Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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We are dealing here with amendments Nos. 57 to 59, inclusive which, as I started to say last night, concern introducing CCTV into Garda stations which is not confined to making video records of interviews in interview suites, as the Minister calls them. That is fine and I welcome the news the Minister has given us over the past year that all Garda stations with interview suites will soon be kitted out with video recording machinery. I think he said this has been achieved in 90% of stations.

These amendments go beyond that initiative because of the allegations made against the Garda over the years of brutality, assaults, misconduct and misbehaviour. Many of these allegations have afterwards been discovered to be correct and some not. In the interests of protecting both those who are held in Garda stations and the members of the Garda Síochána from mischievous claims the new technologies available at a relatively low cost make it possible to have CCTV in Garda stations covering the access, hallways, cells and yards where many of the attacks on suspects have occurred. That should be done as quickly as possible. If it is possible to fit out the fleet of Bus Átha Cliath with CCTV I do not see why something similar cannot be done in Garda stations.

That is the extent of my three amendments. I hope the Minister will agree that they are reasonable and will be cost-effective, considering that this will cut out any possibility of somebody bringing a false action against members of an Garda Síochána. It might also discourage those elements within the Garda Síochána who have been involved in this type of activity as documented in the Morris tribunal. This has emerged in other cases in recent years, for example, in brutal interrogations or the use of excessive force on suspects in Garda custody.

It happened to Dean Lyons, and it has never been clarified why he would admit to something with which he had no involvement. How did he manage to sign a statement he had not written? There are many other questions over that case, and other cases in the public domain, regarding what happened to people who died either in Garda custody or shortly thereafter. The public needs to be sure that nothing untoward would happen in Garda stations. That would add to the efforts of the Minister and an Garda Síochána to regain the confidence of the public.

Michael McDowell (Dublin South East, Progressive Democrats)
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These three amendments aim at the idea that the public areas of Garda stations should be subject to video surveillance. I have no difficulty with the principle of this proposal. If we require, as many District Judges do, licensees of licensed premises which open late to install CCTV, and have it on many buses and the Luas, which goes past my house and which I use, I have no major problem with the idea that there should be CCTV coverage of public areas of Garda stations.

There is a project under way in Pearse Street and Store Street Garda stations putting CCTVs in reception areas and the corridors leading to the cells. The results of that pilot will be carefully considered and inform the debate on the extension of CCTV to the cells. That is an issue on which there are two views, namely, whether every prisoner in a cell should be subject to constant camera surveillance or not. I agree with Deputy Ó Snodaigh that in principle there is no reason a visual record should not be kept of what goes on in the public areas of a Garda station, in the areas leading to the cells and perhaps in the cells, for the protection of everybody involved.

Deputy Ó Snodaigh says it might save the taxpayers some money in respect of claims made against members of the Garda Síochána, which might be so. It might also get to the truth of many of the false allegations against the Garda Síochána as to what did and did not happen, whether people were stone cold sober or falling around drunk when they were arrested, their demeanour and the like. These matters are in the area of "he did — he did not" conflicts of testimony which would be easily resolved by the extension of CCTV. I favour this proposal and it is my intention, unless there is some particular reason arising out of the pilot coverage, why it should not be extended in Garda stations.

I have a slight reservation as to whether it would be a good idea to extend it to every single Garda station in the country because some stations open for only a few hours a couple of days a week to deal with passport applications and driving licence particulars. Installing major CCTV apparatus in these small stations, which could almost be described as sub-stations, might not be an intelligent way to spend taxpayers' money. There is no reason it should not be done in places where people are likely to be frequently brought into custody. I favour it and look forward to the results of the two pilot schemes in Dublin and to a reasoned debate as to whether in-cell surveillance is a good or bad idea.

There are issues of privacy and confidentiality for people going to Garda stations as informants or to make complaints about others who may be worried about CCTV and their discovery through the legal process. We may have to look around a few corners in respect of many issues. It is easy for me to say it is a good idea in principle, but some issues of concern need to be examined as well. We need to consider who visits Garda stations and why they do so. We have to protect the confidentiality of any information that is captured on CCTV. Many people go to Garda stations in diverse circumstances. People who are having problems with their relatives who are psychiatrically ill, for example, or battered wives may require the assistance of the Garda. I do not want to do anything that would have a chilling effect on the relationship between the Garda and the public. I want to be conscious of all the implications of this proposal and to be fair to everybody involved. I have no difficulty, as a general rule, with the Deputy's argument that a video record should be kept of activities in the vicinity of places like banks, which I strongly support.

