Ivana Bacik (Independent)

I move amendment No. 15:

In page 22, lines 33 to 35, to delete all words from and including ", including" in line 33 down to and including "applicant)" in line 35.

These six amendments relate to the same procedural principle the Minister is proposing to introduce, that is, the secret hearing as it has been colloquially called. The amendments represent my third main objection to the Bill, the first two being a garda's opinion evidence as to the existence of a criminal organisation and the encroachments on the right to jury trial. This third matter goes to the heart of fundamental safeguards in the criminal justice system and the secret hearings represent a dangerous departure from our normal rule of law provisions.

The six amendments relate to detention hearings under three statutes. Perhaps I will await the Minister's attention. Before I discuss my reasons for tabling these amendments, will he confirm what is it we are dealing with? We are dealing with detention hearings under section 30 of the Offences Against the State Act. The Minister stated that the Act permits detentions of up to 72 hours. I look forward to being corrected if I am wrong, but my understanding is that, following an amendment by the 1998 Act, persons can be detained under section 30 for up to 96 hours - I want to ensure that I have this fact right - and that an application must be made to a District Court judge where a garda desires to extend detention beyond the first 48 hours. Ordinarily, a person can be detained for 24 hours under section 30. If a chief superintendent directs, a further 24 hours may be permitted. Beyond that period, the two further 24-hour extensions must go to a District Court judge. This is to what section 22 refers. In section 23, the detention provisions are those comprehended by the Criminal Justice (Drug Trafficking) Act 1996. The Minister pointed out that the maximum detention period is seven days although the maximum period is rarely used. The third set of detention provisions, referred to in section 23, relates to detention under the Criminal Justice Act 2007, which concerns certain specific offences. Will the Minister confirm whether seven days is the maximum detention period? I did not have time to check myself but meant to do so.

In section 23 it is proposed to extend the detention power in the 2007 Act to all the organised crime offences that fall under Part 7 of the Criminal Justice Act 2006. There are significant detention powers in all three statutes. Will the Minister confirm that I have interpreted them correctly? He may have stated inadvertently in his speech that the detention period under the 1939 Act is shorter than it actually is.

The amendments I propose to each of sections 21, 22 and 23 are to change the provision for what I describe as a "secret hearing". Section 21 best illustrates my point. Section 21 inserts a new subsection into section 30 of the 1939 Act providing that a judge may exclude persons from an extension-of-detention hearing and may direct that the application be heard otherwise than in public, or exclude from the court during the hearing all persons except officers of the court, persons directly concerned in the proceedings, etc. I do not object to this and believe there may be a need for it but I have sought to amend the Minister's provision with regard to secret hearings, to which many objections have been made, particularly by the 133 prosecution and defence lawyers who wrote to The Irish Times. The objections relate to the fact that the judge may, in certain circumstances, direct that evidence on the basis of which the extension is extended "shall be given in the absence of every person, including the person to whom the application relates and any legal representative (whether of that person or the applicant)". I object to these words and propose to delete them.

The provision is fundamentally wrong and, as the 133 lawyers stated, it is anathema to the rule of law to make provision for hearings to extend substantially the detention of a person who already has been in detention for a considerable period under the authority of senior gardaí. It is fundamentally wrong to suggest one can have an extension-of-detention hearing in the absence of the accused, his legal representative and the lawyer for the prosecution. To contemplate an extension-of-detention hearing where the only people in the courtroom would be the judge and garda seeking the extension is extremely dangerous. There would be nobody present to contest the statement of the garda. As Senator Regan stated, there would be nobody even to record what was said. This is fundamentally wrong.

The Minister stated it would be invidious to exclude the suspect in detention but not his lawyer. Why exclude either of them? The Minister justified his statement by referring endlessly to one allegation by the Limerick State solicitor that one lawyer was passing on information he had apparently gained at an extension-of-detention hearing. This is not sufficient evidence on which to make such a fundamental change, not just to one set of detention powers but to three different sets in three different statutes. As I stated on Second Stage, it is throwing the baby out with the bath water. If a lawyer has been involved in corruption of the kind in question, action should be taken against him and he should be penalised. To tarnish all defence lawyers with this suspicion is wrong, yet it is effectively what the Minister is doing in this Bill. He has gone further because he is even tarnishing prosecution lawyers with that suspicion.

It is nonsense to suggest Garda investigations are compromised through having the suspect and his lawyer present at the hearing. In this regard, I refer the Minister to the comments made by the 133 lawyers. My experience suggests that during extension-of-detention hearings, the court hears generalised evidence about the necessity for time to carry out interrogations, forensic testing or assessments of evidence. The standard comments offered by gardaí seeking to extend detention relate to the need to check fingerprints, to conduct further inquiries and to question the suspect further. I have not heard of any example that suggests otherwise, other than the anecdote related by the Minister. Very rarely is substantial or significant information in respect of an operational development given in court in extension-of-detention hearings.

It was put to those who criticised this provision that they did not have faith in judges. I have faith in judges and find it difficult to believe that many District Court judges will actually use this provision. The Minister may ask why I am objecting to it in that case but the fact that the provision is unlikely to be used begs the question as to why we are bothering to include it. If the provision will create such a shift in our criminal justice system that judges are reluctant to use it, as I believe will be the case, its effectiveness will be all the more questionable.

My amendment would change the nature of the provision such that a judge may:

[...] direct that, in the public interest, the particular evidence shall be given in the absence of every person other than—

(I) the member or members whose attendance is necessary for the purpose of giving the evidence to the judge; and

(II) if the judge deems it appropriate, such one or more of the clerks or registrars of the Court as the judge determines,

(III) the person to whom the application relates and any legal representative (whether of that person or the applicant).".

My amendment changes the presumption and makes it necessary that the person to whom the application relates, that is, the person in detention, his legal representative and any legal representative of the applicant be present in court. I do not understand why it is necessary to provide for hearings in secret. The case has not been made for this in any way.

There are three different sets of detention powers at issue and three different types of detention hearing relating to different detention periods. All are substantial and concern persons who have been already in detention for a significant period. The Minister's provision encroaches significantly on the constitutional right to liberty and it removes the safeguards currently in place. The European Court of Human Rights has issued various rulings on the extension of detention and on the need for judicial intervention, as the Minister is well aware. I find it difficult to understand how judicial intervention can be justified where the judge has heard from the garda applicant alone in the absence of the accused person, his legal representative or any other legal representative.