Michael McDowell (Dublin South East, Progressive Democrats)

I thank the Members for their contributions to this relatively short debate and for their constructive and warm remarks on the proposal before the House. This case poses serious issues. As a number of the Senators said, we must learn from this. While listening to Senator Minihan I was reminded of a thought I had in yesterday's Dáil debate, which is that while such cases may be embarrassing and difficult for the Garda Síochána to come to terms with, this could be used as a test case and a template for training detectives. Some good may come from much bad. This should be studied by trainee detectives and interrogators to illustrate how things can go wrong.

As Senator Kett said, this person was not chosen at random. Low level intelligence pointed in one direction. The accused did not deny involvement but was a suggestible young man who volunteered to gardaí and to his mother that he was involved. Crucially the early statements in his detention were not reliable. At a late stage in his detention an apparently reliable statement came forth. As Senator Minihan said, that was the crucial point. People should have doubted the man's confession given that his statements did not add up. However, when he confessed to the crime he was considered reliable. Alarm bells should have been ringing.

Professional gardaí will say that some suspects fence around the issue at the start and then become truthful, but bearing in mind the man's drug addiction and the fact that he made statements that they knew could not have been true at the beginning, the question arises what happened thereafter. That is for Mr. Birmingham to consider, not for me to prejudge. As Senator Brian Hayes and others have stressed, this is a very important issue.

Many members of the Garda Síochána are as disturbed as we are about these events. I thank them for the work they do day in and out and empathise with them that the force of which they are members comes under the spotlight again. We should reflect on the fact that, by and large, the majority of gardaí do their job conscientiously and professionally and command the support of the majority of the public. They must have been pleasantly surprised by the results of a recent Garda satisfaction survey which showed they were still well thought of despite recent events.

Senator Norris raised the matter of a competing confession. As Minister for Justice, Equality and Law Reform, I cannot say much in that regard. If there was a competing confession one need not be Einstein to work out that the Director of Public Prosecutions was thrown into a terrible dilemma because he had two confessions with two sets of gardaí contending for their validity. To put one man on trial while gardaí in another part of the country have an apparently reliable confession from an accused person is a difficult situation to deal with. Whereas he does not give his reasons in public, it is not difficult to see the problem with which the DPP was confronted in these circumstances.

Senator Norris asked whether there was hope of closure in this matter. It may well be that the cold case re-evaluation of all the exhibits could be capable of yielding DNA and forensic indicators that would move the case on and make it possible for a prosecution to be brought by the Director of Public Prosecutions. This is being examined and I must be careful that nothing I say prejudices it.

The terms of reference of the commission of investigation will be set by me after the Houses pass the draft orders. While I must remain within the ambit of the orders they pass, the exact terms are for me to decide. I will ensure that what is put in place will be adequate to enable the nub of the issues, which we all understand, to be fully and properly investigated by Mr. Birmingham.

Senator Norris asked the cost of this investigation. The cost of a criminal trial is of no concern whatsoever. If the Director of Public Prosecutions becomes satisfied that there is reliable evidence on which he can run a viable trial, no doubt he will proceed, regardless of the issue of cost. A budget of €510,000 is set aside for the first four months of the commission of investigation. It is important that this money is spent and that we have a proper inquiry now. If we leave the issue unaddressed, there will be problems downstream.

Senator Norris asked whether the investigation would go on and on. I am grateful to Mr. Birmingham for accepting this commission and have full confidence in his desire and capacity to bring the matter to a timely and appropriate conclusion. He is in a position to seek extra time if necessary. Likewise, if the terms of reference unduly constrain him, he is in a position to ask me to alter them, and I am free to do so without coming back to the House on it. Nothing should stand in the way of a proper investigation.

Senator Norris suggested that I am sometimes critical of the legal profession. I have absolute confidence that Mr. Birmingham will do the job appropriately and effectively. From what I know of him and of the terms on which he will be appointed, this is not something he will prolong unnecessarily. The new rates of remuneration provided by the Government decision are not such as to encourage investigators to drag out investigations, despite the suspicion of cynics. In the case of Mr. Birmingham, no such notion enters my mind.

The starting point for the commission of investigation will be decided when we have all our ducks in a row, in terms of accommodation, terms of reference and when Mr. Birmingham is ready to proceed. The four-month period is indicative and, if it is inadequate, I will extend it. The enterprise should not take substantially longer than that. It will soon be 2006 and these events took place in 1997. Now is the time to bring closure to the issue and to learn what lessons there are from it.

I earnestly hope this is an event from which we will learn. Some 98% of Garda interviews are now the subject of audiovisual recording. Unfortunately, there are some occasions where people want to talk to gardaí, but not on tape, because they can be pressurised by their colleagues to ask their lawyers, as part of the defence process, to get the tape and show them to their colleagues in crime. There will always be some occasions where people, for some reason or another such as fright or fear, are unwilling to commit to a permanent record of a kind they cannot later deny. However, the majority of interviews are recorded on audiovisual tapes.

The courts have now begun to require a convincing explanation for an unrecorded interview being used as evidence. It is not that it cannot be admitted, but we have reached a point where it is not just a matter of accepting a signed written record under old rules. The Judiciary now suggests that unless there is a good reason a formal interview was not recorded, it will take a jaundiced view of any effort to introduce it. The 98% recording rate now achieved and the attitude of the Judiciary address the issues about which Senator Norris was concerned. I thank the House for its attention and support.