Ivana Bacik (Independent)

I move amendment No. 3:

In page 4, line 40, after "person" to insert "who is lawfully in custody".

This amendment was tabled in the Dáil by Deputy Rabbitte. It seeks to limit the definition of a person who may be placed in temporary custody to a person who is lawfully in custody. I expressed a reservation about the drafting of this section on Second Stage. Section 6 refers to a prisoner who may be placed in the temporary custody of a member of the Garda Síochána. Section 5 gives "prisoner" the same definition as that included in the Prisons Act 2007. Section 2 of that Act defines a prisoner as a person who is ordered by a court to be detained in a prison and includes a person who is in lawful custody outside a prison. Section 6(1) of this Bill refers to a prisoner who may be placed in temporary custody, while section 6(2) refers to a person who is "lawfully in the custody of the Garda Síochána". However, section 7 clearly goes beyond the definitions in section 6 because it refers not only to a prisoner but also includes the term "or other person" without the proviso in section 6(2) of a person who is lawfully in custody. In other words, it allows any person to be placed in temporary custody for the purpose of facilitating either a court appearance or their participation "as a witness or in another capacity". I was slightly troubled by the phrase "or in another capacity". It gives a rather overarching power to deprive somebody of his or her constitutional right to liberty.

On Second Stage I asked the Minister what circumstances were envisaged regarding a person who was not a prisoner and not already in lawful custody. Obviously, it happens all the time that people who are already serving a sentence and in prison or who have been deprived of bail and are remanded in custody and, therefore, are in prison on that basis are brought before a court for appearances as defendants or as witnesses. They are routinely brought in custody. That obviously happens already and it is good that the practice is being placed on a statutory basis in the Bill. I am troubled by the idea that other persons who are not defined as being already in lawful custody might somehow be placed in temporary custody to facilitate a court appearance or participate in another capacity in a court hearing. We have developed laws on bail; therefore, how does this provision tally with the Bail Act 1997 and the constitutional right to liberty? I am trying to see how it can be made workable, which is why I tabled the amendment. The same amendment was tabled by Deputy Rabbitte in the Dáil. I have also suggested in amendment No. 4 deleting the term "or in another capacity", unless the Minister can explain the reason for it. I sought such an explanation on Second Stage but did not receive a satisfactory one. That is the reason I tabled the amendments.