Brendan Howlin (Wexford, Labour)
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Does the Minister support the banks or the keeping of a video record?

Michael McDowell (Dublin South East, Progressive Democrats)
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To some extent, banks and places of entertainment could do much more videoing and external surveillance in the immediate precincts of their premises to stop cash in transit incidents from taking place. There are some privacy issues. In general terms, I favour Deputy Ó Snodaigh's argument that we should have the keeping of a good record as a medium-term aim. We also need to consider whether the records would have an audio element. Should we record pictures but not sound? I am aware, from my career as a barrister and from cases which have come to light since then, that video footage without any sound was recorded in some instances. In such circumstances, one has to wonder what was actually happening between the two people on screen. Were they having a polite exchange or was one of them threatening to do something awful to the other? When one suddenly sees a flare-up of violent behaviour on screen, one wonders what preceded it. Was one person refusing to so something, or making violent threats towards somebody else? When one sees a sudden eruption of violence, one wonders what exactly was being said by the two people in question. The audio surveillance of Garda stations would probably be considered to be very intrusive. It is a matter of degree.

I do not propose to accept Deputy Ó Snodaigh's amendments. I agree with him, in general terms, that a video record should be kept of what happens in places where people in custody are brought unless there is some very strong reason that should not take place. That should generally be the case. I look forward to learning of the outcome of the two pilot projects. For example, will it be judged that it makes sense to have video surveillance of the corridors leading to cells, but no video surveillance of what happens when gardaí go into those cells with people who have been accused of crimes? Will we move the potential battlefield for swearing matches inside the cell door? Will we achieve anything in such circumstances? Deputy Ó Snodaigh mentioned the Dean Lyons case. As I understand it, Mr. George Bermingham SC is well on the way to finishing his task in that regard. He has finished taking statements from the people involved and is compiling his report. He hopes to complete the report this summer.

A Garda survey that was conducted in June 2005 indicated that 98.1% of interviews, as specified in the 1995 electronic recording of interview regulations, were being recorded. Less than 2% of interviews were not recorded for some reason, mainly because the arrested person declined to have the interview recorded or the room was already in use for another video recording or was otherwise unavailable. As I said the last time we discussed this matter, we are moving towards the universal recording of relevant interviews. It will always be the case that 1% or 2% of interviews are not recorded for some reason.

Brendan Howlin (Wexford, Labour)
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They might be the critical interviews.

Michael McDowell (Dublin South East, Progressive Democrats)
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I know. There are cases in which people who are brought to Garda stations and charged with crimes are told by their cohorts or bosses in crime that they have to demand a copy of the interview tape from the Garda. The crime bosses want the tapes so they can ensure that those who were interviewed did not squeal on other people who were involved in the offence. There are legitimate circumstances in which an accused person is willing to make a statement off tape only. It is not the case that the person's reasons for that are necessarily fanciful or contrived.

Brendan Howlin (Wexford, Labour)
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They should be protected.

Michael McDowell (Dublin South East, Progressive Democrats)
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Yes, but it is not that easy to protect them.

Brendan Howlin (Wexford, Labour)
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If they come out without the tape, that will have the same consequences for them.

Michael McDowell (Dublin South East, Progressive Democrats)
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I appreciate that. If we provide for a mechanism whereby it can be stated that a tape will not be supplied in particular cases, in the interests of the accused person, we will raise the immediate implication that he or she is hiding something from the people who are putting pressure on him to get the tape so they can look at it. It is a difficult question. I do not have a 100% solution to it. If somebody declines to make a statement on tape, it would be desirable, subject to practicality, for there to be a formal and verifiable record that that was what happened. I do not know whether that is practicable, however. Perhaps it would not cause as much difficulty to hold back on that particular tape as it would in the other circumstance.

Deputies should be aware that there are godfathers of crime who will ask a person who has been accused of a serious crime to produce the tape. Such tapes can be ostensibly demanded for legal purposes, but in fact they are used to check that people stayed schtum at the relevant moment and were not too co-operative with the gardaí. That is an infrequent but genuine occurrence, unfortunately. It is not clear to me how we should deal with that. Perhaps Deputies have bright ideas in that regard. It is not clear to me exactly how we can get around this issue.

