do anything he likes under that section. He is not then personally liable to any criminal. The same criterion does not apply to the person who is charged. Sub-section (4) of that section states:

A failure on the part of any member of the Garda Síochána to observe any provision of the regulations shall render him liable to disciplinary proceedings.

He can go away from the law; he can do anything he likes under the first section. He will not be personally liable. The public are helped a little in the next section by suggesting that he shall be liable for disciplinary proceedings. It is total negation of the rights of the individual and a giving to the gardaí who want to be difficult the right to be difficult and to be liable only to internal disciplinary procedures. [167] Why are the gardaí not under the same constraints as anybody else? If they make an unlawful statement, if they go through with a procedure which is unlawful, why should they not be brought under the constraints, criminal procedures and the same law as anybody else in the community? This is one of the problems with the Bill. When a person not below the age of 17 years is detained he may consult a solicitor, but it does not state that the solicitor can be present when he is questioned under section 6. All it says is he can consult his parents if he is under 17 and he can consult his solicitor. Under section 5 it would appear to the person being charged that there are constraints against the legal people. In the next section it just states that if one is detained pursuant to section 4, he may be searched and so forth, but it does not say that the solicitor can be present or should be present or that the parents can be present during that particular type of interrogation. It is very weak and does not give any protection. What is the point in ringing your solicitor or ringing your parents if they cannot be present when the interrogation takes place? All that means is that they know that you are in custody in a certain station, but it does not give you, as somebody who is purportedly involved in a felony, any protection.

As regards the destruction of records, section 8 (2) suggests that records can only be kept for six months. Fingerprints and photographs and all that can be kept for only six months. It states:

Notwithstanding anything in the foregoing provisions of this section, a justice of the District Court may, on the application of the Director of Public Prosecutions, authorise the preservation of a photograph or print for a period not exceeding six months on being satisfied that it may be required for the purpose of further proceedings in relation to the offence.

In the first place it says that the Garda and the Department of Justice have six months in which to pursue a person about an offence and that all the records after that period will be demolished or done [168] away with. Then it gives the Director of Public Prosecutions another six months. In the meantime if a person is under suspicion for any particular crime it would appear as if the records can be held ad infinitum by the Director of Public Prosecutions going to the District Court and getting the records held just in case they might come up with some evidence after the six months. Let us be quite straight about it. If they cannot find evidence of a crime committed within six months they are not diligent in their duty and the records should be totally destroyed. It does not say who will destroy these records. It does not give any protection. It does not state that these records will be destroyed in the presence of a solicitor. It does not say they will be destroyed in the presence of the accused. It does not say they will be destroyed in the presence of anybody only that they will be destroyed. That is bad law.

At present there is a perception that prisoners are living a life of luxury because in certain circumstances we hear of them having TV sets or video sets or whatever. It must be realised that taking away one's liberty is the prime deprivation that anyone can experience. If one cannot open one's door that is a deprivation of liberty irrespective of the material comforts one has inside the four walls. As long as somebody else has to open the door for you in the morning, that deprivation is of paramount importance. The deprivation is of liberty, irrespective of the conditions that people live in, is something that people should understand. The only way to understand it is if you were locked in the smallest room in your own house and you had to wait until somebody let you out. You would soon see the difference between being able to turn the door handle yourself and having somebody else do it for you. When people talk about prisoners living in exceptionally high standards in prisons they do not realise the deprivation that is caused by being actually under the control of somebody else.

We must get over this idea that criminals live in the lap of luxury. When one looks at the primitive conditions, irrespective [169] of what the press tells us today, that we have in Mountjoy Prison particularly, we as a society must question more and more what the press write. I cannot but come back to this con job that comes out of Mountjoy Prison, that they are living in good conditions and that everyone is happy in that prison. It is not so. The prisoners are living in primitive conditions. The people who are looking after the prisoners are working in primitive conditions and whoever was the PR man who got involved in this exercise in the three major newspapers today should be put into Mountjoy for 12 months or 12 days actually to realise what the problems in it are.

The Bill, I feel, will do nothing to decrease our major crime rate, the problems which we have which are drug-orientated. There is absolutely no doubt that the young lad who takes some sort of a drug, having bought it from a pusher, can end up in Mountjoy and he will not know who his solicitor is. He might be as high as a kite on whatever drug has been pushed on him and he is supposed to tell the authorities his solicitor's name; he is supposed to be able to ring up somebody and he will come along. It is going to do nothing to stop the scourge of the pusher, the people who are creating drug-orientated crimes — they are mainly drug-oriented at present. There is no doubt that the drug pusher knows his solicitor bloody well and he is a bloody good client of his solicitor and he will employ his solicitor extremely well, whereas the young person that has the drugs pushed on him is in a totally different category.

We might be able to get the young person under this legislation. It is suggested that he will give the information as to who was pushing the drugs, as to who has the drugs, as to where they are coming from. I do not think it will do that because that young lad will be too scared, he will be afraid of the godfather who pushed the stuff on him. We should appeal to the Minister for Justice that if there are community groups, even if they have Sinn Féin people working with them, irrespective of where the impetus comes from, if these people are concerned about the problem of drugs in their area, it is [170] imperative that the Minister for Justice or other Ministers meet and talk with these people, irrespective of whether these people might be there for political gain. If they are there with concern, even if there is political gain in the long term, I think they should be met and that the problem should be discussed.

Let us be quite straight about it. Many of the people who are concerned parents, who are not members of Sinn Féin, are concerned about their own children and about the problems their children have. They could equally be politically aspired. If they are Fianna Fáil politically aspired, Fine Gael or Labour, that is all right, but do not bring in somebody who has political aspirations for Sinn Féin. I do not agree with Sinn Féin or any of their methods but I think if we are talking about the major problem of drug abuse and if there are concerned parents, I do not give two hoots what is the political aspiration of such persons. They should be listened to and talked to in the same way as any concerned parent should be considered.

Over the past number of months the Garda have come in for much criticism for not doing their job, and they have been criticised, to my mind, very unfairly because there are not enough of them. We have had cutbacks. They have not had the proper training and that is not their fault. I have seen gardaí in situations which could have been explosive and I have seen the way the human attitude can take over. I am glad we have a new superintendent in Kilkenny who seems to have the idea that he is there to help his men to help society in general. We had a fleadh ceoil in Kilkenny and I suppose if you get 100,000 people into a small area and there is a lot of music there is a lot of drink, there are people staying up all night sleeping on the streets, various explosive situations could have developed if the Garda had not taken a community orientated look at the situation and defused rather than infused problems.

We had a beautiful situation last Saturday week when there must have been 3,000 or 4,000 people at a crossroads in Kilkenny and they were all standing [171] outside public houses and were playing music and drinking, and along came a number of cars with horns hooting — a wedding party. There was a garda standing at the crossroads, he put up his hand, stopped the cars coming down, went over to the first car, opened the door, took off his cap, stooped into the car and kissed the bride. Suddenly what might have been a very difficult situation was turned into a very human one and the crowd, many of whom were drunk, many of them were in good form, applauded the guard, and it gave him and the whole area the idea that this man was not there to hinder things, he was there to help them. It was just a little human touch and often the human touch can do much more for the prevention of crime than the application of the big stick.

When discussing this Criminal Justice Bill we must take into account the fact that the situation in Mountjoy Prison relating to women has not changed since Brendan Behan wrote the famous song. You have 30 people there at present. There is a young girl there of 17 years of age. She sleeps in a cell with another girl. She is in there because she happened to be in a stolen car with her boyfriend. She is getting no help.

If this Criminal Justice Bill goes through there is no doubt that more people will be put in prison. We have a shedding rate, as they call it, in Mountjoy, which is enormous. They are people who are released before their sentences are up or released before their time under an amnesty or a change in the regulations. One of the other main reasons put forward for bringing in the Bill was the number of crimes committed by people out on bail. The Bill goes a certain degree towards ensuring that people who have been granted bail will not be foisted on the public and be able to go out and perpetrate other crimes either against the person or against property.

As I said at the outset, I would have expected after the summer recess that the Minister would have produced the regulations to coincide with the Bill and that the complaints procedure would [172] have been set up. Irrespective of what I or anybody says, the Bill will be dumped and gather dust because its terms cannot be implemented until the regulations are introduced and the complaints procedure is set up. Irrespective of the pros and cons of the Bill the fact is that the Bill is a non-starter because of the constraints regarding the setting up of a complaints procedure and publication of regulations.

Senator Michael Higgins dismissed rather abruptly the Community Service Bill, and in mentioning that its terms had not been implemented conveyed the impression that it was an innocuous piece of legislation.

Mr. M. Higgins: No, that it was insufficient.

Mr. Lanigan: We discussed and passed that Bill. I got the impression that the Minister for Justice was running out of the House the evening we passed that Act in order to implement the terms of it, but we have not seen one application of the Act. Every probation officer, junior liaison officer, District Justice, those involved in the free legal aid system and every garda on the beat wants to see the implementation of that Act. Why have we not seen it? The reason is the same, nobody gives a damn. The Seanad may pass a Bill which seems to help to curb the crime rate or the increasing levels of violence but that is not enough. This Bill depends on regulations and the establishing of a complaints procedure but the legislation on community service orders which went, a number of months ago is not being implemented. It was a waste of time. It has been suggested that the Seanad is a talking shop that has no power. If we pass legislation to protect the community and the people given the job of implementing these decisions do not do their job then we are an innocuous talking shop and we might as well be at home.

I would like to see the Offences Against the State Act and this Bill being taken as two separate pieces of legislation. Most of the sections in the Bill which deal with the taking of evidence or photographs [173] against people state that the information can be retained for four years. When the Offences Against the State Act was introduced it was supposed to be for a short period of time. Everything in this Bill is in conjunction with the Offences Against the State Act. Irrespective of the six, 12 or 18 hours of detention without questioning the suspect can be held under the other legislation without questioning.

Mr. M. Higgins: But not for the same crime.

Mr. Lanigan: I accept that but one can be charged under the Offences Against the State Act irrespective of what is in this Bill. If a Garda Superintendent is not satisfied that he has under the terms of this Bill the protection he feels the community needs or the information he needs all he has to do is to charge the person under the Offences Against the State Act. This Bill becomes a total nonentity then. Apart from the other constraints the Offences Against the State Act is not being overruled by this Bill or being replaced by it. The Bill is adding certain other powers which are not needed because of the Offences Against the State Act. If we were going to repeal the Offences Against the State Act there might be some teeth in the Bill before us but since we are not the Offences Against the State Act is an addition to this Bill which makes all the beautiful platitudes about protecting people a total nonsense.

