Dermot Ahern (Louth, Fianna Fail)

I will make a few comments on the section in general. Attention has been focused on one of its aspects where the provision is to hear information from a garda in the absence of an arrested person and his or her legal representative. It has been alleged that these would be secret hearings and are likely to be unconstitutional, but it is fair to say that this provision is necessary to protect sensitive information. The remarks by the State solicitor for Limerick give powerful support for the provision's inclusion, as he stated that there is evidence that certain information is leaking out to known criminals. In the Lower House, I emphasised the point that we introduced this provision before Mr. Murray made that public statement. We did so based on good information that suggested it would be necessary.

As one would expect, the provision has been examined by the Attorney General and his staff. The Irish and UK case law has been reviewed, in particular, the Court of Criminal Appeal's judgment in DPP v. Kenneth Donohue of 2007. The advice to me is that the provision satisfies constitutional and ECHR requirements. Its operation is entirely at the discretion of the judge. It is only that the judge may make certain directions. The section gives clear guidance to him or her, as there are clear references to its being employed where doing so is in the public interest or necessary to avoid prejudice to the ongoing investigation. Having heard the information from the garda, the judge may, at his or her discretion, direct that the information be given again, this time in the presence of the parties and their representatives. In effect, the new provision establishes a hearing within a hearing on a specific matter for a specific purpose. This is a necessary measure presented in a balanced way.

I remind the House that the hearing is not a trial. The fact that the procedure being used at the hearing will not be an issue to be mentioned at the trial, assuming the person is charged, means that its use will not impact on the trial process. I am satisfied that the proposal has been carefully scrutinised and is proportionate and appropriate to the circumstances for which it is intended.

The lawyers among us might raise an eyebrow at the suggestion that a legal representative should be excluded. I emphasise that the provision only relates to the extension of the seven-day detention period. For example, the Garda could give evidence to the judge in its application for the extension to the effect that there has been a significant development in the investigation. Defence lawyers, on behalf of their clients, have attempted to discover these substantial developments. In certain instances, judges have been put under pressure to get more information, which shows the Garda's hand in terms of how well its investigation is going.

If it is proposed to exclude the suspect - at this point, he or she is not a defendant, as the application is in respect of his or her continued detention - leaving his or her legal representative in open court to listen to what the substantial development was would be to place that representative in an invidious position, as he or she would be unable to disclose that information to the client. For this reason and if the client is being excluded from the detention hearing, it might be in the lawyer's best interest to be excluded, as he or she would not be privy to the information and, subsequently, be in an invidious position vis-À-vis the client.

Concerning Senator Regan's amendment on the judge's directions to be recorded by an official stenographer, I have already noted that almost all applications to extend detention periods are held in the District Court. The Senator will be aware that stenographers are not normally used in that court. Therefore, this amendment would create new logistical problems without any apparent benefit. In any event, the amendment is at odds with current developments in the courts. A digital audio recording system is being introduced to court rooms, beginning in the higher courts. Installation at District Court level will commence this year. The introduction of the new system will result in stenographers being phased out totally.