Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)

I move amendmentNo. 28:

In page 10, line 15, to delete "may" and substitute "shall".

I argued this point before and the Tánaiste responded so I will not go into major detail. With regard to amendment No. 28, section 6(9) states:

The court may, if it considers that publication of any examination of the applicant in relation to the statement or any part of it or of any submissions made to the court may prejudice the applicant's right to a fair trial, by order direct that no information relating to the examination or submissions be published in a written publication available to the public or be broadcast.

The phrase, "The court shall" is more appropriate. If there is any chance that a publication would prejudice a trial a court must definitely prevent it. Amendment No. 29 has the same intent. We also argued the other matters on Committee Stage or during recommittal to Committee Stage, I cannot remember which.

Amendment No. 31 proposes to delete section 7 which provides that the opinion of a member of the Garda Síochána should be given greater authorisation or standing than the opinion of somebody else with regard to a bail application. An opinion is not evidence in such a case because it is not cross-examined and I am not sure whether it is under oath. Until recently, an opinion had standing in court proceedings during which the defence and the prosecution can argue the point and where it is stated under oath. A judge then came to a decision based upon evidence supporting the opinion, such as material relevant to the case, video footage or other witnesses rather than based on the opinion of a member of the Garda Síochána who may not be tied to the case, does not know the accused and does not need to know the full details of the case but must be of a certain rank.

This presumes those at the rank of chief superintendent would never lie, be vindictive or ensure somebody did not remain at liberty. Events in Donegal and elsewhere in the not too distant past show gardaí are similar to the rest of society and are not beyond reproach. We place great trust in the Garda Síochána to operate professionally. We should not include a section which states that the opinion of a chief superintendent is above that of others until the opinion is given in a court of law as part of proceedings against somebody rather than during bail proceedings. I am not alone in questioning this section and the raised status given to an opinion, in this case that of a Garda superintendent. The Human Rights Commission queried this in its observation on the Bill, as did the Irish Council for Civil Liberties.

As far as I understand it, the section does not explain the extent to which an accused has the opportunity to cross-examine opinion evidence. On past occasions when opinion evidence was used, privilege over the information on which that opinion was based was claimed by members of the Garda Síochána which meant the defendant did not have an opportunity to mount a defence. This matter is raised with regard to bail and serious crime. When one considers the length of time it takes for cases to reach court it is a serious matter to deprive somebody of their liberty for two or three years. It might be different if cases reached court and were sorted out much quicker. On the balance of justice we could then accept such a ruling.

We should not go down this road. It is a similar power to that given to the Garda Síochána under the Offences Against the State Act, which was abused. Over the years, changes were made whereby gardaí had to produce additional evidence. However, the most recent instance I recollect in which this type of privileged information was used was where a Garda superintendent swore it was his opinion that somebody was a member of the IRA. When asked to prove it, he initially refused and then stated that his opinion was based on Garda files. The court forced him to produce the files but they were only made available to the prosecution and the judges. The defence had no opportunity to challenge statements, hearsay and other material contained in the files. It made a mockery of the concept of a fair trial. Will this provision take us down the same road? Will the Tánaiste again consider what is intended or what could be the result of section 7?

See this speech in context