The Bill does not do anything to tackle the drug oriented problems or anything to help the Garda Síochána to pursue their job in a meaningful way because of the constraints in it and the fact that the regulations have not been brought in. I do not think the Bill is going to do anything to help to combat crime. However, this is a welcome opportunity for us to discuss the problems we have in this society. On Committee Stage — basically this is a Committee Stage Bill — many Members on this side of the House will have a lot to say about the various sections which seem to us to be totally negative in their attitude and will not do the job which the public have perceived it was going to do for them.

[174] Mr. O'Leary: I should explain that I am not speaking from my usual place in the House because on this occasion I am certainly not speaking for the party of which I am a member. I have very fundamental disagreements with a lot of the concepts in this Bill. It is only proper that I should show the House that the difficulties I have with it are personal difficulties and that is why I chose to speak from this unusual position.

I should, first of all, explain for those Members of the House who might know that I am a lawyer, that this is not an area of practice for me at all. While I have represented people on criminal charges this is not an area in which I practice and, therefore, I do not claim any special expertise in this area or any special experience. Of course, I have the expertise to be able to interpret the law as we propose to enact it and, I hope, the expertise of the ordinary common man in being able to apply that knowledge and see how it will affect the community at large. I would not like my views to get an air of authority which people may feel they do not deserve. I am most disappointed that the Minister for Justice is not present. This is the single most important piece of legislation to come before this House. I recognise the commitment, importance and range of responsibilities which any Minister for Justice has to undertake but, having spent a good few weeks of my life preparing what I am going to say, I was entitled to look the Minister for Justice straight in the face and to say what I had to say because no matter how one reads the Seanad Official Report subsequently one cannot understand the depth of passion which people feel about this issue by reading the written record. The passion expressed by Senator Higgins earlier today will not be conveyed no matter how adequately the notetakers work to convey the proper impression of what took place. Similarly, the analysis which I hope to make of the Bill will not receive its proper recognition from the Minister who is the only person who can agree to amend or omit any section of this Bill. I consider it is unfortunate that the Minister is not here to hear what I have to say.

[175] I should like to place on record that a large portion of what I will be talking about will display a negative attitude towards the provisions of the Bill but it should not be taken as definite that I am against all the Bill. I am not. For example, the sections dealing with majority verdicts and with offences committed while on bail have not only my support but my enthusiastic approval. While I will deal with these matters at the end in a short way, much of my contribution will be confined towards that area with which I disagree.

I should like the House to consider the purpose of a review of the law in this area. I should also like the House to examine why now is considered an appropriate time in which to review the criminal law and in the reviewing of the criminal law what should be our objective. Just as love is the great commandment and the others are merely subsidiary, I think the great commandment in reviewing the law is to promote a more orderly and just society. Everything else is only subsidiary to that and is only a method of achieving that. The main purpose of the review of law is to promote a more orderly and just society. It is very doubtful whether any review of the law can bring about a reduction in the number of crimes committed. I will deal with that later.

The mere operation of the law will not reduce the number of crimes committed because the number of crimes must be put in the context of the general social and economic policies of the country. I will discuss in the course of the debate the question of the increase in the level of crime as disclosed by the various statistics, and point out a source where we can put the Irish problem in its true international context.

A basic principle is that a more orderly and just society will not automatically arrive from an increase in the number of convictions. It is erroneous to think that an increase in the number of convictions will automatically mean that we will have a more orderly and more just society. While the conviction of the wrong-doer is obviously in itself a deterrent, and in [176] respect of that particular individual a very powerful deterrent indeed, if such a conviction is achieved at too high a price then the conviction, rather than improve the situation, will contribute to a breakdown in law and order.

A conviction achieved by unacceptable means and methods will contribute to a breakdown in law and order for a number of reasons. It will alienate the criminal from the community by fostering a sense of grievance in that criminal. That sense of grievance, I submit, would be independent of whether the person is guilty or innocent of the offence. It will extent beyond that individual, in the event of a conviction by unacceptable methods, to the victim's friends and family. They, too, will be alienated from society.

We should not underestimate the capacity of people to ignore the unpleasant aspects of their own behaviour and to concentrate on the unpleasant aspects of the administration of justice. That should be quite clear from an examination of the way in which internment and suspect police methods in the North of Ireland have led to the alienation of otherwise law-abiding members of the community from the forces of law and order.

However, this alíenatíon of those on the fringes of criminal activity is not in my view the decisive argument against the policy of conviction at any price. A conviction achieved by unacceptable methods dehumanises those involved in that conviction, and that includes members of the court and members of the police involved in the investigation of that case. For example, the corruption involved in hiding from a court of justice the denial of rights to an accused reduces the moral authority and moral fibre of that member of the police force involved and leaves that member open to pressure from his colleagues to participate in an ever-widening circle of corrupt practices. I will take a single example from my personal knowledge. A police officer in seeking to convict somebody driving with an excess of alcohol in their blood — probably the most routine case that comes before a court and one on which I have represented people — very often [177] recites a form of events necessary to achieve a conviction, a form of events which did not occur, for example, that the defendant staggered as he got out of the car. One of the things you must show is that the defendant staggered. The officer who does that gives a hostage to his future activity. This apparently harmless exaggeration of what took place leads in time to a conspiracy of nods and winks between members of the police force which leads to a much more extreme example of manufactured evidence and disregard for people's constitutional rights.

It is of prime importance in reviewing this law that any convictions which are achieved in respect of the law we propose to enact are not achieved at the expense of reducing the self-esteem of the members of the Garda force in themselves, because that is the real corruption, and thereby setting the forces of law and order on a slippery slope towards totalitarianism. The promotion of a more orderly and just society means appropriate justice to each of the parties. An important element of any review of the law is to administer, update and improve the administration of justice to each of the parties. This means that those who are victims are entitled to whatever compensation the law permits for the trauma which they have undergone. The victims or the community are not entitled to personal vengeance against those who committed the crime, still less against those who are alleged to have done so. The victim is not a suitable arbitrator of the penalty which a person should suffer because as an interested party he or she lacks the objectivity necessary to so act. Those who commit crime are also entitled to justice. They are entitled to the examination of their case by an independent court. They are entitled to have their full rights under the law respected.

Constitutional rights are not nuisances which stand in the way of a conviction of those guilty of crimes but an essential safeguard in the process of determining who is or who is not guilty. We should be careful of the type of approach disclosed by Mr. Jack Marrinan who is General Secretary of the Garda Representative [178] Association. In a 1977 speech which was quoted with approval in the November 1983 number of the Garda Review he states:

The whole object of the trial should surely be to establish the truth and not merely the establishment of the technical “guilt” or technical “innocence” in accordance with a set of rules which are increasingly one sided as is the case now.

To consider the protections afforded to a suspected person under our law as a technicality is to misunderstand the whole basis of our judicial process. Very often a person will have committed an act which may in certain circumstances be criminal but that person may be innocent in law because of his or her state of mind. Many crimes require a special degree of knowledge. The fact that an act was committed does not give rise to an automatic conviction. That is an example of one such technicality. Such a differentiation is not a mere technicality but goes to the very heart of guilt or innocence, punishment or freedom, in the same way as the victims of crime are entitled to protection of their property and to whatever compensation the law has considered appropriate for them, but those victims are not entitled to be judges in their own matter.

The investigating authority, the Garda Síochána, are not suitable people to act as judges in a particular case. Similarly, their views on what the law should be relating to criminal offences should be taken with a grain of salt. Elsewhere in my speech I will detail the various recommendations made by members of the Garda recently concerning changes which they believe should be made in the criminal law. An examination of these recommendations will convince any objective person of the unsuitability of the members of that force for the task which is being entrusted to us as legislators.

The purpose of a review of the law is to have a more orderly and just society. It is not a morale boosting exercise for the Garda Síochána. A very good example of how the review of the law is not an exercise [179] in boosting the self-esteem of the Garda Síochána can be gleaned from the very unfortunate events which took place over the last 12 months when individual members of the Garda Síochána were humiliated by the removal of their uniforms by armed criminals. These outrageous events gave rise to many suggestions that the Garda Síochána had been humiliated in addition to the individual personal humiliation suffered by the unfortunate garda or gardaí. There was a suggestion in some quarters, not from the Garda Síochána, that these series of events showed the necessity of arming members of the police to ensure that these individual humiliations would not take place in the future and as a morale-boosting exercise for the Garda Síochána. While not taking from the individual humiliation which the members of the force suffered in these circumstances, the force, far from being humiliated by these actions, gained status in the community by reason of the courage and fortitude of their members. In the long run those who perpetrated these crimes will be or already have been brought to a justice they richly deserve, but by suffering at the hands of these armed criminals the Garda Síochána have shown themselves to be men of courage who because of their determination to remain unarmed are deserving of our respect in that instance.

The courage of gardaí in facing their armed opponents in a generally unarmed state may from time to time give rise to individual humiliations but will in the long run maintain a closer and better relationship between the Garda and the public, closer than any armed police force can possibly have. One can say truly with regard to the Garda Síochána and all the forces of the State who are fighting criminal elements that it is not those who inflict the most but those who suffer the most will in the end triumph. This is an example of where the Garda status in the community grew because they did not have draconian powers and because their response to individual outrages was so courageous.

What is of vital importance in the [180] review of the law in the criminal area is to resist the temptation to enact into law any proposal which will allow anti-social elements, whether of a political hue or an ordinary criminal disposition, to use the new law as the basis for a campaign of denigration of the institutions of this State. In that regard the legislation introduced must be in proportion to the needs of the community. In other words, the law must be a reaction to the scale of the problem which confronts the community — the real problem, not an exaggerated problem.

It is important that the problems confronting the community should not be exaggerated as this will give rise to a disproportionate legislative reaction. It is also important that any new element introduced in the law should be effective. It is against this background that the various legislative proposals in the Bill must be considered, and it is against this background I propose to discuss its merits.

Before going on to that task I should like to bring to the attention of the House that in the Garda News, which is one of the publications which the various Garda authorities courteously send us through the post, in recent months a series of articles has appeared which sought to prove that the level of crime in Ireland is low by international standards. I should like to recommend to those who are interested and who believe we have a high crime rate that they should read those two articles because they put in context the crime situation which we are trying to tackle. I do not intend to waste time by reviewing them here.

That is the purpose, in my belief, of a review of the law. It is not clear where the initiative for this review of the law began. It is true that the law has been under review by the Department of Justice under at least three successive Ministers for Justice. I believe from the information given by these Ministers for Justice from time to time that the existence of a power of detention and a limitation on the right of silence has been an integral part of the thinking of the promoters of this legislation within the Civil Service structure. It has not been an integral [181] part of the thinking of those involved in the political structures, nor indeed has it been an integral part until very recently of the thinking of the serving members of the Garda Síochána.