Jim O'Keeffe (Cork South West, Fine Gael)
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I get a little worried when I find that the Minister, Deputy McDowell, and Deputy Ó Snodaigh of Sinn Féin are virtually at one on an issue.

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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We were originally in the same constituency.

Jim O'Keeffe (Cork South West, Fine Gael)
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I see. A slight shiver goes down my spine when I see it happening. We are looking at a "big brother" area, to some degree. Everything may or may not be recorded. Deputy Ó Snodaigh's amendment states that "all Garda stations shall be internally and externally monitored and recorded by CCTV". That is going an awful long way. The first thing that occurs to me is that it could be quite expensive to install CCTV facilities in this country's Garda stations. I think there are approximately 715 such stations.

Michael McDowell (Dublin South East, Progressive Democrats)
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A fraction of them are used for people who are taken into custody.

Jim O'Keeffe (Cork South West, Fine Gael)
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That is the point. It is obvious that we should be talking about Garda stations which are used for interview purposes. Some serious issues relating to the extent of the monitoring which would take place need to be considered. It is right that witness statements should be recorded. The Minister has raised some legitimate points about the use and abuse of this system by the godfathers of crime. I suggest that this matter does not need to be dealt with by means of legislation. Some practical and administrative issues need to be considered. It is probably an area that should be the subject of a separate and detailed discussion and debate at some stage, possibly at a meeting of the Joint Committee on Justice, Equality, Defence and Women's Rights. At this stage, I am not in favour of the suggestion that "all Garda stations shall be internally and externally monitored and recorded by CCTV". I do not think the case has been made for such an approach.

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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I am glad the Minister agrees with the concept. With the changes in technology, CCTV does not involve such large costs as it did in the past. With secure Internet connections, the equipment is relatively cheap. Most public houses have CCTV cameras installed. I know of one publican living abroad who can watch his pub from his computer, especially when he is on the beach, to see if anyone is up to no good. I am not saying we must go down that road but CCTV is cheaper than it was before. Other issues arise from this provision and the amendment was to ensure there was some debate on it. Practical problems exist regarding audio and non-audio footage.

It is not just the godfathers of crime who demand video tapes from people of their interviews with the Garda. It also occurs at the lower levels with thugs demanding tapes. Two weeks ago, the distraught mother of a young man who had been in custody attended my clinic. She wanted the tape of the interview to protect her young child from being brutalised by a gang which suspected him of passing on information. I informed her she should ask for a copy of the tape as I knew what this gang had done in the past. I have not spoken to her since but I will speak to the Garda on the case. It is not just the godfathers who demand copies of interviews from individuals. We must ensure that what was introduced as a safeguard measure and a useful tool for the courts is not used against people who give information while in Garda custody or may have nothing to do with a case.

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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I move amendmentNo. 59:

In page 29, line 21, to delete "may" and substitute "shall".

This amendment aims to ensure the Minister will make the provisions for regulations concerning certain witness statements which are recorded.

Joe Sherlock (Cork East, Labour)
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Amendments Nos. 60 and 61 will be taken together.

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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I move amendmentNo. 60:

In page 29, line 27, after "retained" to insert the following:

"and

(c) sanctions for any breach of these provisions".

This amendment is to provide for the sanctions of any breach of the regulations by the Garda concerning video-recording interviews. If the machines are not working, no sanction is involved. However, if the machines are not operated on purpose, some sanction must be in place. Amendment No. 61 also relates to sanctions.

Michael McDowell (Dublin South East, Progressive Democrats)
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Failure to record an interview without reasonable excuse and in circumstances where there was a direction by the Garda Síochána that the interview should be recorded would constitute a Garda disciplinary matter. The disciplinary regulations of the Garda would be the appropriate way to deal with the matter.

Brendan Howlin (Wexford, Labour)
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I move amendment No. 62:

In page 30, between lines 2 and 3, to insert the following:

21.—In the case of an accused person tried on indictment for an offence carrying a maximum or mandatory sentence of life imprisonment, who has been acquitted, where at any time following such acquittal the Director of Public Prosecutions comes into possession of significant new evidence which demonstrates that a miscarriage of justice has occurred, he or she may apply to the Court of Criminal Appeal for an order setting aside the acquittal and directing a retrial."

