Mattie McGrath (Tipperary South, Independent)

I am delighted to have the opportunity to speak on this Bill. I thank the House for allowing Deputy Finian McGrath and me to share time.

The aim of the Bill, as the Minister stated, is to address the implications of the judgment of the Supreme Court in the case of Ali Charaf Damache v. the Director of Public Prosecutions, Ireland, and the Attorney General, delivered on 23 February 2012. That was not very long ago. I compliment the Minister and his officials on bringing forth this legislation in an effort to close the loophole.

In the case in question, the court found that the search warrant provision in section 29 of the Offences Against the State Act 1939 was unconstitutional. As a consequence, there is a gap in the State's armoury to tackle the threat posed by terrorism and other serious crimes. We must remember terrorism has not totally disappeared. The incidence of serious crime is increasing and we must be ever vigilant.

This legislation is progressing quickly. All Deputies should support this Bill. I have supported An Garda Síochána my entire life and I have also been involved in community alert schemes. I compliment those who are involved in community alert and neighbourhood watch schemes.

No police force can provide security without the support of the people. It would be a pity if that ideal were lost. This is why I am concerned about the closure of rural Garda stations. Officials might argue they are not needed, but people must know where they can find a friendly garda with whom they can chat about the match or whatever. In this way, a lot of helpful information can be gleaned. Mobile patrols will never replace that relationship. Many of the best gardaí have operated under a community ethos because it is important to know one's community. The same can apply to religious beliefs and to politics. We have to know our electorate because there is no better way to gain their support.

The warrant at the centre of the court case in February was issued by a superintendent who was not only in charge of the investigation but actively involved in it. The warrant authorised the search of an individual's home. This individual was arrested for the offence of conspiracy to murder and was subsequently prosecuted on a charge of making a telephone call of a threatening character. As the courts found, however, a mistake had been made. The Minister stated there is no suggestion of impropriety on the part of any member of the Garda involved in the investigation and that the superintendent who authorised the warrant did so in good faith within the law as it was understood at the time. That is the problem, however. Did he understand that he should not sign the warrant given his direct involvement in the investigation? This is why a different superintendent should have been asked to examine the facts coldly, calmly and collectedly. The superintendent in this case was anxious to deal with a serious situation but a superintendent from a different division would have been able to evaluate the case from a distance. The case submitted on behalf of the applicant was that section 29 of the Offences against the State Act 1939 was repugnant to the Constitution because it permitted a member of the Garda Síochána who had been actively involved in a criminal investigation to determine whether a search warrant should issue. Did the superintendent in question fully understand the law? I accept he may not have had time to apply to the courts for a warrant, but that would have been the preferred option because we depend on the Judiciary to be fair and impartial.

The Bill acknowledges that issuing a warrant to search a house is a big decision because one's home is one's castle. It is disturbing for families if a number of gardaí can search their homes uninvited. This must always be the last course of action. While I fully support the Garda in tackling all kinds of crime, they should be considerate when searching premises. This is why it is important that a different superintendent should issue the warrant.

In the period since the judgment was handed down, the Minister's efforts have been directed at seeking to ensure the Garda has all the legislative back-up it requires to investigate terrorism and other serious criminal activity. That is the aim of the Bill before the House. I do not believe the Garda has been given the resources and expertise it requires. The retirement of senior officers has caused a significant drain on expertise and knowledge in the force. One of my colleagues has tabled a priority question to the Minister for Public Expenditure and Reform on this issue. Many parts of the public service are rehiring individuals who left on the early retirement scheme. Is this happening in An Garda Síochána, where it should be happening? That knowledge is vital. I have met a number of senior gardaí who did not want to retire but were forced to do so because of age and service. At a time when recruitment of young gardaí has been stopped, we should be trying to hold on to their expertise and experience.

A victim's charter may exist but is it being adhered to? As the previous speaker asked, where are the victims? How many more Eugene Moloneys will we see in this country because we do not have sufficient resources to police our streets? Such is our culture of late nights and alcohol consumption that people cannot go home after a night of fun without disturbing anybody else. The unprovoked attack against that journalist as he was on his way home was obscene. We must increase sentences. If a direct physical attack results in death, it is not right that we charge people with manslaughter. We have to be effective. Prisons should not be holiday camps. I am all for restorative justice but the punishment must fit the crime. Above all, as was mentioned in respect of the psychiatric patient discharged in Donegal, we cannot permit victims' families to live in fear that something similar might happen again unless the perpetrator has gone through rehabilitation or has changed while in custody. It is not fair that people should be afraid of meeting a former offender in a local town or village.