In the case of the Fine Gael and Labour Parties, their Programme for Government covering the years 1981 to 1986, that is the first one which formed the basis of the present period of co-operation between the parties, envisages the implementation of the Ó Briain report. I will come back later to how we have lived up to that promise. The Fine Gael policy document for the 1981 election, which Senators might remember was originally fought without a Coalition in mind, makes no reference to the introduction of detention. Fianna Fáil Party documents over the same period in so far as they are at my disposal do not specifically deal with this matter.

It would appear, therefore, that the almost unamimous view of the political parties has been to update the criminal legislation. That was made clear to the electorate, but this policy which has been expanded by additional policies, specifically a policy of detention giving the power of questioning to the police by implication, has never been put to the people by any political party in a general election. I recognise that any political party, in presenting a programme for a period of Government, can give only in outline the general direction of the policy which they intend to implement.

From time to time additional policy matters will be introduced to meet changing situations which arise during the course of the term of office. However, the introduction of the concept of detention goes far outside the changes which may be expected by political parties on a day to day basis. This criticism applies to both Government parties and to the Opposition party. Indeed, in the case of the Government parties the specific commitment to introduce the Ó Briain report meant in essence an undertaking not to introduce detention as a concept, as that concept was not recommended by the committee, even though it was recommended by the chairman in an appendix to that report.

[182] In the case of the Fine Gael Party of which I have the honour of being a member, the present Taoiseach. Deputy Garret FitzGerald, at the Ard-Fheis on the eve of the last general election, spoke about the need to reform criminal law and said that reform would include a provision enabling evidence to be given at a trial of questions put to an accused before a district justice or a quasi-judicial person such as a peace commissioner and the answers given or refused by the accused. I stand over that statement.

He also said that the measures would include a notification of alibi and dealing with the problem of the offences on bail. He further said in criticism of the Fianna Fáil Party who had introduced nothing in their short period of office then coming to an end that, in his first administration, it had been our intention to accompany the publication of this new legislation with proposals to ensure against any abuse of existing or additional powers of the Garda so that simultaneous publications of these matters was vital.

Acting Chairman (Séamus de Brún): I am sorry to interrupt, but I have been informed by the Minister of State that there is a meeting of all Ministers and Ministers of State at 5 p.m. Is it proposed to adjourn the House at 5 p.m.?

Mr. M. Higgins: Yes.

Mr. O'Leary: The position as put forward by the Leader of the House this morning was that we would meet until 5 p.m. and the speaker in possession would continue and conclude not later than 7 o'clock. I will certainly not complete by 5 p.m. and I may complete by 7 p.m.

Mr. M. Higgins: That is an accurate recollection of the business agreed.

Acting Chairman: I recall that was the arrangement this morning.

Mr. M. Higgins: The idea is that we would resume Second Stage on a day next week. I think that was a further implication of the Order of Business.

[183] Acting Chairman: The Minister wishes to go to a meeting of Ministers of State and Ministers.

Mr. O'Leary: The Minister will make up her own mind on that.

Acting Chairman: I am in the hands of the House.

Mr. O'Leary: This House, as I understand it, will sit until 7 p.m.

Acting Chairman: I am aware of that.

Mr. O'Leary: If I stop now I might not survive until next week and the remainder of my contribution might be lost.

Acting Chairman: I understand the agreement was made.

Mr. O'Leary: We have no guarantee that any of us will be here. The attitude of the Garda Síochána in 1977 as given by Mr. Jack Marrinan, General Secretary of the Representative Garda Association, in an address to the Dublin University Law Society, referred to the following matters as being the necessary tools to enable the Garda to do their work: first, the elimination of the straitjacket of the judges' rules; second, changes in the right of silence; and, third, notice concerning alibis. Nowhere in that address, as reprinted in the December 1983 Garda Review, in the context of the present Criminal Justice Bill did Mr. Marrinan refer to the need for detention. It is, of course, true that in later years the representatives of the Garda Síochána began to put great emphasis on the need for a period of detention and this now forms their central and most consistent request in recent times. I will review later the scope of that demand including the reaction of a Garda Commissioner to it.

For the reason outlined above I believe that the present Government, both the Fine Gael and Labour parties and the Fianna Fáil Party lack the moral authority to introduce that portion of the Bill which deals with detention for the purpose of Garda questioning. At no time has this matter been put to the people [184] either directly or indirectly. I do not believe this necessarily finishes the matter. It is obviously open to a Government to change their mind during their period of office and to develop new policies. It is a fundamental principle of representative democracy that Governments can expand upon their policy as they think fit. However, in the case of the development of a policy which has never been put to the people but is of tremendous importance to the welfare of the community, the Government, and indeed the Opposition who support them, are at least under an obligation to show clearly the reason for the change and its likely effect. No attempt has been made to examine the effects of the introduction of this period of detention either by examining the rate of conviction in other countries before or after its introduction or, alternatively, by examining the rate of conviction in this country in respect of crimes not presently covered by detention provisions as and compared to crimes covered by the revision of section 30 of The Offences Against the State Act.

It is not good enough for a Minister for Justice, no matter how highly thought of that Minister for Justice may be, to come into a House of the Oireachtas and say he wants to change the tradition built up over hundreds of years to remove the inviolability of individuals from arbitrary arrest and that he wants to allow police forces to arrest an individual on the merest suspicion of their involvement in some not so serious crime.

Mr. M. Higgins: Not even justifiable suspicion.

Mr. O'Leary: It is up to those who wish to introduce this change to discharge the responsibility of proving that its introduction will have a beneficial effect on conviction rates. It is not up to me to prove that it will not have either on the conviction rate or on the rate at which crime is committed. When this beneficial effect has been quantified, if there is a beneficial effect, then the resultant loss of liberty can be set in the balance against it and a decision reached wherein lies the [185] national interest. It is not good enough to expect Members of the Oireachtas to suspend their critical faculties mainly because of the high regard in which they hold either the Minister who is introducing the legislation or the Government of which he is a member.

I have read carefully the Minister's Second Stage speech and it does not adequately make the case, or even begin to make the case, for the introduction of many of these revolutionary changes into our criminal law. Why was a White Paper not issued concerning this matter? Why was it that the first time the matter was discussed by the Fine Gael Parliamentary Party, with a knowledge of what was in that rather than a hint, was after publication of the Bill? That is not good enough. That is not the way to change the law which has been built up over the centuries.

I should like to refer to the question of the commitment given by this Government to introduce the Ó Briain report and contrast it with what is actually in this Bill. I have completed a textual analysis of the Ó Briain report. It is true to say that the Bill itself in some sections deals with the same area of activity as the Ó Briain report but that is all it does. We are not getting the Ó Briain report. What we are getting is the hard pieces of the Ó Briain report and the easy pieces, the pieces that are favourable to civil liberty, are omitted. For instance, paragraph 47 recommended the creation of the post of custodial guardians. That is not in the Bill. Paragraph 48 deals with the duties of the custodial guardian which of course are not in the Bill. The recommendation in paragraph 49 that detention under The Offences Against the State Act should, in the circumstances of a new Bill, be under the control of an inspector is not brought in under this Bill. There are other matters which may well be brought in, matters like the station log book can be brought in by regulation, and I earnestly hope that the Minister will do that. In section 55 it is recommended that a reasonable time should be allowed for a solicitor to arrive before any questioning should take place. That is not in the Bill. [186] In paragraph 58 it is recommended that the length of questioning of any detainee should not at a stretch be more than four hours. That is not in the Bill. Paragraph 59 deals with the question of a complaints tribunal which is not in the Bill. The question of certain questioning to establish whether a person has been maltreated, dealt with in paragraph 60, is not in this Bill. The question of compensation, in paragraph 61, is not in this Bill.

There are a number of other things which are not yet in the Bill and which the Minister may introduce by regulation — I would recommend him to do so — but all the items to which I refer now are items that should be in the substantive legislation because the regulations could not be wide enough to do these essential things.

Even the recommendation of the chairman, which is included as an appendix to the report and which does not have the status of being part of the Ó Briain report and is not part of the policy of the party that I represent, and is not a minority report — it includes a recommendation that the Offences Against the State Act should simultaneously be amended to reduce the length of detention — is not in the Bill. So the Ó Briain report is not being implemented. I would not be happy if the whole lot was implemented, chairman's appendix and all, but if it was I would be a lot happier than I am now.

I would like to turn to something to which the Minister referred and which was referred to earlier today, section 30 of the Offences Against the State Act. I must warn the Minister that he is being misled: he is allowing himself to be misled in this regard. Before considering the question of detention as a method of investigating crime I would like to examine the present climate concerning section 30 of the Offences Against the State Act, 1939. This, for the benefit of Members, is the section which permits a member of the Garda Síochána to arrest and detain a person suspected of committing certain categories of offences. It is the only basis for the arrest and detention of suspected persons until this Bill is enacted. The Minister in the course of his Second Stage speech, at column 1163, [187] it was already quoted today by Senator Higgins, said:

Indeed, let me once again point out in this connection that section 30 of the Offences Against the State Act is not emergency legislation but it is part of the permanent law of the land.

This quotation carries on a theme which the Minister has used over a substantial period and which is very misleading indeed. In terms of the literal truth, what the Minister said is of course correct, but it failed to tell the complete truth, and the literal truth is not always the complete truth. It leaves the undiscriminating and the uninformed listeners with an incorrect impression. The impression surely being created by that statement is that actions of the Garda Síochána under section 30 of the Offences Against the State Act are part of the operation of the normal law of the land, and not emergency legislation. That is what it means to the average person listening.

Now to examine the operation of section 30 of the Offences Against the State Act one must examine the section itself and recognise that there are two categories of offences which are the subject of the powers of arrest and detention. First, there are offences under any section or subsection of the Act. These offences, some of which I have listed, are indeed a permanent feature of our legislation, and breaking the law under any of these headings at any time will give rise to the possibility of arrest and detention. In that limited way the operation of the section is not emergency legislation in respect of these offences.

These offences include: usurping the functions of Government; using arms to obstruct the Government; obstructing the President; interference with the military or other employees of the State; printing of certain incriminating treasonable or seditious documents; distributing foreign newspapers containing seditious or other unlawful material. Sections 12 to 14 are concerned with the printing of unlawful documents. Section 15 deals with unauthorised military activities. Section 16 and sections 18 to 25 deal with [188] unlawful organisations. Section 17 deals with administering unlawful oaths and sections 26 onwards deal with various miscellaneous matters including certain public meetings within the vicinity of the Oireachtas — I think a law honoured more in the breach than the observance.

