Joe Costello (Dublin Central, Labour)

I must say that when the Minister does it, he does it. Some 22 pages in 45 minutes, as Gaeilge, was certainly over and above the call of duty.

A Bill that is likely to contain amendments which will be in excess of the substance of the original text is not the way to do business. The Minister has a penchant for introducing a Bill and then producing a range of ancillary and miscellaneous provisions, some of which are related while others are not. In that way, the initial Bill becomes something of a dumping ground for various other provisions that may enter the Minister's mind from time to time while the Bill is before the House.

I have considerable problems with this legislation although it contains necessary aspects, such as preserving the scene of the crime. I always thought that provision was part of the relevant legislation but presumably gardaí did not have any right to block roads at crime scenes in the past. We are only regularising this matter now but it is a welcome step. It should have been done long ago.

The legislation contains severe measures which will have fundamental and far-reaching implications in many respects, not least in the area of civil liberties.

More than ten years after the IRA ceasefire, the Government remains of opinion — so far, the Dáil has agreed with the Government on this matter — that ordinary jury courts are inadequate to secure the effective administration of justice and the preservation of public peace and order.

What used to be special measures to deal with emergencies are now part of our ordinary law. For example, it used be possible to argue that, except in exceptional circumstances authorised by the Offences Against the State Act, gardaí have no power in law to arrest a person for interrogation purposes, that Irish law did not recognise the concept of holding a person for questioning and that the only purpose of an arrest was to ensure the attendance of an accused before a court in answer to a charge.

However, a process of gradual statutory encroachment means that arrest, detention and questioning have become routine in the investigation of all but the most minor crimes. The power to question people suspected of serious crimes is not of itself objectionable but what must give rise to caution are the circumstances in which it takes place. Questioning in custody is both secret and compulsory. These two factors go to create an environment in which the suspect can become the subject of oppression and be induced to make a statement. At the time of arrest, the Garda interest changes from one of investigation to one of accusation, and the person in custody becomes the adversary of the Garda Síochána. Custody creates an imbalance between those adversarial parties. Every person who has been exposed to the administration of justice in our criminal courts knows how often confessions made by an accused are introduced as evidence and they are often the sole evidence. Everyone familiar with our criminal courts knows how often the accused will deny the crime and reject his confession and how often such confessions constitute the entirety of the State's case against accused persons.

Even leaving to one side the occasions when police have been suspected of subjecting those in their custody to violence, many suspects find detention in police custody so intimidating and overwhelming that statements made in such conditions of confusion and disorientation are often unreliable. This is of concern in the case of the young, the less privileged, the least educated members of society and those least integrated into society. One of the ironies is that hardened criminals are much more used to coping with police custody than innocent, young or poor people and they are much less likely to make self-incriminating statements while in a Garda station than somebody young and disoriented.

I will outline a number of examples in this regard. The following passage is in appendix K to the report of the tribunal of inquiry into the Kerry babies case:

Ned, Mike, and I left our house at 3.50 a.m. . . . we drove through Tralee, on through Dingle town for about six miles and we stopped at a place where the road runs beside the sea, and Ned who was driving got out and opened the boot of the car and took out the bag containing the baby and threw it into the sea. It was about 5.30 a.m. when Ned threw the bag into the sea. You could see the water from the road where we were parked and when the bag was thrown in, it sank and resurfaced and floated on the water.

This dramatic passage was taken from a statement made to the Garda by Kathleen Hayes, the sister of Joanne Hayes but it is a description of a journey she never made and a series of events that never took place. We still do not know why that statement was made.

I refer to the attitude of Judge Kevin Lynch to the Garda evidence. He stated: "They are not barefaced lies on the part of the Gardaí . . . but they are an exaggeration over and above the true position, or a gilding of the lily, or wishful thinking elevated to the status of hard fact."

A more recent example is the case of Dean Lyons, a young heroin addict from Dublin who was accused of the brutal murder of two patients in Grangegorman in March 1997. Sylvia Shields and Mary Callinan were murdered, stabbed and mutilated at their home in the grounds of the psychiatric hospital in my constituency. Four months after the murders, Dean Lyons was living homeless in the north inner city when he was arrested for questioning. He was taken to the Bridewell Garda station where he was at first held in cells and then placed in a video and tape-recording suite.

