Michael McDowell (Dublin South East, Progressive Democrats)

I move amendment No. 102:

In page 30, after line 47, to insert the following:

"31.—(1) The Minister may make regulations providing for the administration of cautions by members of the Garda Síochána to persons in relation to offences.

(2) The regulations may include provision for—

(a) the form of caution to be administered to a person—

(i) at any time before the person is charged with an offence, on being questioned by a member of the Garda Síochána in relation to the offence,

(ii) when the person is being charged with an offence or informed by a member of the Garda Síochána that he or she might be prosecuted for it, or

(iii) in any other circumstances in which a caution is required, and

(b) the procedures that are to apply in circumstances where a person to whom a caution has been administered is to have the caution withdrawn and a different caution administered to him or her.

(3) Regulations under this section may provide for different forms of caution to be administered to a person in different circumstances and in different classes of cases.

(4) A failure on the part of any member of the Garda Síochána to observe any provision of the regulations shall not of itself render that member liable to any criminal or civil proceedings or of itself affect the admissibility in evidence of anything said by, or the silence of, a person to whom subsection (2)(a) applies.

(5) Regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations.

(6) Every regulation made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.".

This amendment inserts a new section in Part 4 of the Bill. That part deals with the circumstances in which a court may draw inferences from a person's failure to account for certain matters, or matters which he or she fails to disclose and on which he or she later seeks to rely on in court. The new section provides that the Minister may make regulations providing for the administration of cautions by members of the Garda to persons regarding offences. By doing so, it implements a recommendation in the Hogan report that what amounts to a code of conduct for the questioning of suspects by members of the Garda should be governed by regulations other than the judges' rules, which first appeared in 1912.

The review group took the view that while it is true that the rules contain a good deal of practical common sense worth preserving, an overhaul and re-examination of the rules is overdue. This is particularly the case having regard to provisions in Part 4 of the Bill, which expand the circumstances in which a failure to answer a question may give rise to inferences. The proposed regulation-making power also allows the Minister to set out the procedures that are to apply in circumstances where a person to whom a caution has been administered is to have the caution withdrawn, or a different caution administered to him or her.

It is also necessary to have regard to the amendment that I intend to bring forward on Report Stage, concerning the need for the Garda Síochána to make a contemporaneous written note of interviews with suspects. My proposal stems from a recommendation of the Hogan report and is the type of practical recommendation that can be implemented without delay. In circumstances where interviews are being routinely recorded, it makes little sense to hinder the flow of a Garda interview by the need for the interviewing gardaí to transcribe the full interview into manuscript. This amendment will override the requirement currently in the judges' rules that a written note be made. A written manuscript will be required only where an interview is not being recorded. That will only arise where the suspect has requested that the interview should not be recorded. That change will require an alteration to the form of caution contained in the judges' rules. This can best be achieved by means of the proposal before us, which allows the Minister to make regulations governing the form of caution to be used by the gardaí.

Deputy Howlin's amendment seeks to insert a new subsection (4) in the new section. My amendment in subsection (4) provides that the gardaí will not be liable in civil or criminal proceedings by virtue alone of a failure to observe provisions in the regulations. The Deputy's amendment will repeat that.

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