All these items are part of the permanent law of the land and action taken by the Garda Síochána in arresting and detaining suspects under any of these sections is not utilisation of emergency legislation but utilisation of ordinary legislation. It is interesting to note, however, that under all the headings which I have already listed the total number of people charged in the year 1983 was precisely none, according to the report of crime for that year. I cannot say whether people were arrested and detained, but nobody was charged and presumably nobody was arrested under these headings because they are not sections that are used.

The other category of offences represents the overwhelming bulk of arrests under section 30. Indeed if one is to believe the crime report for 1983 it would appear to be 100 per cent of those charged under this section. They fall within the provisions of section 30 only because of the provisions of Part V of the Offences Against the State Act, 1939. What is Part V? Section 35 (2) of the Act provides:

If and whenever and so often as the Government is satisfied that the ordinary Courts are inadequate to secure the effective administration of justice and the preservation of public peace and order, and that it is necessary that this part of the Act should come into force, the Government may make and publish a Proclamation declaring that the Government be satisfied as aforesaid, and ordering that this part of the Act should come into force.

Further, section 36 provides that on the making of a previous order or determination by the Government they may make an order of the list of scheduled offences if the conditions outlined in section 35 (2) exist — in other words if they are satisfied that the ordinary courts are not sufficient to deal with it. It is under this section that [189] the Government made an order, namely the Offences Against the State (Scheduled Offences) Order, 1972 which lists offences under the following Acts as being scheduled offences: the Malicious Damages Act, 1861, the Explosive Substances Act, 1883, the Firearms Acts, 1925 to 1971, the Offences Against the State Act, 1939 and section 7 of the Protection of Property Act, 1875 — that is not the correct name as I was unable to find the correct name.

You will see therefore that section 30 of the Offences Against the State Act is, of course, a permanent part of the law of the land but its extension to an area in which it is now exclusively used, while based on provisions of an Act which forms part of the permanent law of the land, can only come into operation in an emergency situation. I can only believe with regard to the attitude adopted by the Minister and his portrayal of section 30 of the Offences Against the State Act as not being emergency legislation that he has inadequately understood or been inadequately briefed with regard to the total truth. I am sure any objective outsider, and the Minister himself, will agree that while his statement in the Seanad at column 1163, was literally true it did not convey the whole truth to the lay listener.

Whatever about the rate of success of a police operation using detention, which I will consider elsewhere, it is appropriate and, indeed, necessary to consider what experience we have had here with regard to detention by members of the Garda Síochána and to consider whether lessons can be learned from these experiences.

Before getting involved in this area, which is one of extreme delicacy, I do so with no sense of being vindictive either against present or past members of the Garda force but as a contribution towards the very important decisions which will arise in respect of section 4 of the Bill.

The growth of detention under section 30 of the Offences Against the State Act began with the heightening of tension in Northern Ireland. The following is the number of people arrested under the Offences Against the State Act for each of the years 1972 to 1982 — the source is [190] a ministerial reply to a question — 1972, 229; 1973, 271; 1974, 602; 1975, 607; 1976, 1,115; 1977, 1,144; 1978; 912; 1979, 1,431; 1980 1,840; 1981, 2,303 and 1982, 2,308.

It will be seen that there has been a steady growth from 229 to 2,308 in those arrested under section 30 and held for questioning. Whether this increased number of detentions has resulted in an increased number of convictions is a matter which I will consider elsewhere. With the growth in the number of people arrested from 1974 onwards, the treatment of such people became a matter of public controversy. Frequent allegations were made of ill-treatment of suspects in detention. A number of these allegations were made by Republicans and their sympathisers who formed, at least at that time, a substantial portion of those being arrested under the relevant legislation.

These allegations must be considered against this Republican background. The mere fact the allegations were being made by a group of people who had a vested interest in inventing allegations of this type or of exaggerating the significance of certain actions by members of the Garda Siochána is no guarantee that the actual events described did not occur.

The existence of a “heavy gang” was being alleged in 1976 and into 1977. The Irish Times published a series of articles in February 1977. The Minister for Justice at the time denied both the existence of the “heavy gang” or that detainees were being abused in any way. In order to set the scene for Members of this House with regard to the atmosphere of that time it is necessary and I quote briefly — I am aware of the rules of the House — from a book recently published, which I would recommend to fellow Senators, Round Up The Usual Suspects, and the quotations will be found on pages 100 to 103. In the circumstances, the extract is important. Indeed, it is vital to the argument I am making. The quotation is as follows:

Throughout 1975 and 1976 there began to emerge allegations that suspects were being beaten in garda stations. The beatings allegedly occurred [191] during section 30 detentions and were aimed at producing statements from suspects. The allegations were many and varied but were remarkably consistent. They involved lengthy sessions of interrogation during which suspects were made to stand for long periods, were kept without sleep, were interrogated through the night, were pushed from detective to detective, were punched again and again in the same area of the body, were told that they would be held for 48 hours and then rearrested and held for another 48 and that the treatment would continue. Some times the allegations were of terrorising of suspects by such methods, by the complete physical and psychological domination of the suspect by the detectives. There were a smaller number of cases in which the detectives allegedly behaved with a savagery beyond that detailed in the majority of allegations. These allegations involve abuse of the genitals, physical beatings without care to conceal bruises and in at least one case the use of a gun to threaten a suspect.

The book goes on to deal with an individual allegation to which I will not give credence by putting it on the record of the House, but anyone who chooses to examine the book will see the individual allegation. I do not know anything else about it. The book very fairly goes on to put the thing in context, it is very important that the book does this.

The first thing that must be said is that while Republicans proudly boast of their military activities few are ever guilty of crimes, according to themselves and their organisations. Everyone charged is innocent and everyone convicted was framed.

It does put a certain amount of balance in the situation.

The author went on to say:

A number of gardaí have confirmed that a heavy gang existed within the Force during that period. Conscientious gardaí believe that this element harmed the Force in that the widespread [192] knowledge among republicans of the heavy gang's existence lent credence to later suprious allegations of beatings and increased incidence of such allegations.

It goes on to describe the case of a Garda Ó Fiachain who gave evidence of hearing a scream when he was attending to his duties as a member of the Technical Bureau. The author continued:

According to garda he had spoke to, Ó Fiachain was, in the vernacular, sent to Coventry after testifying. He was regarded as a garda who had let the side down. To be treated in that way by one's peers for merely telling the truth is humiliating and upsetting. In such circumstances a garda thinks twice before admitting even to himself that he has heard a scream. The choice is between following the course of truth and duty — and siding against your colleagues and siding with people who, guilty or not, you may find distasteful — or keeping silent.

We must consider the question of whether the “heavy gang” did operate under this emergency legislation because what happened under these detention provisions of section 30 may well happen again in future under any new legislation we enact. There are two possibilities with regard to the existence of the “heavy gang” and the oppressive forms of interrogation alleged during that period, that is, either the allegations are incorrect or correct, and I am expressing no view.

If the allegations are correct obviously the Minister of the day failed in his responsibility to do justice to those who richly deserved it. As far as I am aware no garda was disciplined concerning these alleged activities and the Minister's public posture seems, in fairness to him, to concur entirely with what he did privately.

The other possibility is that there was no truth whatsoever in the allegations that were being made. However, what is an undeniable fact is that a substantial number of members of the general public believe these abuses took place and a substantial number of Members of this House believe it too. Knowing that to be the case the Minister of the day, and [193] subsequent Ministers, had a responsibility to allay public unease by the holding of some kind of inquiry of a nature which would satisfy the public of the untruth of these allegations. No Minister ordered such an investigation. There was no public vindication of the Garda force and the general belief remains that these illegal activities did occur. To repeat myself, even if these illegal activities did not occur politicians of all parties have failed in their duties to vindicate the members of the Garda and by so doing have allowed a climate of opinion to exist whereby public belief that these events took place. The public further believe that those involved were not brought to justice.

In the event of the enactment of the sections of the Bill dealing with detention, it is obviously certain that sooner or later allegations will be made concerning the mistreatment of people held under the provisions of the Bill which we propose to enact. Somebody is going to allege it. On the basis of our past performance as politicians — that is members of Fianna Fáil, Fine Gael and the Labour Party — we will not pursue these allegations and thereby bring to justice those who are responsible if the allegations are correct, nor will we clear the name of the Garda Síochána if the allegations are not correct. On the basis of past experience, the existence of any power of detention, particularly where these powers of detention involve a large number of people, is a development for which the Garda, Irish politicians and the Irish people are not ready. We do not appear to have the objectivity or the faculty of self-criticism which are necessary prerequisites of the extension of the powers in this area.

I do not think I could conclude this section of my speech without referring to the reported activities of the Garda Síochána in the Phoenix Park on the occasion of the visit of President Reagan. The allegations which have been made are of the most serious kind, that people were effectively interned, that they were on a trivial charge and the power which exists for an entirely different reason under the District Court rules — the [194] power of discretion in granting bail — was not used by the member of the police force whose responsibility it was to consider this matter.

Let nobody suggest that there was no other way of solving the problem. I do not know how important it was to get these people out of the Phoenix Park but let us assume that it was. An injunction could have been got from the High Court at a moment's notice because they were on private property. They were doing something which I am sure was not allowed in the park. If they failed to honour that injunction, then they could have been jailed. That is the proper way to go about these things. You give people the opportunity; you operate the law as it should be operated.

I do not intend to quote a further extract from Round Up The Usual Suspects, but I think it would be interesting for Members of the Oireachtas to examine the way it was described, that the number of people detained under the Offences Against the State Act in respect of the Sallins mail train robbery grew from a list of three or four names into a list of 17. Ultimately, it grew to considerably more than that; between 34 and 40 people were ultimately detained and questioned for the Sallins mail train robbery. It would appear that section 30 was used for a fishing expedition, that the Garda, presumably with certain knowledge, went on a fishing expedition and pulled in as many as they thought were in any way associated with those they suspected. That is a very bad precedent in a police force which would be expected to operate the powers of detention contained in section 4 of this Bill if it is enacted.

In the event of the enactment of the detention provisions of this legislation we must be realistic. We live in the real world. What will happen if allegations are made concerning a member of the Garda Síochána? What will actually happen on the ground? Leaving aside for the moment the question of who will investigate the complaint, the Minister no doubt will have additional information in that regard for us, whether that person is a member of the Garda Síochána or [195] some outside independent authority, ultimately that investigating authority will confront not only the person against whom the allegation is made but his colleagues who may be able to help with regard to evidence as to what happened on the occasion in question. Whoever is doing the investigation will speak to the person against whom the allegation is made and will speak to other members of the force who might be able to help.