Two detective gardaí began questioning him at 2.27 p.m. Mr. Lyons had been without heroin since the previous day. The transcript of this taped interview shows him to be confused and incoherent. We now know that he suffered from learning difficulties at school, feared authority figures and had a habit of confessing to things he had not done. He readily admitted to every charge put to him during the interview. His mother and father, who were allowed to visit him, said he appeared completely disoriented and was swaying and slurring his words when they met him. He was questioned again after they left. As a result he made another written statement and was then charged with the murders of SylviaShields and Mary Callinan. However, when this statement was made, there was no video or audio-taping.

The statement contains a chronologically correct narrative about the murders. It also contains accurate descriptions of the interior of the house and the actions of the murderer inside. The media had not published such detailed information at the time of the murders. It was known only to the murderer and to the gardaí. The written statement is in clear, mostly grammatically correct English. Dean Lyons had left school with partial reading and writing skills and he had a limited vocabulary. On the basis of his confession, he was charged with the murders.

Three weeks later, a young married couple, Catherine and Carl Doyle, were stabbed to death at their home in Roscommon. An English-born man, Mark Nash, had been visiting them with his girlfriend, Catherine Doyle's sister. He had lived in north Dublin for the previous two years. Following the Roscommon murders, Mr. Nash took off across the fields towards Galway but was caught by gardaí within 24 hours. He admitted to the Grangegorman murders when arrested but the gardaí did not have a clue what he talking about.

It transpired that two men confessed to the same murders, one who could not have committed them and the other who has never been charged. We still do not know what happened or whether the person who confessed to the murders, and who is currently in prison, will ever be charged.

The chairman of the Garda Complaints Board, Gordon Holmes, has said that public confidence in the Garda is at, or near, an all time low. While the majority of gardaí were "first class", the public perception is that officers who behave less than honourably are not being adequately investigated and punished. I refer to another voice from the coalface, retired Circuit Court judge, Anthony Murphy, who presided over criminal trials in Cork city and county for many years. He told RTE's "Prime Time": "There have been occasions when the guards have committed perjury in my court". He added he had heard confessions, which were:

couched in Templemore phraseology ... I had a simple rule about it. If there was a confession and nothing else, the man [the accused] walked.

I do not need to refer the Minister to the abuses identified by the Morris tribunal.

The reality is that gardaí will arrest a person because they already believe that person is guilty of committing a crime. They will then question that person in custody to secure a confession that confirms those suspicions and this approach will inevitably impact on the evidence the gardaí may later give in court. The result of this approach, coupled with the political pressure on them to obtain convictions, has sometimes produced miscarriages of justice. Judges will not prevent these miscarriages from happening. That is because no law prohibits interrogation during detention. Interrogation is facilitated by the current rules and it is about to be made even easier.

The explanatory memorandum casually describes the legislation as proposing "a number of amendments to the Criminal Justice law, particularly in the area of criminal initiatives which will generally improve the efficiency and the effectiveness of the criminal justice system". With this introduction, the Minister proposes the most far-reaching changes in the criminal law in more than 20 years when the principle of detention for the purpose of questioning was first established.

The Criminal Justice Act of 1984 provided for increased powers of detention consisting of an initial six hours with provision for a further period of six hours solely for the purpose of questioning. This was a radical departure from the common law position of arrest and subsequent questioning. Detention for the purpose of questioning was perceived at the time as a trawling exercise, which was a major infringement of civil liberties. However, the legislation proposes to double the period of detention to 24 hours, which is the same as that provided under the Offences against the State Act 1939.

Last year when we debated the renewal of the Offences Against the State (Amendment ) Act 1998, which granted further powers of detention to the Garda in the wake of the Omagh bombing, it transpired that the vast majority of suspects arrested were held for only 12 hours and virtually everybody was released within 24 hours. A period of detention of seven days was provided for in 1976 but it was abolished in 1997. It is wrong to equate the period of detention of terrorist suspects with that of ordinary suspects and to imbed it in criminal law.

