Michael McDowell (Dublin South East, Progressive Democrats)

As the House will be aware, the judges' rules are a series of rules laid down by a judicial committee on a reference from the UK Home Secretary in the early 1900s, in which he asked judges to examine the question of what safeguards should be applied to people who are at risk of making inculpatory statements to the police. They more or less remained the same until now with some minor statutory modifications, namely, that an accused person has to be told he or she is not obliged to say anything unless he or she wishes to do so, but anything he or she does say will be taken down in writing and may be given in evidence. Anything said by the accused is then required to be reduced to writing and proffered to the accused for his or her signature or acknowledgement. All of this must happen before oral statements by an accused person under questioning are deemed admissible. Any departure from this system without reasonable excuse is a ground for challenging the admissibility of those statements.

This is all very well except that we have now gone to considerable trouble to install video suites. Given the technology available, asking gardaí to take a longhand note of a staccato cross-examination of a person under detention is absurd. With the best will in the world, gardaí will not secure a perfect account of what happened. Words count hugely and there can be confusion as to what precisely they mean. I know of one case where an accused was convicted on the basis of his response to a garda's assertion that "We know you did it", which was "I know you know I did it but you will have to prove it". It all depends on how those words were spoken, whether in a dismissive tone or in a tone of admission. That formula of words ended up sustaining a conviction in this case. To ask gardaí to make notes of conversations like that and to contend that those conversations cannot be used in evidence unless they are written out in longhand is crazy. The use of video-recording means we know precisely what was said and the tone and circumstances in which it was said, and there is no argument as to the exact wording that was used on both sides.

The purpose of section 32 is to allow for regulations to be made that will provide for a new system of cautions in respect of persons in custody who are being interviewed in regard to offences. These will vary from place to place depending on the statutory provision that is being invoked. For instance, under Part 4, where the gardaí plan to rely on the failure of an accused to mention a matter while under interrogation, it must be explained in ordinary language to the person who is being interrogated what the consequences of that failure will be. That could be entirely different from a situation where no such discussion is taking place and a generally compliant accused person is simply making a statement under caution.

The system of regulations will be variable and will be a matter to be worked out once this legislation is in operation. Draft regulations will have to be prepared and presented to both Houses of the Oireachtas under subsection (6) of section 32.