Dermot Ahern (Louth, Fianna Fail)

To answer Senator Bacik on section 30, the initial period is 24 hours, the first extension authorised by a chief superintendent is a further 24 hours and the first extension authorised by a district court or circuit court is 24 hours. Normally the district court follows an application by a superintendent, making a total of 72 hours or three days. The total under section 2 of the Criminal Justice (Drug Trafficking) Act is seven days, and under section 50 of the Criminal Justice Act 2007 is seven days in respect of murder involving a firearm, capital murder, possession of a firearm with intent to endanger life, kidnapping and hostage taking involving a firearm.

Senator Alex White asked whether there is a plurality of cases. This was drafted before the State solicitor said anything publically because there were strong suggestions of instances in which information had been passed. This refers to a pre-trial hearing in respect of extending detention on which there is case law. The case of the DPP v Donoghue involved defendants prosecuted for membership of an illegal organisation contrary to section 21 of the 1939 Act. The prosecutor relied on the belief evidence of the chief superintendent. This belief was based on confidential information available to the chief superintendent. He claimed privilege in respect of the sources which provided the information on the grounds that to disclose them would endanger the lives of people and hamper ongoing security measures for the security of the State.

The Special Criminal Court required the chief superintendent to produce all relevant documentation upon which he relied. Following a review the court ruled that it was adequate and reliable information and that nothing in the documentation would assist the defence in proving the innocence of the accused. Ms Justice Macken delivered the judgment in the Court of Criminal Appeal and reviewed the European Convention on Human Rights, ECHR, authorities in her judgment. In that case the Court of Criminal Appeal was satisfied that the trial judge took sufficient steps to satisfy himself that the garda was entitled to claim privilege against disclosure of information. The judgment stated that withholding documentation, as in that case, was consistent with Article 6 of the ECHR, the right to a fair trial, where the decision to hold it was within the supervisory control of judges which is exactly the position on this issue.

The provisions we are putting in allow the exclusion of the detained person and their legal representatives. It is not entirely without precedent. The concept of certain material evidence being privileged and not made available to the accused or his legal representatives is not new. Section 4 of the Bail Act 1997 and section 41 of the Criminal Procedure Act 1967, as amended, which refer to similar pre-charge hearings, replicate the limited access of the public. The rules of procedure governing the Special Criminal Court also allow it to exclude the public or a portion of the public or to direct the removal of a person who is interfering with the proceedings. There is a precedent for this provision.

The seven day detention exists for several other serious offences. It has been forgotten in the public debate that these provisions already exist and have done so for some time. We are allowing the judge to exercise his power where he believes that it is necessary to do so to avoid the risk of prejudice to an investigation. This is subject to judicial scrutiny as held in DPP v. Donoghue. The limited power the judge has only arises where the judge is satisfied that the evidence could prejudice the proper conduct of an inquiry or investigation. It is self-evident that in such circumstances the judge should have this power or otherwise the investigation could be prejudiced. Where the judge believes the investigation will not be prejudiced, the lawyers will not be excluded. This is part of the investigative step. Where detention is extended for a 48-hour period, the senior garda can approve it already without a hearing and without the presence of any legal representatives. We are referring to a hearing before a judge who has a limited power to hear evidence in the absence of any other person where otherwise the investigation would be prejudiced. This does not prevent the accused raising these matters at the trial.

In regard to the exclusion of the accused's solicitor, there may be a fear that he or she, if he or she remains in court, will be pressurised to reveal the information. Lawyers would be put in an invidious position if their client was excluded whereas they were left in for the detention period. It could be argued that to allow them to remain in court on the basis that they would not divulge the information to their client would create an undesirable chasm in the relationship between the solicitor and the client and expose them to considerable pressure. This was recognised by the Supreme Court - albeit in a civil case, not a criminal case - in the case of Burke v Central Independent Television.

In the context of the Special Criminal Court, the Court of Criminal Appeal has held that in the case of a trial on a criminal charge, it is permissible in certain circumstances for the trial court to review information on which a chief superintendent bases his opinion of membership without disclosing it to the defence. The provision in this Bill only creates a very limited restriction in very limited circumstances in the context of an application for longer detention and, accordingly, is more limited and inconsequential than such a restriction in regard to evidence at a trial.

Subsequent to the publication of this Bill, Mr. Michael Murray referred to one particular case. There are two cases where there is serious evidence that what I referred to has happened. Mr. Murray said in one particular case a witness was arrested for withholding information and consulted a particular solicitor. He also said in a subsequent follow up search and in the course of a murder investigation, a mobile telephone was found that was examined. He said it was discovered that the solicitor was texting information to the suspect and the person in custody was in fear of that suspect and was not speaking and not telling gardaí what happened. He said this was a very serious incident. I regard it as a serious incident. I do not know if it is the subject of a separate investigation but it confirms the view that resulted in bringing forward Part 4 of this Bill to be fair to everyone concerned during a detention period while ensuring that the procedure is streamlined.

After the Shane Geoghegan murder I spent some time in Roxboro Garda station where I met all the senior gardaí, all the detective inspectors, detective sergeants and senior people who are fighting gangland crime in Limerick. At the end of a long meeting, I asked them was there anything that I could do for them. One of the them made the point that detention hearings have now become full blown trials, which was not what was originally intended in terms of the extension of periods of detention. I can fully accept what they said because I was aware of that from my own knowledge. There have been attempts by solicitors on behalf of clients at a pre-charge hearing, a hearing in regard to only an extension of detention period, the defence lawyers, representing - not the charged person because the person has not been charged at this stage - the person who is detained for questioning, to find out more information than would be acceptable in regard to the investigation of the Garda.

As a result of my meeting with the gardaí, I followed on in regard what was necessary in this legislation to streamline the detention provision and bring it back to what originally it was intended to be, a pre-trial hearing, not a fully blown trial. Senator Bacik referred to the prosecution lawyer being excluded; normally there is not a prosecution lawyer present. Because no one is charged at this stage, it is a senior garda who makes the application to the court and that senior garda is normally up against substantial legal expertise on the other side. The Director of Public Prosecutions is not represented at that stage. The gardaí have to represent themselves in these applications. To ensure there is a belt and braces approach to an application, it means that literally every garda involved in the investigation must be down in court and be there for the duration of the hearing to prove anything that is raised by the legal team. I emphasise that this is only a detention application, it is not a hearing that will prove the innocence or guilt of the person concerned.

This is a proportionate response to the view that has been expressed by my officials in regard to the way in which these detention hearings have become full blown trials. It is a response to the request from the Garda that the procedure should be streamlined to allow gardaí to get on with the investigation at the initial stage very shortly after the offence has been committed and for their time not to be tied up in court. It is also the case that there have been attempts, particularly where many people are in detention, to use detention hearings to string out the period such that by the time the detention hearing is over, the people detained have to be released because the period of detention has expired. This is a proportionate response to all the difficulties that pertain in regard to the extension of periods of detention, whether it be for 24 hours, 48 hours or seven days.