Mr. Liam Herrick:

Today, I will present the preliminary submission of the Irish Human Rights and Equality Commission on the general scheme of the Bill. Under section 10(2)(c) of the Irish Human Rights and Equality Commission Act, we have a specific mandate to report on legislative proposals and their implications for human rights and equality. Our submission focuses on four issues raised in the Bill.

The first area of concern relates to heads 5 and 6, which propose to significantly expand the use of remote hearings in criminal proceedings, including trials. While we acknowledge the potential efficiencies of the proposal, we have concerns about the impact on the fundamental right to a fair trial. An accused person's ability to effectively participate in their own trial is a cornerstone of our justice system. Remote proceedings can create a sense of isolation and make it difficult for an accused person to communicate confidentially and effectively with their legal team during a hearing. This is particularly concerning for structurally vulnerable people, including disabled people, who already face significant barriers to accessing justice. We produced research on this problem last year. There is also a risk that remote participation of an accused person appearing from custody, specifically, via video link could be prejudicial, undermining the presumption of innocence. For these reasons, we believe remote hearings in a criminal context must be exceptional and not routine. We recommend that the heads be significantly amended to include robust safeguards and a provision for review.

Second, head 19 concerns the disclosure of counselling records in sexual offence cases. The proposed Bill continues the practice of disclosing highly sensitive records, rather than ending it. This runs contrary to the strong recommendations of international human rights bodies such as GREVIO, the Council of Europe’s expert group on violence against women, and the UN Committee on the Elimination of Discrimination against Women. We recommend that this approach be reconsidered with a view to ending, or at the very least significantly reducing, the disclosure of counselling records and extending similar protections to other sensitive documents, such as medical records, about which the committee has already heard from colleagues. We acknowledge the State has made reference to Attorney General advice on this matter but we have not had the benefit of reviewing that.

Third, head 20 proposes to amend the Firearms Act to permit prison officers and civilian gardaí to use incapacitant sprays, such as pepper spray. These sprays are dangerous substances that cause severe pain and can have serious negative health effects. Their use in confined spaces, such as prisons, is particularly dangerous and has been criticised by the European committee for the prevention of torture. Case law from the European Court of Human Rights shows that the misuse of such sprays can amount to inhuman or degrading treatment. We believe alternative de-escalation methods are available and this power is not necessary.

Finally, head 26 proposes to give An Garda Síochána the power to direct a person to remove a face covering in a public place. This proposal could have a chilling effect on the right to protest. People wear face coverings for many legitimate reasons, including health, religious, cultural or solidarity purposes. This power could be applied in a discriminatory way and would place gardaí in the impossible position of having to discern the intention behind the wearing of a face covering. We recommend this provision be subject to extensive human rights scrutiny and review.

We remain available to the committee for any questions it may have.