Ivana Bacik (Independent)

I have not tabled an amendment to section 19. My issue is with the thrust of the section as it stands. It is the section that aims to insert two new sections, sections 8A and 8B, into the Criminal Justice (Public Order) Act 1994. I am concerned about inserting new offences and new powers for the Garda into an Act that is already quite draconian in its content.

While I have a concern about that, I am particularly concerned about what would be the new section 8A of the Criminal Justice (Public Order) Act which would create essentially a new offence of failure to give an explanation to a garda where requested to do so. It provides that where a garda finds somebody with alcohol in a situation where he or she believes the person is causing trouble, annoyance or nuisance to another person, the garda may seek an explanation as to any of the matters to which his or her belief relates and if the person refuses to comply with the request for information, he or she may be guilty of an offence.

My concern is that Ireland has already been found in breach of the Convention on Human Rights by the Court of Human Rights, in the cases of Heaney and McGuinness v. Ireland and Quinn v. Ireland, in the provision of the Offences Against the State Act that makes it an offence to fail to answer questions where being questioned by a garda in the course of detention. The Court of Human Rights stated that was in breach of due process rights, and so on.

There are other provisions where it is an offence to fail to give name and address to a garda, but this purported section 8A goes beyond that in making it an offence to fail to give an explanation. I am concerned that this would be in breach of the Convention on Human Rights. Has the Attorney General advised on this and in the light of the concern I raised, is the Minister willing to review the operation of the section until the issue of compliance with the convention is reconsidered?

This is part of an unfortunate trend where we are seeing an ever increasing number of offences being created. There is already a section 8 offence in the Criminal Justice (Public Order) Act 1994 of failure to comply with the direction of a garda. That is quite a broad offence. What we are seeing with this provision, section 8A, is an even wider cover-all offence, which gives greater power to the Garda. This gives rise to fear of abuse and with this problem, on my reading of it, it makes it an offence to fail to give an explanation to a garda. I ask the Minister of State's views on that.