Michael McDowell (Dublin South East, Progressive Democrats)

I will do so. I am speaking on amendment No. 38 but I will also discuss amendments Nos. 39 and 403.

During the Committee Stage debate I indicated I was considering bringing forward an amendment to address the issue that arose in the aftermath of the murder of Donna Cleary which was an appalling event of recent times. The House will recall that the continued detention of a suspect in that case under section 30 of the Offences Against the State Act 1939 was held to be unlawful because the original period of detention had expired before the court hearing to extend the period of detention had concluded. This judgment has implications beyond the 1939 Act and the detention provisions in section 2 of the Criminal Justice (Drug Trafficking) Act 1996 are also affected.

Amendments Nos. 39 and 403 to sections 10 and 184 of the Bill propose amendments to the relevant provisions of the 1996 and 1939 Acts which will address this issue. The amendments provide that where the period of detention permissible under the relevant provisions has not expired at the commencement of the court hearing for the application of an extension of the detention period but would expire during the hearing the period shall be deemed not to expire until the application for an extension has been determined. The Garda will continue to be obliged to bring the suspect before a judge before the detention period expires and in this way no appreciable increase in time spent in Garda custody will result from this amendment. The approach I have adopted in my amendments goes no further than what is necessary to rectify the problem that arose. Deputy O'Keeffe has tabled amendments Nos. 40 and 405, which are similar in substance. While I accept the principle behind these amendments, I prefer the drafting of the Parliamentary Counsel.

Amendment No. 39 amends section 2 of the 1996 Act by inserting a new subsection 7A which provides that notwithstanding subsection (2), which allows detention for a period of up to 48 hours, and subsection (7), which states, in order to avoid doubt that the maximum period of detention allowed under section 2 is 168 hours excluding rest periods, where an application is made under subsection (2) for a warrant authorising the detention for a further period of a person detained under that subsection, and the period of detention under that subsection has not expired at the commencement of the application but would, but for this subsection, expire during that hearing, it shall be deemed not to expire until the determination of the application.

Amendment No. 403 amends section 30 of the 1939 Act by the insertion of a new subsection 4D, along the same lines as new subsection 7A of the 1996 Act. A consequential amendment is necessary to section 30A of the 1939 Act. Section 30A which was inserted by the Offences against the State (Amendment) Act 1998 provides for the rearrest of a person who has been detained under section 30. Section 30A(2) provides for the application of section 30, subject to certain modifications including that subsections 4, 4A, and 4B do not apply. It is necessary to amend this subsection to provide that the new subsection 4D does not apply either. Paragraph (b)(i) of my amendment achieves that end. Paragraph (b)(ii) is simply a restatement of subsection (3) of section 184 of the Bill. I commend these amendments to the House.

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