Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

This Bill seeks to extend the powers of audience that members of the Garda have before the District Court. Although it is a very short Bill, its brevity should not disguise the fact there is a very complex and lengthy history to the rights of audience that police officers have had before our courts, particularly for minor offences. Prior to independence, it was the case that in respect of all minor offences and some indictable offences, members of the RIC - the constabulary - were the people who were able to give evidence before the courts. The reason they were able to give that evidence was not any statutory power they had but that they had this common law power to give evidence as common informers. The reason they were common informers was they were members of the public and they were in a position to give this evidence before the court.

That was a widespread practice before independence. In fact, it became too widespread and there was criticism of police officers as they then were for effectively becoming advocates before the court. It was slightly different in Ireland where the law officers encouraged it. There were statements to members of the RIC that they should examine and cross-examine witnesses and, in effect, be witnesses. Following independence, all the prosecutorial powers were transferred to the Attorney General of the Irish Free State under the Criminal Justice (Administration) Act 1924. Section 9 set out how the powers of prosecution were to operate in respect of indictable or serious offences but also in respect of minor offences. It is clear from section 9(2) that the power of members of the constabulary to prosecute as common informers continued and was transferred over to the new force, An Garda Síochána. The power for members of An Garda Síochána in this new State to prosecute as common informers continued. It also continued even after the establishment of the Office of the Director of Public Prosecutions, DPP, in 1974. Even though many offences were prosecuted at the suit of the DPP, and before that the Attorney General of the Irish Free State, predominantly gardaí were prosecuting as common informers. We got full recognition and a better understanding of that in 1977 in the Supreme Court decision in the case of DPP v. Roddy. Mr. Justice Griffin stated that gardaí who are prosecuting are prosecuting as common informers. He looked at section 9 of the Criminal Justice (Administration) Act 1924 and noted that the power of gardaí to prosecute as common informers had not been removed.

We are here today because of the recent decision of Ms Justice Bolger in the High Court. It is important we are aware of what happened and why that case was stated to her for her consideration. It related to a minor drugs prosecution in a District Court. A garda was prosecuting but the initiating garda who had arrested and brought the case was not in court. The replacement garda was there and that garda wanted to be able to give evidence if the accused pleaded guilty or wanted the case to be adjourned if that was not the case. The District Court judge was asked by the solicitor representing the accused whether she would state a case. She did state a case and that was whether the substitute garda had a right of audience before the District Court in respect of that prosecution. Ms Justice Bolger answered in the negative and said there was no right of audience. Her reason was she looked at section 8(2) of the Garda Síochána Act 2005. That legislation in effect removed or codified the common law. It provided a statutory basis upon which gardaí could prosecute minor offences in the District Court. That had been recommended by Mr. Justice Griffin in the 1977 case. However, section 8(2) clearly provides that any member of An Garda Síochána may institute and conduct prosecutions in a court of summary prosecution but only in the name of the DPP.

Sometimes we think we get too worked up about words contained within legislation. However, we are here today introducing new legislation because the word “and” was used in that section. Had the word “or” been used, we would not be here. In the case before Ms Justice Bolger, it was argued by the State that the section should be read disjunctively. That does not make sense because in 2005 when whoever was here used the word “and”, they meant to use the word “and”. Had they meant to use the word “or” they would have used the word “or”. Those who have read the decision of Ms Justice Bolger will see that she very correctly assessed the language contained within the statute and said that if the Oireachtas was going to be deliberate in changing how prosecutions are done in the District Court, it clearly would have used very precise language. She rejected the argument put forward by the State that it should be read disjunctively and the word “or” could be substituted for the word “and”.

Obviously that has significant consequences, which is why we are here. I commend the Minister of State, Deputy Browne, on bringing forward this legislation so promptly. It is an example of where legislation needs to be brought forward promptly. A series of prosecutions are going through the District Court throughout the country at present. We do not want to find ourselves in a situation where every initiating garda has to be in the District Court on a particular date, otherwise the proceedings will be struck out. That would be a miscarriage of justice.

We have to go back to what was contained in the report of the Commission on the Future of Policing in Ireland. It recommended getting the gardaí out of court as much as possible in their capacity as presenters. Sitting in courtrooms is a waste of time for gardaí, ultimately becoming advocates in the District Court. None of us wants that. We want gardaí out on the street fighting crime as opposed to presenting cases. Gardaí will obviously have to be in court to give evidence as witnesses. That is different from the issue of court presenter. I would welcome legislation to give effect to the recommendation of the Commission on the Future of Policing in Ireland. We want presenters in court. We do not want the rules of evidence cut short. Direct evidence will have to be given by gardaí who spot things on a particular occasion but this legislation is necessary.

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