There was some debate on this important matter on Committee Stage. The Minister alluded to ongoing research in the United Kingdom on it. The amendment relates to where new DNA evidence or other compelling evidence comes to light in a case. A correcting mechanism to deal with miscarriages of justice is already in place for those wrongly convicted. However, no such mechanism exists in cases where new compelling evidence comes to light after an individual is acquitted for a serious offence which carries a mandatory life sentence, such as murder and rape. The public would find such a prospect where nothing further could be done to be unacceptable.

Last night we spoke at some length on rebalancing aspects of the criminal justice process, about which the Minister became animated. This is another compelling case for rebalancing. We would all be aghast at a case where compelling evidence emerged that the conviction was unsafe. There must be an equal measure of concern where an individual walked free from a charge of an heinous crime but where new evidence would demonstrate beyond reasonable doubt that he or she had committed it. People would find it unacceptable that the person would never again have to answer the charge. On Committee Stage, the Minister was well-minded to further consider this amendment. While the constrained timeframe may not have allowed him to consider all matters raised on Committee Stage, I hope he has given some thought to this amendment.

Jim O'Keeffe (Cork South West, Fine Gael)
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This amendment raises an interesting debate and I commend Deputy Howlin on tabling it. When updating the criminal justice system, we must take into account the enormous changes made not just recently with technology but in the social structure and legal supports in the past hundred years. We have moved from a situation where an individual who was accused was left with no proper defence and in some cases did not have an entitlement to be defended. The accused very often had little or no education and was the victim of the establishment of the time. In many such cases, people were wrongly prosecuted or for political or other reasons, with no possibility of an independent assessment. The pendulum has now swung very much the other way and anybody who is accused of a serious crime has all the defences and legal support available to him or her.

It was stated in the recent conference that a slip of any kind on the part of the prosecution, often even of a technical nature, means the accused can go free. The public would be outraged if we did not give serious consideration to a proposal of this kind. In the past, miscarriages of justice were always associated with the fact that an accused may have been wrongly convicted, but we are considering the other side of the coin, namely, the situation where a person, perhaps accused of a most serious crime, may have been wrongly acquitted.

What brings this matter into focus is the type of evidence that is now available through DNA. In some instances, virtually conclusive proof can be available proving somebody's involvement with a crime where no such evidence was available five, ten or 15 years ago at the time when the crime was committed. We must look seriously at the issues raised by Deputy Howlin. We must also bear in mind in any rebalancing of the law the need to ensure that the public interest is safeguarded as much as the position of the accused. I question whether the pendulum has gone too far and, in the light of these modern developments, whether the public interest is still being served. The issues raised by Deputy Howlin deserve the most serious consideration.

Michael McDowell (Dublin South East, Progressive Democrats)
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When this issue was discussed on Committee Stage, I said I would reflect on it. I have come to the conclusion that what I should do is communicate the two proposals and the debate we have had on them to the Law Reform Commission for it to examine the matter.

Brendan Howlin (Wexford, Labour)
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Does the Minister mean this amendment and the next one?

Michael McDowell (Dublin South East, Progressive Democrats)
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Yes. I trust I can be disorderly and mention the next amendment. The substance of both amendments will be communicated to the Law Reform Commission so that it can examine these propositions.

A number of issues arise. First, let us suppose there was a case involving a gangland killing or somebody was taken into a romper room and shot in the head and, after some effort to extract a statement——

Brendan Howlin (Wexford, Labour)
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What is a romper room?

Michael McDowell (Dublin South East, Progressive Democrats)
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——-it later transpired that not only had some gang boss shot somebody, he had also videotaped it. The same could apply to sexual crimes. Following a heavily contested case that ended in an acquittal, if eventually some accomplice of the baddie, so to speak, produced the video to the police, in those circumstances I tend to agree with Deputy Howlin that public opinion would be pretty scandalised if nothing happened to the accused person.

On the other hand, we have the old rules about double jeopardy and autrefois acquit. Other questions also occur to me. On the present reading of amendment No. 62, it is arguable that it would be prospective only. The question can be asked if this should be retrospective in regard to a person who is acquitted of, for instance, a high profile murder. Some cases spring to mind at the moment.

Brendan Howlin (Wexford, Labour)
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Prospective is a start at least. Constitutionally, I am not sure if it could be made retrospective.

Michael McDowell (Dublin South East, Progressive Democrats)
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I just wonder if the Deputy would wish it to be retrospective as well.

Brendan Howlin (Wexford, Labour)
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Is it possible?

