Dermot Ahern (Louth, Fianna Fail)

Before I respond to Senator Regan's amendment I would like to make a number of general remarks on Part 4 of the Bill. It is necessary to clarify some basic issues which will assist in dealing with the amendments.

Part 4 is devoted almost exclusively to the detention of suspects under various statutory detention orders in the Offences Against the State Act, the Criminal Justice (Drug Trafficking) Act and the Criminal Justice Act 2007. It deals, in particular, with the hearings of applications to extend the relevant periods.

The purpose of the hearings is to satisfy the court that there is sufficient reason for the continued detention. The hearings have been, and always were intended to be, conducted by the judge in a manner similar to that of an investigating magistrate in other jurisdictions. In other words, the purpose of the hearing is to allow the judge to satisfy him or herself that the investigation is being properly progressed with the necessary speed and diligence, thereby ensuring the suspect is detained for no longer than necessary. The hearings are not concerned with the guilt of innocence of the detained person. That is a matter for the trial court.

The adversarial system used at trial to test the quality and nature of the evidence is, therefore, not appropriate to hearings on the extension of detention periods. In recent times these hearings have taken on a very strong adversarial character. Every effort is made to elicit information pertaining to the current state of an ongoing investigation and its likely future direction. The disclosure of information at that point can do immense harm to the investigation.

As a result of this new approach to the hearings, large numbers of gardaí have to wait for many hours in court rooms. This delays and interrupts the investigation. In addition, the gardaí must go to extraordinary lengths to protect the integrity of the ongoing investigation. From the suspect's point of view, there is much to be gained. The investigation is interrupted, some valuable information may become available and, of course, while away from the Garda station he is not being questioned but the clock is still running on the detention period. I am not saying there is a strategy in this new approach. I am simply saying it is harmful to the fight against serious crime and is not an approach that had been originally intended. I am convinced of the need to take steps to rectify this position. I believe Part 4 of the Bill goes a long way in that direction.

The changes present no threat to the rights of the suspect. He retains the right to bring a case to the High Court under Article 40 of the Constitution if there are grounds to believe that the detention is in any way unlawful. However, many years ago in 1990, in the case of Keating v. Governor of Mountjoy Prison, the Supreme Court made it clear that it was not appropriate to raise questions as to the lawfulness of the detention in any court other than the High Court, save in the most exceptional circumstances.

Hearings to extend detention periods are held in the District Court, or occasionally in the Circuit Court. These courts have no jurisdiction under the Constitution to hear or determine questions relating to the lawfulness of a detention, yet as part of the new approach I have mentioned, this is attempted regularly. Part 4 seeks to give effect to the Supreme Court's view in Keating v. Governor of Mountjoy Prison and thereby clarifies the matter.

Amendment No. 21 would require that the member in charge must be of a rank not below sergeant. The concept of the member in charge is by now a well established one. It has its origins in section 4 of the Criminal Justice Act 1984 and the custody regulations made under that Act. The Act and the regulations ascribe very significant duties to the member in charge, especially in relation to the treatment and welfare of the arrested person. The provisions in the 1984 Act and the regulations apply not only to persons detained under the 1984 Act but also in all other cases where the person is arrested or detained under statutory powers.

Section 4 does not specify a rank but, in practice, we know that it is commonly a sergeant. To depart, after all this time, from the accepted approach would introduce a significant rigidity. I see no reason to depart from the accepted wording as used in this Bill and in several other statutes. The text in the Bill mirrors precisely the text in the other three statutory detention powers, that is the Acts of 1984, 1996 and 2007.

The amendment, if accepted, could cause serious operational difficulties without any hint of benefit. It would open another line of inquiry for those wishing to delay the detention hearing and thereby disrupt investigation, and would cast doubt unnecessarily on the existing provisions in the other statutes I have mentioned.