Michael McDowell (Dublin South East, Progressive Democrats)

That is evidence of his opinion, as evidence cannot be given as to a future fact in the same sense that primary evidence can be given of something seen by a person.

I emphasise that it is already the case that evidence of opinion is admissible, which is emphasised in subsection (6), which states "Nothing in this section is to be construed as prejudicing the admission in proceedings under section 2 of other evidence of belief or of evidence of opinion", whether they are tendered by a member of An Garda Síochána or any other person.

The last subsection is one I wished to draw to the attention of the House. It states "Nothing in this section limits the jurisdiction of a court to grant bail." That, taken with the other amendments tendered here, makes it very clear that no court is obliged, as a result of a chief superintendent giving his opinion, to withhold bail on that fact alone. It is a matter for the courts, which is what the Constitution envisaged.

One may therefore ask why subsection (1) should be included at all, given that a sergeant involved in a case can give evidence of opinion etc. Very frequently it is argued that a local detective comes head to head with a local burglar, determined to put him behind bars. The purpose of this amendment is to allow senior members of the Garda Síochána to express their considered opinions, if I may use the word "considered". I accept completely the point that gardaí are not infallible because they have attained senior rank. Trusted and senior members of the force will be allowed to express their considered opinions on the basis of all the facts known to them, by definition including hearsay, having thought about those facts. Such serious opinions, which will have a certain weight by virtue of having been tendered by a senior member of the force, will be admissible. A court will not view the expression of such an opinion as being part of a grudge match between a detective and a local baddie. The judge will bear in mind that a garda has togged out in court in circumstances which are not customary to add his voice to the issue under consideration. If the court deems it appropriate, some weight may be attached to the fact that a senior member of the force has come to court to express his opinion.

If I were a judge, I would consider the possibility that a hostile and unpleasant member of the Garda Síochána might have a gripe with a person he arrested last night. If I were hearing the bail application of such a person, with all the relevant documentation in front of me, I would take into consideration the appearance in court of a chief superintendent. Judges will use their common sense to appreciate that a chief superintendent is not coming to court because he has nothing better to do that morning. Chief superintendents, who are senior members of the Garda with serious responsibilities, are not normally found in courts arguing the toss on bail applications. If such a person comes to court to tender an opinion, he is liable to be cross-examined on his opinion. If I were a judge, I would not think the garda in question had a grudge and was trying, for that reason, to frustrate an ordinary decent criminal's pattern of low level behaviour by keeping him behind bars. I would understand that the matter in question was a serious one. That is why this provision has been included.

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