Let us suppose, for example, that a person has been detained under the provisions of section 4 of this Bill in connection with some theft and alleges that one of the investigating gardaí used physical force for the purpose of extracting a confession. The investigating authority would obviously interview the garda against whom the allegation is made and would interview such colleagues as would be helpful in establishing the truth or otherwise of the allegation.

Consider, however, the difficulty of a colleague of the garda against whom the allegation is made. It is likely that this allegation when investigated will refer to an incident which will have occurred some time previously, probably at least 12 months previously, so as to allow the completion of the criminal proceedings if any, in respect of which the person detained was being questioned. Here we will have a garda faced with the following dilemma. If he tells the truth and says his colleague did, in fact, assault the prisoner, then that colleague who in all other respects might be an excellent member of the Garda Síochána and a very fine family man, will be disciplined severely and may lose his position. The employment prospects of a dismissed member of the Garda force are not very bright. Balanced against this will be the allegation made by some young scoundrel who has caused considerable trouble to the members of the force over the years and has, in fact, been convicted of only a fraction of the crimes which he has committed, not a very worthy recipient of somebody's charity. In other words, what in “My Fair Lady” was considered a “member of the undeserving poor” rather than the deserving poor.

[196] In the event of the injuries suffered by the assaulted person being of a serious nature I hope that each member of the Garda Síochána would do his duty. But what about the situation where the injuries involved were minor and consisted mostly of terrifying the criminal with only a modest amount of physical violence? What do you believe that the garda will tell the investigating officer? I have no doubt that a substantial number of ordinary gardaí in that position would not disclose the full truth to an investigating officer without the existence of a fool-proof method of checking exactly what went on in each detention case. The members of the Garda Síochána are being put in a position where allegations can be made against them in respect of abuses which did not occur on the one hand, and in respect of cases where abuses did occur there is no possibility that justice will be done except in the most serious of cases because of the adverse consequences of a successful investigation in any such case. The effect on the career of a member of the Garda Síochána of a finding by an investigating officer that a suspect was ill-treated will be so out of proportion to the harm that will have been done to the suspect in the distant past that there is no possibility of the truth being arrived at except in cases of the most serious abuse.

I am now going to consider Garda opinion on the new Criminal Justice Bill and the changes which we should have in the law. I will be referring to Mr. Jack Marrinan, General Secretary of the Garda Representative Association and Sergeant John O'Brien, a frequent contributor to Garda publications, who is a former member of the Central Executive Committee of the Garda Representative Association. I will be referring to the views of Mr. Patrick McLaughlin, formerly Garda Commissioner, to Mr. Frank Mullen, President of the Garda Representative Association and to Mr. P.J. Rogan, General Secretary of the Association of Garda Sergeants and Inspectors. They will form the raw material from which I hope to give the House an impression of what the Garda believe are the [197] powers they should have and draw certain conclusions from that.

As already mentioned, in 1977 Mr. Jack Marrinan did not appear to mention the question of arrest and detention in his speech the source of which I have already given. A curious silence seemed to exist concerning the necessity for detention and the period of detention until the publication of the Bill. One very interesting recommendation and a very interesting suggestion by a member of the Garda force should be examined by this House as a possible solution to the dilemma in which we find ourselves. The Irish Jurist is a specialist publication and it deals with the state of law as it affects criminal matters and commercial matters and generally it is a respected organ of Irish jurisprudence. It publishes from time to time articles written and sometimes reproduced from lectures elsewhere. Volume XVI new series 1981 of The Irish Jurist gives an article written by Patrick McLaughlin who is described as the Commissioner of the Garda Síochána and was so at that time, and it is headed “Legal Constraints in Criminal Investigation”. Commissioner McLaughlin goes through the arguments which have already been presented by the Minister. He indicates the area of difficulties for the members of the Garda Síochána. It is very difficult to disagree with the factual recitation of events that he puts forward, whatever about his suggested remedies. It is interesting to see what he does about this central need for a period of detention. It shows the way in which we are being panicked in this regard by the vociferous nature of the representations which are being made to us. At page 224 he deals with the question of detention and he says, not unreasonably:

Every criminal lawyer knows that even strenuous and at times severe cross-examination often fails to extract the truth, despite the advantage of having the person being questioned in the witness-box on oath and compelled to answer. Major sworn inquiries, like the Stardust Inquiry and the Bantry Bay Inquiry, where all the witness are compelled to answer on oath and are [198] subjected to intense cross-examination, have great difficulty likewise in establishing the truth. Yet garda investigators dealing with cunning, hardened professional criminals, are somehow expected to establish the truth, by first telling the parties concerned that they are not obliged to answer any questions or say anything, and then asking straight, simple questions and recording the answers, if any, given to them. Is it realistic to expect this of them? Why should a suspect not be subject to the same questioning and cross-examination as any witness is in court, not necessarily by the gardaí — not necessarily at a garda station, if someone can suggest a more feasible way of doing it — perhaps at some special forum, presided over by an independent person, where all questions and answers or lack of answers are recorded and certified as correct by him?

I will wear that. It is a very good suggestion. Interestingly enough, if you go back to what I said earlier it conforms very closely indeed to what the Taoiseach said in October 1982, because he said that we would introduce a provision enabling evidence to be given at trial of questions put to the accused before a district justice or quasi-jucicial person such as a peace commissioner and the answers given or refused by the accused.

The Taoiseach says one thing and the Commissioner of the Garda Síochána agrees with him and says almost identically the same thing. Why then are we being presented with something which is not along those lines but specifically allows the questioning to be done by members of the Garda Síochána?

On the publication of the Bill the Garda Review says in its editorial of November 1983:

The period of detention envisaged in the Bill is not as long as we believe to be necessary.

That was an editorial comment.

Sergeant John O'Brien, whose qualification I have given in the November [199] 1983 edition of the Garda Review states as follows:

From experience a period of forty eight hours will be necessary and in some exceptional cases perhaps longer.

In April 1974 the same Sergeant O'Brien is again reported in the Garda News of that month, which is a different publication, as saying:

The gardaí need the power to detain suspects for a reasonable period.

Secondly he says:

The power to question meaningfully suspects.

He further says:

Two periods of six hours would be completely inadequate to allow proper and diligent investigation of any major crime.

Shades of things to come. We are not finished yet. Six and six will not be enough. We will need 12 and 12, and 24 and 24. It appears that over the last few years there has grown within the Garda Síochána a view that a period of detention and ability to question suspects is an essential part of their investigative purpose. It also appears from the quotations which I have given and also from the general tone of their other public statements that the period of detention proposed in the Bill is inadequate in the view of the members of the Garda Síochána.

This Bill deals with the powers of search. In the Garda Review editorial of November 1983 the following statement is made:

We are very disappointed that the Bill does not propose to provide greater powers to search persons, vehicles, houses, caravans and lands for property which is the subject of a crime.

It is further stated:

We need authority to seize a motor vehicle or implements suspected of having been used in a serious crime so that they can be tested forensically.

[200] It further says:

For a long time the Garda have been faced with the absence of a clear power to search for evidence.

In the same month Sergeant O'Brien says in the Garda Review:

There is no warrant in this Bill which could be used to search for evidence of a criminal offence. That is a serious defect.

In the Garda Review of April 1984 Jack Marrinan said in a report on the discussions on the Criminal Justice Bill which took place at the Garda Representative Association Conference:

One of the defects in the Bill is that there is not enough power to search for evidence.

Also the subject of Garda comment have been the Judges Rules and constitutional safeguards. At page 225 of the Irish Jurist already referred to, Superintendent McLaughlin said:

Excluding statements and admissions for technical reasons, or because it is alleged that the gardaí have omitted something or erred in some procedural way, is an anachronism in this day and age.

Sergeant John O'Brien said in the Garda Review of November 1983:

It has long been represented by Garda spokesman that it is unrealistic to expect a suspected person to respond to questioning if at first it is necessary to inform whether he is not required to say anything unless he wishes to do so. The Bill does not recognise the essential evidence gathering nature of the time which the suspect is being detained. If it did the right of the accused person to silence would have been waived, the legal caution modified, and the judges rule restructed.

There is a wide proposal indeed. The right to silence would have been waived, the legal caution modified and the judges rule restructured. In the 1977 speech already referred to Mr. Marrinan proposed [201] that where an investigating garda did not in a particular case scrupulously observe all the procedural requirements in relation to the rights of the accused, a court should proceed to establish as a matter of fact whether the accused was guilty or innocent of the crime with which he was charged rather than throw out the case. He said the whole object of the trial should be to establish the truth and not merely the establishment of the technical guilt or technical innocence in accordance with a set of rules which are increasingly one sided, as is the case now.

In recent times other changes have been proposed by the Garda Siochána. Sergeant O'Brien in the Garda Review of November 1983 proposed that section 8 of the Criminal Law Act, 1976, should be amended to enable gardaí to use reasonable force to apprehend motor vehicles. The same writer criticised the fact that admissions under sections 15 and 16 of the Bill are not capable of being admitted as evidence against the person or his spouse. Mr. Marrinan said in 1977 that it should not be an offence to refuse to answer questions or to give explanations but that adverse inferences could be drawn from silence on relevant issues.

Sergeant O'Brien writing in the Garda Review said that a person should be required to answer questions under penalty of law. An interesting aside on attitudes to discipline is disclosed in a further quotation from Sergeant O'Brien:

On that score it has been said that the Garda Siochána (Discipline) Regulations 1971 are long overdue for review but there is little in this Bill which could be considered an inducement.

The powerful and influential voice of Jack Marrinan said in the December 1983 Garda Review that the proposal that gardaí interviewing of detained people may have to be taped could create endless practical difficulties. That is the thin end of the wedge. They will never agree to it. It is not that they are against it. It is just that it will give rise to practical difficulties. Later he reports that the Garda Representative Association at their [202] conference were of the view that they would be inclined to oppose as impractical the taping of interviews — not that they are against it, but that it is just impractical.

Also reported from the same conference is the view that the Garda Representative Association were against delay in the implementation of certain sections of the Bill, pending the completion and agreement of the complaint procedures. Having set up the situation where they will get the powers, and having met with the resistance from the Minister that he will not allow the powers to come into force until such time as certain procedures are agreed, the clear intention of the Garda Representative Association is that they would be against a delay in the implementation of certain sections of the Bill pending the completion and agreement of the procedure. That is the point of view of a powerful political organisation in this country, which the Garda force are.