Michael McDowell (Dublin South East, Progressive Democrats)
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I do not know if there is a constitutional impediment.

Jim O'Keeffe (Cork South West, Fine Gael)
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I doubt if it would stand up constitutionally.

Michael McDowell (Dublin South East, Progressive Democrats)
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That is a matter I would like to consider. Clearly, at the moment an acquittal is an acquittal but could it be said that from now on acquittals are not absolute acquittals in the sense that they are subject to this process, or would one say, from now on and also in respect of previous acquittals, the same test will apply? Undoubtedly, the Attorney General would have a view on that.

It is a good idea to send this amendment and the substance of amendment No. 63 to the Law Reform Commission and to ask it to take into account the fact that since 2003 in the United Kingdom, there have been provisions in regard to new evidence in serious cases being the basis of re-opening a case, and also in the UK, as far back as 1996, the re-opening of a jury trial has been allowed if intimidation resulted in acquittal. I would not be so sure that I would agree with the second part of amendment No. 63 which provides that a second trial would take place without a jury. I do not say this in a negative way.

Brendan Howlin (Wexford, Labour)
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We will deal with that separately. We have not reached that amendment yet.

Michael McDowell (Dublin South East, Progressive Democrats)
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That is a debatable issue one way or the other. It does not really matter. These are two most interesting proposals and they should go to the Law Reform Commission for consideration. The commission should have the benefit of knowing what was said on Committee and Report Stages on this matter. In the circumstances, I would indicate in regard to amendment No. 62 that this is what I propose doing and I will do the same, prospectively, in regard to amendment No. 63.

Brendan Howlin (Wexford, Labour)
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I am a little disappointed the Minister has not taken this on board. I thought that in the current Minister for Justice, Equality and Law Reform, we have somebody who——

Michael McDowell (Dublin South East, Progressive Democrats)
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I could give the Deputy my personal views, but I should speak to my Government colleagues before I take any position.

Jim O'Keeffe (Cork South West, Fine Gael)
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And his party colleagues.

Brendan Howlin (Wexford, Labour)
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The problem we have on this side of the House is that we have notions that this is a Legislature and that if we make a compelling case, it may be accepted and that there is no impediment to this. Is this proposal so unusual or extreme that the Minister would have to speak to others about it? In normal circumstances, if one needed to bring propositions to Government, this could be done. This is an important issue.

I suppose half a loaf is better than no bread and referring the matter to the Law Reform Commission is something. However, so much is referred to the Law Reform Commission and even when it reports on something, in many cases the reports simply end up on the shelf. I accept that some reports are acted upon. I thought this was a straightforward issue. I wish to deal with amendment No. 63 separately, although the Minister alluded to it.

Joe Sherlock (Cork East, Labour)
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We are discussing amendment No. 62.

Brendan Howlin (Wexford, Labour)
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We are, but the Minister strayed into amendment No. 63 in his comments.

Joe Sherlock (Cork East, Labour)
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Does Deputy Howlin wish to deal with that amendment?

Brendan Howlin (Wexford, Labour)
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No. I will confine my remarks to amendment No. 62 as I wish to make a separate case on amendment No. 63 when we reach it.

Joe Sherlock (Cork East, Labour)
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Tá go maith.

Brendan Howlin (Wexford, Labour)
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I will be more flexible on amendment No. 63 but I thought the purpose of this amendment was clear enough because it is confined to the most serious cases. The Minister asked if a situation could arise whereby no trial is ever finished. In other words, when somebody is acquitted, there is always a possibility of coming back to the case. I do not think it is a bad thing for persons who have committed serious offences that they are never free of the shadow that their offence may catch up with them. Even if it never reaches their door, the notion that they walk out scot free is not just. The notion that the arm of the law might reach them at some stage is not a bad thing.

The Minister referred to the possibility of this provision being retrospective. It did not occur to me that this would be possible. I bow to the Minister's learned expertise in constitutional matters. I thought of it only operating from a current date. I am not sure whether it could operate retrospectively. If it could, I would support that notion. It does not mean that anybody who is acquitted for normal crimes would have a shadow hanging over them. It would only relate to those who have committed the most heinous crimes.

Let us take, for example, the case of a child murderer who was caught attempting to abduct a child subsequent to having been acquitted of a child murder. If some compelling evidence about the original murder surfaced, would people not be fearful and the country aghast that such an individual could not be made to answer for the crime?