Under the Good Friday Agreement, Ireland committed itself to a review with a view to dismantling emergency powers and legislation. The Human Rights Commission has gone to great lengths in its peroration on this proposal to explain why the Minister should think more than twice about the introduction of the Bill. I will not go into the details of it, as the Minister has the report. It is absolutely essential that if we are to go down this road, about which I have great reservations, that video and audio recording would be mandatory for all questioning in Garda stations.

The extra detention powers granted to the Garda in the 1984 legislation were to be safeguarded against abuse by the introduction of the new garda complaints measures which were eventually introduced in 1987 and proved such a disaster. That was the quid pro quo.

The further quid pro quo at the time was the even more elusive proposal to have video and audio recording of suspects being interviewed while detained in Garda stations. This proposal came about because the activities of the "heavy gang" had brought the Garda Síochána into disrepute in the mid 1970s. A committee was set up under Judge Barra O'Briain in 1977 to establish measures of best practice by the Garda in dealing with and in questioning suspects.

In 1979 the O'Briain report recommended that the questioning of suspects in custody should be audio and video recorded, and that the necessary equipment should be installed in Garda stations. Progress in implementing the recommendations has been scandalously slow. A quarter of a century after the report was published the scheme for audio and video recording of Garda interviews exists only on a pilot basis. This must be the longest period of a pilot scheme anywhere in the world.

Many Garda stations now have the facilities installed, thanks to the Minister. It is time for firm action, for the termination of the pilot scheme and to make mandatory recording of all interviews an integral part of the provisions of this legislation. I will table amendments on this important matter on Committee Stage. I hope the Minister will be open to them.

It must be emphasised that mandatory recording of Garda interviews would be as much a protection for gardaí as for suspects, in terms of the possibility of false complaints. Statistics point to a significant number of frivolous and vexatious complaints.

The move in regard to search warrants is a more sinister and more fundamental provision whereby gardaí would be permitted to grant search warrants to themselves. We have seen how perversely the existing Garda complaints mechanism has operated under the principle of allowing the gardaí to investigate complaints of wrongdoing against gardaí, so much so that the Minister considers it is his prize proposal in the new Garda Síochána Bill 2004 to repeal that complaints mechanism and replace it with an independent ombudsman commission to restore public confidence in the authorities' ability to ensure Garda accountability. We are being foolish in the extreme if we reactivate the same discredited approach in this Bill that we are abolishing in its sister Bill. It is only a matter of time before a future Minister for Justice, Equality and Law Reform would be back in this House to repeal that provision.

A new dispensation in the Bill would allow the Garda to decide to enter and search our homes and property, search us and seize "anything found at that place or anything found in the possession of a person present at that place at the time of the search, that that member reasonably believes to be evidence of or relating to the commission of an arrestable offence". It makes a mockery of the whole concept of a search warrant. A District Court or a justice of the peace are third parties to whom gardaí currently have to argue the case. We should look at other democracies throughout the world, in particular the United States, at the manner in which police officers are questioned on the matter.

I have concerns about how we operate the current procedure. It is patently obvious that there are abuses in the way search warrants are issued at present. I do not refer to the Judge Curtin affair, rather I refer to the reply I received on 10 June 2004 to a question to the Garda Commissioner in regard to search warrants. In his reply he stated that for 2002, the Garda Síochána sought approximately 4,145 warrants and approximately 4,132 warrants were granted. That is an incredible 99.7% success rate. The Garda Síochána must have wonderful powers of persuasion if they can persuade so many judges to grant them search warrants. It suggests that the process has pretty much become a formality. It is high time the matter was addressed but the way to address it is not to give the Garda the authority to grant themselves search warrants.

The reaction of the HRC to this proposal was quite hostile. It stated that the powers of detention without safeguards and the untrammelled powers of search and arrest were stark reminders of 19th century agrarian legislation. The Lord Lieutenant sought to repress agrarian discontent with the heavy hand of the law and the police. At the same time some appeasement and relief was granted through a Land Act. The present twin-track approach of the Minister with the Criminal Justice Bill and the Garda Síochána Bill is a modern version of the 19th century repression and appeasement approach. No doubt the Minister and his Progressive Democrats Party wistfully hanker after the simple, patriarchal measures of the gentry and the empire. However, we are living in changed times in the 21st century.

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