The review which I have given there of the attitudes of the Garda Siochána as disclosed in articles which appeared in the Garda Review, the Garda News and the outside lecture given by Commissioner McLaughlin is, in my view, a frightening view of the state of mind of the members of the Garda Siochána in their attitude to the review of the law. It would appear from a review of these publications that the Garda, by and large, want the following: (1) A period of detention far in excess of the six hours plus six hours proposed in the Bill; (2) power to search persons, vehicles, houses, caravans, lands and property which are the subject of a crime; (3) greater authority to search a motor vehicle for implements suspected of being involved in a crime; (4) a general power for the Garda to search for evidence anywhere or anytime, even evidence that a crime has been committed — I am not talking about evidence of a crime which is under investigation, but evidence that a crime has been committed; (5) they want the power to stop, by force if necessary, motor vehicles suspected of being taken without the consent of the owners; (6) the unspecified modification of the Judges Rules certainly [203] to eliminate any need for any caution; (7) the admission of statements made pursuant to sections 15 and 16 of the Bill before us, the admission of these statements as evidence of wrong doing by the person giving the statement or his or her spouse; (8) the amendment of the right to silence, probably to what was originally suggested in the Bill which went to the other House. There would be a section that would want more than that.

In addition to the above eight changes it would appear that the Garda consider that discipline regulations should be changed only in a situation where an inducement had been offered to the force. Further, they believe that all sections of the present Bill should be brought into operation prior to the agreement on complaints procedure for the Garda Siochána. What chance has a complaints procedure because, when the Minister introduces the powers, he has no power to suspend them? They are in or they are out. Once they are in, they remain.

In the consideration of these extracts from the Garda publications which I was very kindly provided with free of charge — at someone's expense, not mine — due regard has been paid to contrary opinions where they were expressed. It is just that I could not find any. I could on the question of the amendment of the right to silence. Jack Marrinan's view on that was considerably less virulent than other views. In the cases quoted contrary opinions were not obvious. The point of view being put forward appeared to have editorial approval because at no stage were these views counterbalanced by views put forward by other members of the force who held a different view to examine the publications over a period of 12 months. I completed my examination today. I got them from the Library. I hope this review of what measures the Garda Síochána wish to see introduced will convince the Members of this House that the members of the force in general and those particularly in a position to have their viewpoint published are not competent to advise the general public and the legislators with regard to reform [204] of the criminal law. As I have stated elsewhere, members of the Garda force are too near the problems, too personally involved on a day to day basis. They must of necessity lack the objectivity with which to tackle these problems. In persuading this House to give additional powers to the members of the Garda Siochána the Minister will clearly have looked beyond members of the force to get advice with regard to the overall effect of any change.

I want to introduce two other brief quotations from members of the Garda Siochána to indicate and illustrate additional points which I wish to make. Mr. Frank Mullen, President of the Garda Representative Association, at the annual conference of his association as reported in the Garda News, May, 1984 said:

It never ceases to amaze me and indeed to amaze many of my colleagues throughout the force how easily politicians can support the introduction of new legislation to deal with road traffic offences, licensing offences and such like and how quickly it can be processed through the various stages but when it comes to the serious business of introducing legislation to deal with the ruthless criminals that I have referred to, they do not have the courage to support such legislation. The result is that we have a watered down version of the original Bill as proposed and this will not enhance our ability to cope with the crime situation in the way we had hoped.

The second quotation is from Mr. P. J. Rogan, General Secretary of the Association of Garda Sergeants and Inspectors, also reported in the May 1984 Garda News where he said:

...what started out as a reasonable though imperfect piece of legislation designed to give us a better chance of tackling the crime rate now appears so tied up in red tape as to make it unworkable.

Herein lies the essential position of the members of the Garda Siochána with regard to this or any other legislation [205] which might go through the House. They cannot admit that the legislation will be effective because if they do their performance can be judged.

Any Member of this House who has been a member of a local authority — I and many of my fellow Senators have — will realise that there are certain categories of people whose demands literally can never be satisfied. A fire chief will never admit to being satisfied either with the number of men at his disposal or the range of his equipment because by so admitting he leaves himself open to criticism in the event of any disaster. He never has enough. Medical personnel can never admit to having an adequate supply of manpower and facilities — they are always short of something — as to do so is to remove an essential safety valve from them in the event of a public controversy. In precisely the same way, members of the Garda Siochána have a vested interest in maintaining their continual dissatisfaction with the powers and facilities at their disposal. This gives them a ready explanation in the event of crime continuing to escalate and detection rates continuing to drop. They cannot say they are satisfied. If we passed the Bill as it was introduced they would not be satisfied. The markers were already down before the changes were made. They were not satisfied for a number of reasons: Judges' Rules, because six hours was too short and so on. If we passed the Bill as introduced they would not be satisfied because if they said they were satisfied next year you could ask “Why is the detection rate not down?”

You will notice that people who deal with the emotions, like fire brigade men, medical personnel and so on have great political clout. They can always say that people will burn to death or people will die in hospital and that gives them great political clout and allwos them to expand their facilities in an unstructured way. The Garda also have great political clout.

It is not without significance that in discussing the tone and tenor of my remarks today many of my friends warned me that there would be adverse consequences if I said the things I indicated to them I was going to say and have [206] said about the Garda Síochána. I am not saying it is right but that is what they believed. That is the view of the Garda Síochána in the community — it is dangerous to be against them, you will pay if you are against them. I am not suggesting it is right. I do not believe it, but that is what many of my friends think and they are reasonably average, middle of the road, intelligent people.

I come to the essential core of the problem which is presented to us and that is the need for detention. I should like to consider the justification which has been put forward for detention and presented by the Minister in this House and the arguments used by him and by other supporters of detention both inside and outside the Houses of the Oireachtas. I am doing this against the background of the conclusion which I arrived at, that the responsibility rested with the people who were proposing the change to convince those who like myself are against it that they are correct. The members of the Garda Síochána have over the last few years felt some pressure in respect of the manner in which they were carrying out their duties with an increased crime rate, even though it is low by international standards.

It is natural that politicians, representing members of the community, should articulate at least some of the concern of the public with regard to the outbreak of lawlessness. Before going on, I should say that increasing crime rates should be also put against the context of an increase in population. The members of the Garda Síochána felt that these critical statements were either a direct or implied criticism of the manner in which they were carrying out their duties. In that respect they were correct. There is witin the community a very substantial if not majority viewpoint that the Garda Síochána are failing in their task and are contributing to the escalation of crime. In some respects, I agree with that criticism, and I will indicate later why I agree with it, but we should not underestimate the independent nature of the phenomenon of the growth in crime that is independent of the Garda Síochána or independent of the laws under which they operate. There [207] are a number of special circumstances in Ireland which have given rise to increased lawlessness and it is important that we should give proper recognition to these factors which are external to the Garda Síochána.

First, there is the increasing percentage of the population made up of people under 25. It is an indisputable fact that a substantial majority of the violent crimes in society are committed by people in younger age groups. Therefore, it is to be expected that in the event of the numbers of young people increasing as a percentage of the population then the number of crimes being committed will also increase. We should not underestimate the significance of the population bulge of young people under 25 and particularly people in the 15 to 25 age bracket.

The second point is increased mobility. The most significant factor in the increase of crime as compared with when our grandfathers were alive is the increased mobility of the population, and of young people in particular. Obviously in a society confined to walking or cycling potential troublemakers were confined to their own districts where the chances of detection were considerably greater. As a result of this lack of mobility the incidence of crime undoubtedly would be less if we were a less mobile society. As our society has become increasingly mobile our crime rate has escalated.

The third factor, which is external to the members of the Garda Síochána, is increased materialism. The decline of religious practice and the increase in materialism mean that younger people who are in particular affected by the trend are not subject to the same external restraints as their ancestors were. The decline in the practice of religion in urban society in Ireland is an accelerating trend and will of itself mean a growth in the number of offences being committed.

The fourth external reason is political instability. The spread of the international terrorist movement to Ireland through the revival here of the spurious IRA has introduced a substantial number of young people to the use of weapons. [208] The result of this familiarity has made these political activists and those with whom they come into contact more willing to use weapons for the advancement of their material prosperity as well as the advancement of their political aims.

These four factors — the increased number of young people, increased mobility, increased materialism and political instability — have contributed to the growth of offences committed in Ireland. It is therefore natural that this escalating crime situation has put pressure on the members of the Garda Síochána. To some extent that pressure is not fair. Because of the criticisms made or implied by the members of the general public and to the internal self-criticism and their own self-esteem, the Garda have also felt a need to respond.

There appear to have been two kinds of pressures acting on the members of the Garda Síochána requesting additional powers: first, the criticism by the members of the public of their lack of success and, second, a reduction in their own self-esteem as a result of ever-increasing numbers of crimes and an ever-reducing rate of detection. It is my contention that it is the second reason that is, the reduction of self-esteem, that is the real motivating factor, as there is little or no evidence in my experience that the public is aware or even particularly concerned about the detection of crime. As I have said, there is very severe criticism of members of the Garda by the general public, including politicans, but by and large it is centred on a different area, not on the detection of crime. It is not the rate of the detection of crime which is the source of the criticism but the rate at which crime is committed. Some members of the Garda Síochána might respond that if increased detection rates were brought about the level of crime would be reduced. Obviously, in pure statistical terms this is correct, but the realistic possibility of a rate of increase in detection would have to be so dramatic that it is unlikely to occur no matter what additional powers are given to members of the force.

The attempted solution to satisfying the public by increasing the detection rate [209] would appear to be going about the matter in the least efficient and incorrect way. What the public demand of the Garda Síochána is not that they should detect a greater percentage of criminals who commit crime but that they should prevent the crimes taking place in the first instance. That is what they want.

Herein lies my greatest criticism of the members of the force. As far as most members of the public are concerned the solution to a crime is an interesting foot-note to the fact that the crime took place. Most people are more concerned with the fact that they were hit over the head than whether the perpetrator of the crime is ever caught. Similarly, they are much more interested in the fact that their house was burgled, as mine was, than whether the goods were ever recovered or whether the burglar was caught. Where the Garda Síochána have gone seriously wrong is that they have retreated from being a force which is concerned with the prevention of crime to a force which is concerned almost exclusively with the solving of crimes once they have been committed. We want the guards to stop the crimes being committed. As a result of the alienation of the members of the Garda force from the community the force is succeeding in doing neither job, that of deterring or the job of detection, particularly well.

Senator Durcan referred to the increased mechanisation of the Garda Síochána. This increased mechanisation, though obviously necessary, in certain respects has had unfortunate consequences. It has had the consequence of limiting the experience of substantial members of the force to work within the police stations or within their squad cars, which are nothing but travelling offices. Psychologists in America have concluded that a man's car is like his study: it is an extension of his house. Similarly, the Garda Síochána car is not only a method of transport but an extension of the Garda station. In their squad car gardaí feel at ease with themselves, they feel they are among friends but they are not contacting the members of the public.

