James Browne (Wexford, Fianna Fail) | Oireachtas source

I move: "That the Bill be now read a second time".

The Bill which I am proposing on behalf of the Minister for Justice, Deputy McEntee, is short in length but very important. It is necessary to address an urgent lacuna in the law regarding the legal basis for Garda court presenters. The specific purpose of the Bill is to establish clearly a right of any member of An Garda Síochána to conduct a prosecution, whether or not that member initiated the prosecution. It restores the system of court presenters which existed prior to a determination of the High Court on 31 May.

The circumstances that the provisions are designed to address are of an exceptional nature. They arise from a judgment in a case stated from the District Court to the High Court. The legislation will restore the status quofor the Garda court presenters, allow the District Courts to function effectively and address the needs of accused persons and victims to have their cases heard before courts of summary jurisdiction. Consideration is being given to appeal the judgment.

The amendment will come into effect on enactment and applies to prosecutions currently in progress as well as future prosecutions.

First, I will outline the background to the Bill and why there is a need for emergency legislation. In a judgment in a consultative case stated from the District Court in the case of the DPP at the suit of Garda Liam Varley v. Ciarán Davitt, the High Court found there to be no legal basis underpinning the system of Garda court presenters.

Court presenters are members of An Garda Síochána who specialise in court work in the District Court dealing with important procedural matters including evidence of arrest, charge and caution in first appearances in court, remands, bail applications and presenting a summary of evidence in guilty pleas. The practice of allowing separate Garda members to perform these roles is well established and widely relied upon in the State. It enables more efficient use of police resources by reducing the need for individual gardaí to attend court to prosecute every criminal offence they detect. These prosecutorial functions are carried out on behalf of the DPP under section 8 of the Garda Síochána Act 2005. Section 8(1) of the 2005 Act removes the right of a Garda to prosecute as a common informer, and section 8(2) supports this by providing that Gardaí may bring summary prosecutions only in the name of the DPP.

Section 8(2) of the Garda Síochána Act 2005 states that: (2) Subject to subsection (3), any member of the Garda Síochána may institute and conduct prosecutions in a court of summary jurisdiction, but only in the name of the Director of Public Prosecutions.

In the judgment in the Davitt case, the High Court held that the ordinary and natural meaning of the word "and" in the phrase "institute and conduct" in section 8(2) is that the word must be read conjunctively. To state it another way is to say that the same Garda member must perform both actions - "initiate" and "conduct". Accordingly, a Garda member has a right of audience to conduct any proceedings that he or she has instituted, but the section does not confer a right of audience on a Garda in any other proceedings.

Given this interpretation of section 8(2) of the 2005 Act, the court held that order 6, rule 1 of the District Court rules, which confers a right of audience on all members of An Garda Síochána and not just the Garda who initiated the prosecution, is an impermissible amendment of the 2005 Act concluding that the rule is ultra viresthe enabling legislation and could not be relied on by the District Court judge in affording a right of audience to a Garda who had no involvement in initiating the prosecution. The net effect of the judgment is that no Garda, acting in a case other than one where he is the named complainant may address a court as presenter. This includes bail applications and guilty pleas. The court presenters, therefore, are now no differently positioned than civilians when dealing with a court. In such circumstances the presence of a solicitor or counsel, or the actual prosecuting Garda is a prerequisite in all District Court cases for the time being. On 2 June the High Court judge clarified that the judgment does not take effect until the final orders are made. The case was adjourned until 16 June.

So far, I have set out the legal implications of the judgment. Now I turn my attention to the impact on the actual workings of the District Court following the judgment. The ruling has immediate and serious implications for the conduct of criminal prosecutions in the State as the system of Garda court presenters is well established and widely relied upon across the State. The contingency measures put in place after the judgment issued and prior to the clarification made by the judge as to the effect of the judgment, and the ensuing disruption in that period, give an indication of the impact the judgment will have if remedial legislation is not enacted before the judgment comes into effect.

In Dublin, the DPP had to arrange for court solicitors to be present at all sittings of the 13 District Courts and instructions issued to State solicitors outside of Dublin to cover courts, where possible. The instituting Garda member was also to be present wherever possible. Further mitigating measures were also considered including the use of counsel from the DPP's High Court bail panel to cover the Dublin districts with ongoing liaison with Garda headquarters to ensure that Garda directives were in-line with the approach being taken by the DPP.

In a single day, 2 June, over 2,131 cases were before the District Courts across the country, and notwithstanding the measures outlined above, hundreds of cases had to be adjourned. In one court alone, 130 cases had to be adjourned. Once the judgment comes into effect, this impact will be magnified for each District court, in each county, for each day that the legislation is not amended.

In addition to the substantial impact on the work of court and State solicitors and prosecuting gardaí, the adjournment of cases has caused significant distress and upset to victims and accused persons. There will be a knock-on effect in terms of delays in preparing books of evidence in other potentially more serious trials, work that would ordinarily be undertaken by deployed staff from the Office of the Director of Public Prosecutions, DPP.

The judgment also gives rise to a risk of Article 40 applications by persons remanded in custody or refused bail in the District Court where the DPP was represented by the court presenter and not a prosecuting Garda member. Article 40 of the Constitution permits persons to apply to the High Court for release on the basis they are unlawfully detained. Mitigating arrangements cannot be sustained over the long term from a cost and effectiveness perspective, and there remains a risk of Article 40 applications to the High Court.

I will now briefly outline the contents of the Bill to the House. The purpose of the Bill is to establish clearly a right for any member of An Garda Síochána to conduct a prosecution, whether or not that member initiated the prosecution, restoring the system of court presenters that existed prior to this judgment. A short three-section Bill is proposed that amends the Garda Síochána Act 2005, to amend "institute and conduct" in section 8(2) in order that it reads "institute or conduct" and provide that the prosecution may be conducted by the instituting Garda member or any other member. The amendment will come into effect on enactment and applies to prosecutions currently in progress as well as future prosecutions.

That is where we are at and I look forward to hearing comments from the Deputies.

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