Pa Daly (Kerry, Sinn Fein) | Oireachtas source

I welcome all the witnesses. Like Senator Ward, I will start with head 42 since I worked for 25 years as a solicitor in the court in Dublin, in addition to Garda stations in Dublin and Kerry. I always think back to the introduction of the drug trafficking law with the power to hold people in detention for seven days. The first person I saw who was held under that legislation was a homeless single mother who was living in the Regina Coeli hostel. She informed me, and I believed her, that she was told that if she did not tell gardaí about the three or four deals of heroin that she had in her locker, she could be held for seven days and gardaí could talk to the HSE, or whichever the body was at the time, about taking her child into care. That is what happens on the ground and on the front line. I am staggered by the tone of each and every section of head 42. The whole tone seems to be that solicitors are going into Garda stations with no other attitude than to cause trouble, which is complete rubbish.

For example, subsection 1 of head 42 states that a custody officer shall "cause a legal representative to be notified ... as soon as practicable." As any solicitor who goes into Garda stations will tell you, that gives an opening to gardaí to say that the detained person never asked for a solicitor, or that he or she asked for a solicitor the first time but never asked for one to come in again, or that the gardaí are too busy at the moment and the solicitor is left standing there. Nothing seems to have changed there.

The "Garda custody facility" is mentioned throughout head 42; it is actually the Garda station. It seems to me from reading subsection 2 that the time from when a detained person asks for a legal representative until "the conclusion of such a consultation" will be excluded from the detention period. Is it proposed to add that time on again? There are major dangers in that because it would be open to gardaí to say to detained persons that if they talk to this sharpshooting solicitor who is coming into the Garda station, it will only delay their detention even further. Gardaí already have plenty of time within the massive powers under various legislation, such as the 1984 Act and the Offences Against the State and drug trafficking Acts. Many's the time I was in a Garda station where someone was arrested late in the evening. That person was not interviewed at all, possibly for the first 12 hours of his or her detention, before the actual questioning started. There is potential for blaming the solicitor and I disagree with that. It is a similar case with the phrase "during the course of questioning" used in subsection 3.

Subsection 4 includes the words, "If a legal representative cannot be contacted within a reasonable timeframe". Many's the time I saw, and everybody knows, that gardaí have their own personal favourites they would prefer to have in Garda stations rather than some other solicitors. There is a difficulty at present, even before any of this comes in, in giving a detainee the opportunity to ask for another legal representative. It seems to me that it is problematic to codify that.

I am completely opposed to subsection 6. What is the definition of being "unduly disruptive"? What is all that about? I know solicitors. I spoke to one today who told me that when she indicated to gardaí at the beginning of an interview that her client would be exercising his right to silence, she was nearly put out of the Garda station. She had asked for something that the gardaí say, which is that "You are not obliged to say anything... but...[anything] you say will be taken down in writing and may be given in evidence." Let us face it, when someone goes into a Garda station on the ground, the solicitor's chair is behind the eyeline of the detained person. A solicitor sitting in the interview room who looks across at the detained person will not be able to make eye contact with him or her because of the way the room is designed. By the way, the chair is nailed to the floor. Four or five years ago, criminal solicitors had a meeting with the Law Society and a former Garda Commissioner. We were promised that would be changed but that has not happened. Solicitors have been asked to hand over their mobile phones. All of that is going on. What is the definition of "unduly disruptive"? Will solicitors be asked, or given something in writing, as to why they are being disruptive? I am completely opposed to that. It is rubbish and I do not know where it is coming from. I would love to know what lobby group suggested that that provision go in.

I have probably spoken enough about head 42. There are a lot of others. I agree with much of what Ms Daly said and with what was in Mr. Collins's statement. Head 9 is about stop and search but "reasonable grounds" are not defined. That has caused difficulties over the years when people are stopped and searched. We also saw what happened in areas such as Bristol and London in the 1970s and 1980s, where there were strong ethnic communities. I agree with Mr. Collins's request that ethnic background be included, but so should the area of town that people come from. Anyone who is unfortunate enough to have Snapchat can see where people are. It would be very interesting to have a map indicating the areas of towns or cities where people who are stopped and searched are from.

Head 12 is about keeping a record of a search. I have concerns about head 16. Anyone's phone is a computer and many's the time I have had problems when people were arrested for very minor offences. Let us face it, an arrestable offence is one for which a person can be arrested and held for up to 24 hours in a Garda station. If someone went into Dunnes Stores and stole a Mars bar, that is an arrestable offence because, potentially, if that person went for a judge and jury trial, or the Director of Public Prosecutions sent it forward, that individual could face a penalty of up to five years. Those are the types of powers we are dealing with on the ground. I have had people who were arrested, and possibly questioned for a short period of time, who have a picture gallery on their phone that includes photos of dead children and family members who are now deceased, in addition to lots of other stuff on what is, in effect, their personal computer. When detainees ask for their phone back, they are told it is in a facility where all detained items are sent and they cannot get it back. It is very upsetting. Something has to be done to take that type of scenario into account. There must be proper oversight of the search warrant in urgent circumstances. The constitutional right to the inviolability of a dwelling house is very important and we should not throw it away.

The power of arrest for an offence comes under section 23. I will ask someone from the Department to explain an "offence". How will that be defined? Can an individual be arrested for no tax disc on a car or will it go back to the current situation of an arrestable offence with the possibility of a five-year sentence?

The citizen's arrest referenced under head 25, and what that person believes to be "reasonable", is a complete minefield. Is that carte blancheto security guards and bouncers to start holding and arresting people? I see major problems there.

A number of things are mentioned towards the end of this document that I cannot pick up now. This legislation will have to be amended. We will bring something forward. I ask for an answer to the question regarding what is an "offence" under head 23. Let us flag here and now that there are major problems with this heads of Bill.