Brendan Howlin (Wexford, Labour)

The Tánaiste tabled an amendment to this section which captures the argument I made on Committee Stage to delete the word "considered" because the original draft added a great deal of confusion. The Tánaiste has redrafted that amendment. Other than dropping the word "considered" in the new section 2A(1) I am not sure what other changes are necessary.

I made a detailed submission on Committee Stage based on advices presented to me and published advices from a distinguished former Attorney General that the provision was unconstitutional. I am not happy about this. The provision that a member of the Garda Síochána not below the rank of chief superintendent can give as evidence that he or she believes it to be the case that refusal of bail is reasonably necessary for the purpose of a person not committing an offence does not sit well with me. Concrete evidence should be presented and the garda should state the reason he or she believes it and convince the judge of it. This tramples on the discretion of the judge who should have all the evidence adduced before him to show compelling reasons. There should not be simply opinion cases.

I know that when this State was under very serious threat we had a similar provision to allow the protection of the integrity of the State and its fundamentals, which provided for people to be incarcerated on the basis of opinion evidence from senior police officers. This would take such an idea and transpose it into a different category.

This has certainly recommended itself as part of the armoury to prevent people who are in real danger of recommitting offences from walking free but I do not believe it is the way we should go. Senior gardaí should go into court and point out the evidence sheet against a person, indicating the chances of a crime being committed again. The notion that a court is obliged to have regard to a mere statement as evidence is not a principle I am happy with. On balance, the more I have thought about it, the less happy I am with this section.

Amendment No. 34 in my name is now captured, as was promised by the Tánaiste in his response on Committee Stage. If I do not agree with the paragraph, it at least makes more sense now in my judgment, the word "considered" having been dropped.

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