Derek McDowell (Labour)

——I have circulated a memorandum to Senators setting out the Bill in its present state. Some of the content is technical and one would need three statutes in front of one to work out what the text of the Bill will do.

During the course of the Dáil debates, it was made clear that all parties share a belief that the criminal law must be kept up to date and relevant as otherwise respect for the law is diminished and it is not seen to be responding to the needs of society. Society seeks a criminal law regime which affords it protection and allows people to plan and conduct their private and business lives without interference from criminals. It is a basic and ongoing duty of every Government and of the Oireachtas to ensure citizens have that level of security and retain a high degree of confidence in the efficacy of the law. Modernising and updating the law is, therefore, a continuing requirement on us as legislators.

While this Bill covers an extremely wide range of issues affecting the criminal law, I want to draw the attention of Senators to the additional powers being granted to the Garda Síochána in a number of areas. I mention as an example section 9, which provides for an extension in the maximum period of detention under section 4 of the Criminal Justice Act 1984 from 12 to 24 hours. While I am satisfied that additional powers for the Garda are necessary to deal more effectively with crime, I am equally convinced that counter-balancing measures must provide safeguards against the potential abuse of those powers. I felt it was therefore necessary to provide those safeguards in tandem with these proceedings and before granting those additional powers.

The Garda Síochána Act 2005, with its provisions for an ombudsman commission and a Garda inspectorate is a key element in the package of safeguards. As Senators are aware, both the inspectorate and the ombudsman commission have been formally established and will become fully operational over the coming months. These bodies, when fully operational, will bring a greater degree of transparency and accountability to Garda procedures and will provide independent assurance that best practice is being followed. It will also be the task of these bodies to deal openly with any shortcomings. I know Garda management is fully committed to the successful operation of the new structures and I can give the same assurance on my own behalf and on behalf of the Department of Justice, Equality and Law Reform.

The roll-out of the arrangements for video recording of Garda interviews is another vital element in the package of safeguards. A video of an interview will provide the best possible assurance that proper procedures are maintained. We have now reached a point where facilities are available in every Garda division and, at the next level down they are available in the great majority, approximately 90%, of Garda districts. In 2005, the Garda estimates that 98.1% of interviews were recorded. In the less than 2% of cases where recording did not occur either the detained person did not wish to have the interview video recorded or there was an over-supply of people to be interviewed and an inadequate amount of equipment.

These developments I have mentioned, taken together with the very substantial investment in technology, equipment and general resources, not to mention the greatly increased number of personnel in the Garda Síochána, will ensure a modern, well-resourced police force capable of facing the future with confidence.

The Bill contains 196 sections in 15 Parts, as well as four Schedules. I propose to outline the main provisions in each Part. The memorandum I circulated provides more details on each section. Part 1 deals with preliminary and general matters. Part 2 contains several provisions concerning the investigation of offences. I want to mention four issues in particular. I draw the attention of the House to section 5 which provides a new statutory power to preserve a crime scene. Section 6 provides a revised general provision on the issuing of search warrants where an arrestable offence has been committed or suspected. The extension of detention periods to which I already referred arises in section 9. This section amends section 4 of the Criminal Justice Act 1984 by providing for an additional extension of up to 12 hours to the two six-hour periods already available under the 1984 Act.

The fourth item in this Part I wish to mention arises in section 14 and deals with DNA sampling under the Criminal Justice (Forensic Evidence) Act 1990. The changes proposed will result in a reclassification of mouth swabs and hair samples. They will no longer be considered as intimate samples and consent will no longer be required. I should add at this point that, following the publication of a report by the Law Reform Commission last November, new legislation is being prepared in the Department of Justice, Equality and Law Reform on the establishment of a DNA database.

Part 3 of the Bill contains sections 15 to 20 and deals with the admissibility of certain witness statements. In particular, it deals with circumstances where a witness recants and refuses to stand over a previous statement. This occurred in several cases in recent years and has the potential to do serious damage to the criminal justice system and public confidence therein. My proposals aim to deal with the issue in a sensitive and balanced way. It will be for the court in each case to determine whether a previous inconsistent statement should be admitted and the Bill provides guidelines for the court in arriving at its decision.

Part 4, which includes sections 21 to 24, deals with appeals in certain criminal proceedings. In particular, it expands in a modest way the circumstances in which the prosecution can appeal a decision. It should be noted that in appeals arising from cases involving an acquittal, the appeal is by nature of an appeal on a point of law and continues to be without prejudice to the acquittal verdict. Pending completion of a report on this area of law by the Law Reform Commission, I decided to make only limited changes in this Bill. I may wish to return to this issue once the commission's report becomes available.

In this regard, some interesting amendments were tabled in the Dáil. Deputy Howlin tabled one modelled on English law, for which amendment there is something to be said but which I want to consider. He made the point that if somebody is acquitted of a very serious offence such as murder, rape or kidnapping, which carries a mandatory or maximum sentence of life imprisonment, and it later becomes crystal clear that there is a compelling case that the person is guilty, there should be a right to reopen the whole case, as in England. For instance, if a person were accused of kidnapping and murdering somebody and it later became clear that he or an accomplice had kept a video record of the killing, which record was not available during the first trial, this evidence might, in limited circumstances, trigger a retrial. Thus, one could not say the man was acquitted and could therefore not be retried.