I would like to pay tribute to the Minister [210] in this regard. The same cannot be said about the centre of the city but the suburban areas of the city are denuded of a meaningful police presence. The increased mobilisation of the Garda Síochána living in these areas — I do not mean mobilisation as members of the Garda Síochána, I mean mobilisation as human beings, as individuals — means that their knowledge of the area has been reduced. The resultant lack of knowledge is detrimental in the crime prevention portion of their task. All of us are familiar with the fact that with the introduction of motor cars we do not know our neighbours as well as we used to. That is a fact of life. We do not know our neighbours in urban areas as well as we used to and, similarly, the members of the Garda Síochána, because of the mechanisation and mobilisation of them as individuals, lack the knowledge of the area in which they live. The resultant lack of knowledge is detrimental in the crime prevention portion of their task.

I am not suggesting that members of the Garda Síochána in suburban areas are any more isolated from their neighbours than the rest of the members of the community but they, in fact, reflect the growing sense of isolation brought about by the use of motor cars as a transport system and the resultant lack of the sense of community which the motor car has fostered. Difficult as the problem has been in middle class suburban areas of urban Ireland, in local authority areas — in this regard politicians are to be blamed for the construction of large areas of exclusively local authority houses — the position is far worse. No member of the Garda Síochána lives in these big local authority areas. In Cork city, where I live, the largest local authority complex in the north side of the city, not only do they not have resident garda but since the foundation of the State they did not have a resident Garda station and successive Ministers have fought shy of the provision of a force as an integral part of that community.

Even in those communities where Garda stations exist the members of the Garda Síochána allocated to these stations [211] do not live in these areas, do not identify with the area or are considered alien by people who live in the local authority houses in the area. It is not without significance that members of the community worried about the outward manifestation of our drug problem have begun to take refuge in the extremists who, whatever their philosophy, live in and are identified with the problems of the people living in their area. In addition to these problems a further problem exists in that the reduction of the number of hours in which a garda is expected to spend on active duty — an inevitable development which I am not criticising — which has meant that the garda in an area in which he is stationed spends approximately 1,800 hours per year, plus whatever overtime he may be called upon to serve, out of a total waking hours in the year of 5,800. That is not total hours, it is total waking hours. The total waking hours is 5,800 and he spends 1,800 hours plus overtime in his own area. Included in that would be visits to courts and the various other things that would take him away from his own area. This represents only 31 per cent of his waking hours. It is obvious that a person who is spending only 31 per cent of his waking hours in this environment will have greater contact with his own circle of friends, which will tend to be other gardaí or people associated with gardaí than they have with the community in which he theoretically serves. Imagine the importance and significance of that in a local authority area where there is no garda to call it his home. Only 31 per cent of any particular garda's time is spent in the area if he is there for all his working life.

The restricted number of hours, which I emphasise is a trend which I recognise is irreversible, has also meant that in Garda stations, particularly larger ones, individuals on duty are in a constant stage of flux and that the continuity which is a necessary part of the investigation of any crime does not exist. I had a practical example of it myself. My house was burgled and three hours after I had reported it I rang to give an additional piece of information, but nobody had heard of [212] the incident although I rang up the same station. That occurred because the shift had changed, they did not know what I was talking about and I had to start again. The Garda appear to have recognised this and have responded positively with a concept which has other difficulties. It is the concept of the special task force which in the main has dealt with the investigation of individual crimes on a once-off basis by teams of gardaí without the normal time constraints applicable to gardaí, an understandable restriction, with regard to the number of hours overtime they work. These special task forces have, of course, given rise to their own individual difficulties but their emergence appears to have been a response to the disjointed nature of the Garda force which is the result of the greater degree of free time and the lack of structural change which has not taken place to meet that demand. This alienation between the members of the force and the community — “separation” might be a better word than “alienation” — is at the core of the frustration people feel with regard to the lack of preventive work being carried out by the members of the Garda Síochána and it is in this area that the people have given voice to their greatest criticism. If detention is introduced it is going to be an additional factor which will tie the members of the force to the Garda station, because when somebody is detained they have to be in there questioning him. This further concentration of the Garda force is an inward looking direction will further alienate members of the force from the community and reduce further the presence of police in the community in their primary crime preventative role. We should be very careful that the introduction of detention does not give rise to the growth of a siege mentality among the members of the Garda Síochána, and that is a considerable risk.

The use of the new power of detention will tackle the problem as perceived by the Garda Síochána, that is the reduction in their own self esteem, a reduction which has been brought about by low detection rate, but it will not tackle the problem which the community want to be tackled: a reduction in the number [213] of crimes committed. In this case the Minister and the Government are proposing to introduce new power which limits the freedom of the individual and there is an onus on those proposing the power to justify its introduction. That is their job. In this case, where the proposal is to introduce detention for the purpose of assisting the Garda Síochána in the investigation of crime, it is essential that consideration be given to the success rate of the period of detention granted by the Oireachtas to the members of the Garda Síochána under section 30 of the Offences Against the State Act, 1939, and the extension by the Government to the scheduled offences covered by part 5 of that Act. No attempt has been made by the Government or by the Minister to show that the use of detention has a beneficial effect on detection rates and no examples have been given by the Minister of improved detection rates in respect of the categories of crime covered by section 30 of the Offences Against the State Act.

In this regard the absence of statistics — and statistics have been requested in questions in the other House — is indeed surprising, particularly in view of the fact that these powers have been considered since 1967. Why is this information not available to us? All we want to know is how successful section 30 has been. If somebody could say to me that it has been very successful I might have a different view of the whole thing but nobody can say that even one person has been convicted as a result of section 30. I am sure one person has but nobody can identify numbers to show the thing has worked at all.

Mr. McDonald: Perhaps nobody asked.

Mr. O'Leary: People did ask and they were told in the other House that the information was not available. Statistics were not kept along those lines — that is what was said. But now, of course, we have a problem because the Minister, in the exercise of his very fine judgment, has decided that certain sections of this Bill, including the detention provisions, [214] should only operate for a limited period of four years. During Committee Stage of the Criminal Justice Bill at column 1845 of the Official Report of the Dáil debates the Minister said:

It would not be possible for the House, on the information presented to it by a Minister for Justice in five years time, to adequately make up its mind if it did not have adequate statistics on which to base its opinion.

In other words, what the Minister was saying is that in five years time he will give all the statistics we want about the success or otherwise of this detention. The Minister is right of course. We need to know how successful something is before deciding to continue it. He said five years time because that was before the amendment was included to reduce it to four. That seems to me to be a highly logical position.

We already have detention in this country. We have had it since 1939. Thousands of people have been detained each year since the mid-seventies. This measure was under consideration during that period. Why was the information not gathered with regard to the efficiency or otherwise of the detention provisions in section 30? If the Minister came to me and said that as a result of this, 50 per cent more people are being sent to jail then I would have something to compare it with. Subject to safeguards, it is not a philosophical objection that I have, it is the fact that we should leave it the way it is. I am naturally a conservative person. I leave things the way they are unless there is a good reason for changing. I am a conservative and so is Senator Higgins in this regard. You leave it unless there is a good reason for changing it. That is what the whole business of being a conservative is, and we have not been told that there is any reason for changing it. The Minister has told us that the will tell us in four years time but I will not be a Member of the Seanad in four years time and, therefore, I will have no responsibility for that review. However, I have a responsibility now and I cannot duck that responsibility and pass it on to the Members of the House who will be [215] here in four years time if this is implemented.

I examined the report on crime by the Commissioner of the Garda Síochána, dated 31 December 1983 and published in 1984, to see whether the categories of offences in which section 30 applied could be identified, but unfortunately there appeared to be an overlap between offences to which section 30 applied and did not apply. They are not listed or analysed separately nor any comparative figures given over previous years nor is there any relationship made between the numbers of people detained and the number of successful prosecutions. Why should we accept as an act of faith that detention in fact, improved the detection rates? It is a necessary part of the granting of this power to the Garda Síochána that we would have some yardstick by which to judge the subsequent outcome and I look forward to the Minister's reply dealing comprehensively with this particular point.

The only logical approach to this question of detention at present is a proper analysis of the detentions that have taken place over the past ten years and in particular since 1976 when the power of detention seems to have been used in the investigation of non-subversive activities on a routine basis, including the suggestion that a person accused of murder or attempted murder was detained under section 30 and on being questioned as to the statutory basis of the detention — murder not being one of the scheduled offences — the malicious damage to the fork, I do not know was it a table fork or another fork which was used in the assault, was the excuse given for the section 30 arrest.

The examination of the success rate in these cases is essential before any powers of detention are given to the Garda Síochána. Where an assessment can be made of the success or otherwise of the use of the power of detention in detecting crime and the detection rate compared with what would operate in the event of there being no detention powers, and being further compared with the detection rates in the category of cases where detentions [216] do not apply, then and only then can assessments be made as to whether the loss of liberty of the subject, which is inherent in the introduction of detention, is justified by the likely resultant increase in convictions. Instinctively I feel that there would be some increase in the rate of convictions but I believe that increase might be very minimal indeed. I further believe that this increase in detection rates would be achieved at the expense of the detention annually under the powers of section 4 of a totally disproportionate number of people who would never be charged with any crime.

I would suggest that after this has been in operation for three or four years that at least three times as many people will be arrested and never charged with anything as will be arrested, detained and subsequently charged. However, this is just my instinctive feeling. It is not based on any factual evidence because of the previous inability or unwillingness of the Garda force or the Department of Justice to keep statistics relating to the Offences Against the State Act. I have no doubt that if the section on detention is enacted — I hope it will not — then the information available after this section has been in operation for a few years will be inadequate to enable the House to come to a rational conclusion as to whether the powers could be continued under the provisions of section 2 of the Bill as before the House.

Those of us who disagree with the approach of the Bill, as I do, particularly in regard to the sections dealing with detention, have a duty to indicate what alternative arrangements we will consider necessary to meet the demand which the Garda Síochána, the Minister and the community feel is necessary in view of the escalating crime rate. As already outlined, I place great importance on the presence of the Garda Síochána in the community, both living and working in identifiable areas. We should seek to extend the influence of law by a heightened police presence not only in motor cars but also in ordinary police deployment, foot deployment, and in ordinary social, domestic and cultural involvement in an area. This will be the [217] single most important change which will be necessary and effective and will reduce the incidence of crime to the greatest possible degree.

Secondly, the police force should be reorganised in such a way that the present ad hoc arrangement concerning the time which each individual member of the force spends working in an area is restructured so as to give greater continuity to the process of police representation. This may involve the spreading of the 40 hours or so each week spent by a garda on duty in a different fashion and the establishment of teams within each Garda station with group responsibility. This is an operational matter. I have not the expertise to offer definitive advice to the garda authorities, but it is certain that it is one of the areas of the greatest need within the Garda structure.

