Ivana Bacik (Independent)

I am grateful to the Minister for clarifying the nature of the detention powers with which we are dealing. These are all substantial detention powers. He has also confirmed that the power to detain a person for seven days pre-charge is now being extended to all organised crime offences under Part 7 of the 2006 Act. It is evidence of creeping changes in the criminal justice system. When the seven-day detention power was first introduced in the Criminal Justice (Drug Trafficking) Act 1996, it was described as being an exception to the general rule and necessary for particular purposes relating to detention of persons suspected of drug trafficking and so on and we have seen it used more and extending to other areas of law. That is a separate but related concern.

We are dealing with substantial detention powers. The Minister said there are already effectively secret hearings where senior gardaí, chief superintendents, approve detention periods. That is right and I acknowledged that in my earlier contribution. It is correct that senior gardaí approve detention but that is at an earlier stage for a lesser period of detention. The reason we have judicial intervention provided for is because the European Court of Human Rights requires judicial scrutiny once persons are to be detained prior to being charged for any lengthy time. We have already got powers for senior gardaí to approve detention but that is only up to a certain point, as the Minister is well aware, and beyond that we need judicial scrutiny but judicial scrutiny must be proper scrutiny and this provision for scrutiny in the absence of the accused and their representative is not sufficient. Nobody is arguing that the defence lawyer should be left in the court room without the client. That would be invidious. Both should be left in and there should not be provision for a judge to exclude both from the court room for one of these extension of detention hearings.

I accept it is not new that we would have in law a concept of material withheld from the defence. That is quite routine in the Special Criminal Court and the Minister has correctly given other provisions where material may be withheld but this is a difference of substance. It goes well beyond the hearings in camera and removal of the public from the court room and it also goes well beyond the withholding of material from the defence because it is based on confidential information and so on. It goes much further towards having a secret hearing, which removes the right of the person in detention to be present in the court room. The allegation by Mr. Murray, the solicitor from Limerick, requires investigation and the appropriate response and sanction if the lawyer is found guilty following a criminal investigation. That is a serious matter but it is not enough to put forward that allegation as a reason to change the entire basis on which we conduct detention hearings on three different types of detention power.

There was a general attempt to suggest that defence lawyers are potentially colluding, that they are using those hearings to gain information. Up to a point lawyers are entitled to gain information during the course of their client's detention about the nature of the charges that may be pressed against them. We do have a criminal legal aid system and lawyers may be appointed under that system to advise clients during detention. The purpose of that appointment of a lawyer is to advise the client on the potential charges that may be proffered against him or her. We should not forget that in the neighbouring jurisdiction, in England and Wales, the person in detention is entitled to have his or her lawyer present during questioning because it is recognised that he or she should have legal advice. We do not have that provision, as we do not go that far, but of necessity we provide that a person in detention is entitled to legal advice because the European convention and the Constitution requires it . It is clear that lawyers are entitled to certain information, not to prejudice or compromise an investigation, but they are entitled to be able to advise their clients. That point should be noted.

The other matters in these sections deal with a creeping change, a general move away from the principle that justice should be done in public, especially with criminal matters. I am concerned also at the blanket provision that re-arrest applications under these three separate statutes and search warrant applications in general must now be made otherwise than in public. That is a concern because it again moves away from the general principle. Section 26, to which I am opposed, states that search warrant applications should be heard otherwise than in public, and similarly with re-arrest applications. There is no requirement that the judge must be convinced that there is risk of prejudice to an investigation before he or she makes an order that an application of this nature would be heard otherwise than in public. It is just a blanket change that these applications will now be heard otherwise than in public. It is one thing to say that where a judge believes there is a risk of prejudice, as we have in the extension-of-detention hearings, that they can exclude members of the public. I do not object to that, but to say these applications should be heard otherwise than in public without any requirement that there is a risk of prejudice shown is a worrying and concerning encroachment on the general principle that justice should be done in public. I am not convinced that the Minister has given enough of a justification for these changes to the extension-of-detention hearings procedures. I will be pressing the amendments.