Barry Ward (Fine Gael)
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I will start from the end and work my way back. I will start from head 42. I am astonished this has found its way into the draft heads of the Bill. The notion that we would interfere with the right of a person to be represented by legal counsel at the point of questioning is anathema to the system we have. We have a very delicate balance within our criminal justice system, central to which is the right of a person to obtain legal advice. I cannot see a circumstance in which it would be justifiable for a garda to decide a lawyer was being disruptive when that is exactly what his or her job is. A lawyer's job, if it is to be disruptive, is to represent the rights of the person who is being questioned. To say I am disgusted may be a bit strong, but I believe it is extraordinary that this provision has found its way into the heads. To my mind, it is unconstitutional. I am particularly alive to what Mr. Collins said in that I have grave difficulty with this. I would be very unhappy if it found its way into the Bill, when drafted. Equally, the notion that a senior Garda could just decide a lawyer is to be excluded is an absolute no-go area. Therefore, I agree with the submissions made in this regard.

On what Mr. Collins said about the waiver not being available to somebody under the age of 18, I presume he is referring to head 43(4), under which an inspector would step in. I understand from having read the Bill earlier that someone under 18 cannot waive the right to legal counsel anyway. That is as it should be. There should be a right for someone to waive but not in the case of a young person.

On head 21, on a senior garda issuing an emergency warrant, I agree with what has been said. I do not understand how it could ever be the case that one could not find a District Court judge, peace commissioner or somebody else to issue the warrant. I do not think the provision is justifiable. We should not be putting these kinds of powers into the hands of the Garda because, again, urgency will always be found if looked for, or if that is what the Garda decides it wants. The provision compromises gardaí themselves because it will put enormous pressure on gardaí of certain ranks to find reasons to justify actions under it. Ultimately, this will create problems further down the line. When the provisions of this kind of legislation are tested in the context of a criminal trial, judges will be very slow to admit the kind of warrant in question. It is much better to say to gardaí that they must steer themselves into the parameters of getting a proper authority in order to conduct a search in the normal way. Therefore, I have real difficulty with head 21.

On head 16, on the authorisation for a search, I have a query. It may be for the witnesses from the Department of Justice. A single member of An Garda is authorised in a warrant. If the correct channels have been gone through to get a search warrant and that warrant is in the name of a particular member, what happens if he or she is not available? Does that mean the search simply cannot take place? In the normal course, a team of people would conduct a search. If a search cannot take place because the person named on the warrant is not available, it is an unnecessary fettering. There should certainly not be anybody searching the premises who is not named in the warrant but my reading of the head as currently drafted is that the person authorised by the warrant to lead the search must be present for it to take place.

I have a question for Ms Clare Daly on what she said on head 6. I am not saying I disagree with her, specifically concerning the consequences of the breach of rights under the legislation. There is definitely a problem. I would not go so far as Ms Daly has done because my concern is that if nominated penalties or specific sanctions are put in place in respect of a garda who breaks the rules, it might have the effect, unintended though it might be, of discouraging gardaí from conducting the searches. The gardaí might become concerned about their liability if a search must be conducted in a certain way. However, the current reality is that if nothing flows from a search that gardaí have conducted illegally, it does not matter and there are no consequences. No evidence gathered is lost if that evidence is not useful, but that does not discourage the gardaí from conducting the search. It becomes an issue only if something of evidential value arises during the search and it cannot be relied on in court, although the DPP v. JC decision and others have substantially watered down the exclusionary rule, as we would have called it, or the fact that evidence can be excluded when it is illegally obtained.

Having stated my misgivings, my questions are on the issuing of a warrant in the context of multiple members of An Garda and on sanctions for gardaí who flout the rules or choose to go outside the provisions of the legislation. While the latter question is for the witnesses from the Department of Justice, I will be happy to hear from Ms Daly on it.