Paschal Donohoe (Dublin Central, Fine Gael) | Oireachtas source

I move amendment No. 33

In page 43, to delete line 5 and substitute the following:

“(a) contravenes section 38(7)(a) or (b),”.

Both SIPO and the Department of Justice and Equality raised concerns with my Department that there might be some provisions in the Bill which are not appropriate for inclusion in the context of Chapter 3, which deals with investigations, and which could potentially cause problems for subsequent criminal prosecutions around compellability issues and the rules of evidence. As a result, I have tabled these amendments, which are all related, in order to deal with the issue.

These revisions operate on the basis that there will be no hearing or interviews under oath in the course of an investigation but that there will still be the possibility of an oral hearing before the commissioner. The distinction is that where a breach is such that a prosecution for an offence is anticipated, the breach can be processed, through the investigation procedure provided for in Chapter 3, to a prosecution without any hearing taking place. As no hearing would take place, there is no possibility of prejudicing a subsequent prosecution. If a breach is such that an administrative sanction only - rather than a prosecution - is anticipated, the commissioner can hold an oral hearing without the fear of any subsequent prosecution being tainted.

To express this in a different way, a fundamental rule in criminal law is that which relates to self-incrimination. This rules stipulates that an accused cannot be compelled to provide evidence of information against himself or herself which could then be used against him or her in a criminal prosecution. The only circumstances in which that could happen would be in respect of a criminal trial.

Let us say a suspicion is formed about a criminal offence being committed. The purpose of this change is to make sure that in the process of the commissioner investigating it, he or she does not ask for evidence to be published, particularly in public or on oath, which would then cause a difficulty in the subsequent criminal trial.