I support the Bill and wish it a speedy passage through the Dáil. I hope it will block the loophole it seeks to address. However, its scope is limited to future Garda investigations. There is no legislative option available to the Minister to address existing cases where warrants under section 29 of the 1939 Act may be at issue. The Oireachtas cannot retrospectively make constitutional that which the Supreme Court has declared to be unconstitutional.

This is a short Bill which contains four sections. It replaces section 29 of the 1939 Act with a provision designed to conform to the Supreme Court judgment. It requires applications for search warrants to be made to a judge of the District Court where possible. In limited circumstances a garda of superintendent rank or higher may authorise a search warrant where circumstances of urgency render it impractical to apply to the District Court. The issuing officer must be independent of the investigation. It is important gardaí are made fully aware of this requirement.

The house of a former colleague was searched recently and the individual was arrested. It was alleged that he had defrauded the State of sums of money.

If that is the case, he should be punished but he is innocent until proven guilty. Why was a posse of members of the media waiting at the Garda station when he was arrested? That was scandalous, outrageous and should not take place. Are media outlets applying pressure on the Garda Síochána to take certain actions? Is the Minister able to stand up to the media or are they too powerful? While I do not wish to condemn all media, everyone is entitled to his or her day in court and his or her good name. Individuals and their families must be allowed to live their lives without major intrusion. I contrast the case to which I referred with the failure to arraign a single banker, despite the billions of euro involved. We also had the case of a certain gentleman being telephoned to make arrangements to come to a Garda station by appointment. I will not refer to the person by name but everyone is aware of the case. In another case, a person's house was ransacked on the basis of an alleged offence involving €1,800. Let no one misinterpret me because I do not condone any offences. Even if only €1 is involved, an offence is still wrong.

Balance, fair play and, above all, transparency are required. We must ensure warrants are properly issued and executed. I do not know who issued the warrant in the case to which I refer or if the matter came before a District Court but I have been a victim of similar behaviour. A summons was served on me at 11 p.m., which is an inappropriate time to visit any home and especially so in my case as I had a young child of 11 years at the time. The summons served on me referred to allegations of which I was subsequently cleared by a jury. The case was badly handled and characterised by bullying. Two police cars and a number of gardaí arrived at my house as if I was a criminal. This type of bullying, which is taking place, must be taken into account. A small number of gardaí do not behave properly. However, I support the vast majority of gardaí, as I have demonstrated by supporting this Bill which will give them the tools of the trade. The small minority must be weeded out.

Last November, I referred in the House to a case involving the theft of machinery from a yard during a repossession by a bank. The institution in question has since returned the machinery and apologised for an outrageous injustice, which was perpetrated with gardaí present. A complaint was made, an investigation carried out but no prosecution followed. The bank returned the machines, apologised unreservedly to me and the family in question and sent a representative to visit the family. However, mistakes were also made by the Garda Síochána. While I do not propose to engage in a witch-hunt against any member of the force, redress had not been made because prosecutions have not followed in a case that involved breaking and entering a premises in the middle of the night. This does not reflect good practice. The chief superintendent and local superintendent in Clonmel gave me a good reception when I met them to discuss this issue. While they are embarrassed by what occurred, it should not have happened. Anybody can make a mistake. I concur with the old adages, "There but for the grace of God go I" and "Any man who never made a mistake never made anything". It is not difficult to offer an apology. If wrongdoing or heavy-handedness on the part of the law is proven, it should be acknowledged, efforts should be made to put it right and an apology offered. It is important, therefore, that in introducing the Bill we ensure there is no repeat of the court case which found the current law repugnant to the Constitution. Fair play is vital in this regard.

To put on my community alert hat, having a local garda who knows local people on the beat is the best approach because he or she will be able to obtain information. I am not referring to informers and so forth but it behoves all of us to protect our communities and families. We should look out for others by noting suspicious activities and we should not be afraid to report them. As the previous speaker noted, respect must be mutual.

Community gardaí in Clonmel and Cahir are doing tremendous work but are being sucked into other duties because Garda numbers in the area are low. I appeal to the Minister to address the issues of the Garda station in Clonmel and, more important, Garda strength in the town. Clonmel used to be the largest inland town in the country and is now the second largest inland town but this is not reflected in Garda numbers. I do not say this to frighten anyone. Gardaí in the town, who do a hard job under Superintendent Courtney, need resources, the tools of the trade and half-decent accommodation. One can have all the laws in the world but they will be ineffective without manpower and vehicles. The requirement to withdraw Garda vehicles once they have reached 300,000 miles is silly. One car could be a wreck after 300,000 miles, while another could be in perfect condition. We must be realistic in these financially constrained times. We must ensure the Garda Síochána have sufficient resources, legal support and, above all, community support. Without these, policing is impossible.

I support the Bill and hope it will be speedily passed because it is needed to plug a loophole. I look forward to working with the Minister on it.

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