Michael McNamara (Clare, Independent) | Oireachtas source

I listened carefully to this debate and to the reasons cited for introducing this Bill. Obviously, it has been well reported in the media that the High Court struck down the existing practice, or at least found it lacked a lawful basis. We are now proposing to introduce this system on exactly such a basis. I am convinced it is a considerable waste of Garda time not to have a presenting officer. I am not convinced at all, however, that a return to the status quois not an equal waste of Garda time. We have this great habit in Ireland of commissioning reports. The Minister of State's Department, apart from the Department of Health, is probably one of the main culprits contributing to global warming in this fashion by commissioning reports. I refer to all the energy it takes to compile a report and then to print and publish it so that it can then sit on a shelf. Even more energy is probably used then because it likely gets dusted every once in a while. These reports remain on the shelf, though, and nothing happens with them.

We have a report, The future of Policing in Ireland, about which there was much fanfare at the time. It was published in September 2018 and recommended that this idea of a presenting officer be abolished and replaced with a national prosecutorial service or an extension of the existing State Solicitor's office. The report recommended that all "decisions should be taken away from the police and given to an expanded state solicitor or national prosecution service". I refer to decisions on whether to prosecute and the prosecutions themselves. The report also noted the "Gardaí in charge of prosecutions may not be trained to the level of the opposing defence lawyer[s]". This might have been something the Minister of State encountered himself when he was in the District Court. It was also noted in the report that, "Some Gardaí have undoubtedly become skilful prosecutors through experience, but this should not be their job and it does not justify taking them away from front line duties."

This is the most important point in this context. If we have gardaí who are, essentially, prosecutors, then they are not out policing in the community. We have other people who are trained as prosecutors and who go through universities etc. to become prosecutors. Those people could easily be carrying out that function. Gardaí, of course, also have extensive and specialist training they cannot use because they are doing a job they are not trained to do. The idea behind this Bill is we are going to save Garda time by, essentially, wasting more Garda time until we get to the point of being able to draft a Bill that will save Garda time. That is a bit convoluted. It is a convoluted way of saying this Bill seems to be a waste of time and we are going to end up back where we were, which is not where we wanted to be, but this is happening because the court decision was made more quickly than was anticipated. It is a case of what is another year of waiting for a report to be enacted in the Minister of State's Department.

Before the recess, we brought in legislation that rolled over emergency measures to allow people to drink outdoors. We are only doing that, of course, until the consolidated legislation comes in when we will deal with it all. Everyone had a great chuckle in here, however, about when that might be. People guffawed and agreed we would probably never see that legislation. Therefore, we continue with this farce that it will just be one more piece of legislation that will be rolled over annually. This Bill is in that vein. Contrary to what is being claimed, this Bill is going to continue the practice we have referred to. It is not one that is necessarily wasting Garda time per se, because the role being carried out by those members of the force as prosecuting officers is necessary and better than the alternative that would exist after the High Court judgment in the absence of proper amending legislation, which would see numerous gardaí having to go to court to give the evidence that one presenting officer could do. It is, however, still not a solution.

It is four years after The Future of Policing in Ireland report was duly received by the Minister of State's predecessors in the Department and the by the then Joint Committee on Justice and Equality. I presume there was some fanfare and that someone got photographed with the report and that it was a great day out.

However, at some point it could be about amending the legislation and system. Apart from the waste of Garda time, there is a further problem with the fact that the presenting officers are gardaí. It leads to an impression one might have, if one came from another jurisdiction, that these are Garda courts rather than independent courts because gardaí are making a decision on whether to prosecute and gardaí present evidence, as opposed to merely giving evidence of what they have seen or what their policing duties were. Rather, they are in uniform as gardaí. There might have been a time when it was intended that they might look like Garda courts, but we have moved beyond that in the administration of justice. Certainly, most countries have done so. We are almost unique in retaining this system. More serious consideration needs to be given to this and a more profound change needs to be introduced than that which the Bill proposes.

I want to discuss how we do justice in Ireland. I want bring up a decision of the Garda ombudsman, relating to a protected disclosure under the Protected Disclosures Act 2014. The Act is an unusual creature because if a protected disclosure is made to any of the various Government Departments, guidelines are to be issued. There is an expectation that there would be an investigation into the subject matter of the protected disclosure. In this instance, a former member of An Garda Síochána made a number of rather disturbing complaints. One related to a prosecution in the Special Criminal Court.

We will, of course, come to the Special Criminal Court in about a week's time in the House and it will be put up to us to again roll over the legislation. We had a committee chaired by a former member of the Supreme Court and former Attorney General, no less. In those circumstances, it might be expected to be somebody who would have a fair understanding of how the prosecution of serious offences works and the risks inherent in not having the possibility of non-jury courts. Nevertheless, the committee found that in respect of the operation of the Special Criminal Court, the fact that one could not challenge a decision of the DPP to refer the matter to the Special Criminal Court was legally problematic. His judgment was borne out because it has been subsequently criticised by various UN tribunals over the years.

Notwithstanding all of that, including the reports, the commissioning of a report and the report being published, here we are. I believe there is another independent body. If one does not like the first independent body, one can get another one. When Deputy Charlie Flanagan was Minister for Justice, the votes were looking tight at one point before Sinn Féin decided it would abstain on this issue. He was going to commission another independent body to examine the court, which gave Sinn Féin the opportunity to abstain. I have not heard about the report since, but I presume there are independent experts driving around the country and maybe even taking evidence. God love us if they are taking evidence, because why would anybody waste his or her time giving evidence to a group like that knowing what happened to the last independent group? When it came up with a recommendation that the Department of Justice minions did not like, the report was filed with all of the other reports, including the report on policing we are discussing today.

The case I refer to concerned the prosecution of two subversives, as they would have been called then. They might now be called politicians. Nevertheless, my objection to the Special Criminal Court does not change depending on who is being tried or how one views their offences; the principle is that people are not able to challenge the decision to try them there. Two persons were apprehended in Clare and prosecuted in respect of a bank robbery. The garda to whom I refer made a protected disclosure that he took a statement from a witness. The accused were found guilty in the Special Criminal Court.

The garda alleged that the statement used in court was a very different one from the one he took, and involved the use of marked notes in a bank robbery. Essentially, the two people concerned were accused of stealing money to fund the activities of the IRA. A witness gave evidence to this particular garda that she could not say that there were any marked notes or could not identify the marked notes in question. She was interviewed by a subsequent garda and changed her mind. This evidence was part, but very far from all, of the evidence which was adduced against the accused in the Special Criminal Court, and who were subsequently found guilty.

The garda who gave the evidence was involved in the Shergar investigation. As the House will be aware, a certain amount of ransom money was put in a boot of a car and subsequently went missing. While £80,000 is still a lot of money, it was a vast sum of money in the 1980s in Ireland. The official Garda line would suggest there is very little cover for all of this. A branch of Ulster Bank was opened and £80,000 was taken from it. All of this happened without the involvement of any senior management, An Garda Síochána was led to believe.

Money went missing and somebody had to carry the can. One garda was fired. Disciplinary proceedings were brought against him and he was found guilty on the majority of charges.

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