Thirdly, I do not share the view that low detection rates, which undoubtedly exist, mean that a substantial number of criminals get away without any punishment whatsoever. I do not accept that. In this day and age a substantial number of young people involved in car theft and other crimes of this nature which make up a substantial amount of the indictable crime very often are punished, maybe only for one such offence. They may have committed a number of similar offences in the past for which they are not caught. From the point of view of practical reality if the person involved has been charged with all the offences which he has committed over a length of time, then the period of time which he would spend in prison, or the fine imposed on him would not differ significantly. In this regard I do not consider any great change necessary in the length of time that people are sentenced to prison.

In one area I think the law should be changed. That is in the area of monetary fines, in particular monetary fines relating to crimes of an economic nature. In this regard I include particularly the selling of drugs. The fines are wholly inadequate to punish those involved. The tragedy about those involved in the Dublin drugs scene, one family in particular, is not that it took so long to convict those who are in prison or that the length of terms of imprisonment [218] which they received were inadequate, but that the family continue to benefit from the economic prosperity generated by their illegal drugs activity. That is the real injustice. Provision should be made for the investigation by a special unit of the Revenue Commissioners of the affairs of all convicted criminals where it is suspected that substantial amounts of money were involved. The Revenue authorities under the provisions of section 19 of the Finance Act, 1983, are empowered to levy taxation in respect of illegal income. In addition the sentencing authority of the court should include the power to penalise the offenders by way of very substantial fines. The law should be structured in such a way that the levying of those fines should be postponed until the completion of the investigation to which I have referred while the remainder of the sentence could be commenced. I believe that this is the most effective way of dealing with crime barons, that is, hurting them where it really matters, in their pocket.

I want to make a brief reference to the range of offences covered by section 4. In this regard I am greatly in the debt of a book called The Irish Criminal Process produced by a colleague of mine, Edward F. Ryan, Professor of Common Law at University College, Cork, and Philip P. McGee who is a barrister and one-time lecturer in law in Queens University, Belfast. It was published this year by the Mercier Press and it really is an excellent publication. Among the things it does which are very beneficial to the Members of this House is that it lists particular crimes. I am sure the authors intended every crime to be listed but I know one group of crimes which is not included. They list crimes in an appendix starting on page 536. They head them “indictable crimes”: abduction, abortion, aiding and abetting, aircraft crime, animal crime and various other crimes are listed. It also conveniently gives the maximum sentence for alternative verdicts available. There are in that list 243 crimes which will be the subject of this detention provision. It would be abusing the patience of the House for me to read them out. I have no intention of reading even one of [219] them, but it is a frightening number of crimes. I must admit that some of them come under different sections of different Bills — for instance, in banking it might be section 17 and section 18 with two different offences — but they are identifiable different crimes. There are 243 of them with a potential conviction on indictment of at least five years, and that is a surprising number. That is the range of authority which it is proposed to give to members of the Garda Síochána. However one group of offences is omitted, probably because the authors are not themselves practising in that area, but these are the Revenue offences. I was a Member of this House when section 94 of the Finance Act, 1983, was enacted and that created an additional sentencing possibility in respect of practically all Revenue offences. It had substantial enough fines and certain smaller terms of imprisonment in terms of District Court appearances, but in respect of indictments the term of imprisonment is five years under section 94 of the Finance Act, 1983. What is covered by that? You get Form 11 every year, and it states that you must make a return on that Form 11 within 21 days. If you do not return that you are liable to be picked up, detained and questioned, not about your Revenue offences. You will be questioned about anything because it is a procedure long established by the courts that when you are lawfully detained, the Garda are by no means limited to discussing what you are detained on, they can refer to any matter and not just the matter on which you are detained. They can ask you any question during the period of lawful detention.

In other words, if you get Form 11 and fail to return it within 21 days, you are then liable to be detained. Should I correct that by saying that if a member of the Garda Síochána suspects that you have not returned it within 21 days, you are liable to detention? It does not matter whether you have done it or not, as long as he suspects that you have not. I would say from my knowledge as a practising accountant as well as a practising lawyer that there is hardly a citizen of the country [220] in respect of whom a member of the Garda Síochána could not entertain a reasonable suspicion of that kind.

Mr. McDonald: Does the Senator think there is enough law there already?

Mr. O'Leary: There is. That is what he was talking about. This is the Form everyone ignores. Even most professional accountants never fill it in. I do not really do tax work of that kind. If I did, like the other accountants, I would be dealing directly with the tax office. They send in the accounts. There are questions and there is agreement and, at the end of the day, the tax office asks them to fill in Form 11 to regularise the position. Form 11 will not be filled in until an agreement is reached. Any time after 21 days you can be arrested.

Senators might say that is ridiculous, that the Garda would not use that. What did they use in the Phoenix Park? They used an alleged by-law with a penalty of £2 and it still has not been brought officially to anyone's attention as to exactly what the by-law was. What did they use when they wanted to detain a person for murder and they had no power to do so? An ordinary fork had been dented and this was malicious damage. If members of the Garda Síochána are faced with a difficulty — and I am not blaming them — they will use whatever facilities or whatever power we give them. There is no employed person in the country about whom a member of the Garda Síochána could not have a reasonable suspicion to enable him to detain that person.

I look forward to the Minister responding to the difficulty created by section 94 of the Finance Act, 1983. This is all I have to say on detention. That is the first section on detention. There are 17 sections concerned. As I said at the very start, my attitude to the remainder of the Bill is that I support it. It is a good Bill. There are many fine things in the Bill on which the Minister should be congratulated. There are many points which we can take up on Committee Stage.

Senator Higgins said in his own very forceful way that this is not a Committee [221] Stage Bill only. Of course, we will have a Committee Stage debate. There is a lot of work to be done on Committee Stage, but it is a Second Stage Bill. The first thing we have to decide is whether we are in favour of the Bill in principle. After that we can discuss the nitty-gritty. It is a “cop-out” for politicians to say it is a Committee Stage Bill. What they are then saying is: We will let it through, and then we will try to adjust it afterwards.” I am not suggesting that we should not give it a Second Reading and that we should not consider it.

I am suggesting that the problems which are confronted should be put to the Minister on Second Stage, because the occupants of the Chair will not be as lenient with us on Committee Stage as perforce they have to be on Second Stage. Throughout the consideration of the Bill in Dáil Éireann which I have here analysed section by section — so the Minister can look forward to an entertaining time — many times Deputies were reminded that on Committee Stage they could not make long speeches. Senator Higgins is right. This is the time to say whether we are in favour of the Bill in principle or what we consider to be the dangers or otherwise of the Bill.

With regard to detention I remain in favour of what the Taoiseach said before we came into power. I am not against detention as a matter of principle. I am against detention for the purpose of interrogation by members of the Garda Síochána. If the detention is put on a proper basis, if the questioning is done in the judicial or quasi-judicial nature as suggested by the Taoiseach then it will have my full and enthusiastic support. Offences committed on bail and other offences have been a scandal. I congratulate the Minister for tackling this problem. He is quite right to deal with it.

With regard to the question of withholding information regarding firearms or ammunition in sections 15 and 16 a problem arises. It is not that I disagree with the provisions themselves — it is just that I see a certain force in both sides of the argument. On one side the Minister has agreed that they should not be used as information given for the purpose of convicting people. But that [222] will be so self-evidently ludicrous that it will become a pressure point in the future. It is a matter which the House should consider and see how we could address ourselves properly to the problems created.

With regard to the inferences taken from the accused's failure to account for certain matters, I was never numbered among those who felt that the right to silence was the most important of the problems in this Bill. I did not feel that. The Minister of State at the Department of the Taoiseach will confirm that that is the case. That was never my problem. As long as a thing is done in a structured, proper way, it is reasonable at a certain stage of an investigation for people to give an account of themselves. Therefore, I consider that sections 18 and 19, in so far as they relate to inferences from failure to account for objects, marks, and presence at a particular place, are very reasonable and have my full support.

Regarding section 20, the trial procedure, the question of alibis which is part of the policy of the party of which I am a member and was adopted by the party, it is fair and reasonable and something that I support 100 per cent. The proof by written statement and by formal admission are necessary reforms of the law. The abolition of the right of the accused to make an unsworn statement is an anachronism from the time when accused persons were not entitled to give evidence on oath. Since that change came about, the fact that an accused could make an unsworn statement was an anachronism. If an accused made an unsworn statement when he had the opportunity to make a sworn one, nobody believed him anyway. He actually damaged his case. The jury would say: “Why the hell did that fellow not go into the witness box and allow himself to be cross-examined like anybody else?” If he did not go in at all, they might well be able to understand that that was a tactic for which his counsel would normally accept responsibility. The counsel would normally say: “My advice to you is not to go into the witness box.”

The question of the notification of alibis is again very reasonable. The order [223] of closing speeches is a technical matter. Majority verdicts are a very wise development indeed. I am very doubtful that electronic questioning will ever come about, not because of technical difficulties but because of the determination of those who represent the Garda Síochána to put difficulties in the way of its implementation.

One other matter which came up on the Second Stage debate and which the Minister should consider before Committee Stage, is section 7 (3), which was referred to. The point has been well made by the Members who have expressed difficulty with regard to that section. I hope the Minister will consider how he can tighten up that section to make sure that it does not act as a deterrent. Members might to a certain extent be misrepresenting the results of the section. The garda would be amenable in the ordinary course of law but it is something that the Minister might consider and give his views on.

Finally, the concept of detention and indeed the concept of the right to silence, whether I am for or against it, should not have been introduced by way of legislation without the publication of a White Paper. No political party went before the people with that as its policy, neither Fianna Fáil, Fine Gael or Labour. We do not have a mandate to do it. The discussion which would have followed the [224] publication of a White Paper would have eased many problems for the Minister and it would have helped in regard to the problems which the Minister now has in trying to get this through both Houses of the Oireachtas. I am not against detention. There are detentions for two reasons. One is detention to investigate a crime. I have not referred to it; I am not really against it. The other is detention for the purpose of questioning. I am totally against that. We do not have that tradition. All the evidence is that it will cause problems, and for that reason I am against it. If, however, detention for the purpose of questioning was not questioning by members of the Garda Síochána alone, but rather in respect of questioning by people other than the Garda Síochána or by the Garda Síochána before somebody in a judicial or quasi-judicial position, then I might find myself able to support the concept of detention under those circumstances. But, as it is presented in the Bill, the concept of detention is fraught with danger and I would have considerable difficulty in supporting its implementation and enactment into law.

Debate adjourned.

The Seanad adjourned at 6.45 p.m. until 2.30 p.m. on Tuesday, 18 September 1984.