Ivana Bacik (Independent)

I spoke about this section already while discussing section 8. I was pleased to hear the Minister's remarks on a person in respect of whom an application for a retrial order is being made under section 8. Presumably, this applies also to a person in respect of whom a section 9 application is being made. It is the understanding of both the Minister and I that such a person would be at liberty. This is why I was surprised on Second Stage to find in section 16 a rather open-ended arrest and detention power in respect of a person whose only qualification is that he or she has been acquitted.

This is not about a person in respect of whom a retrial order has been made under sections 8 or 9 or a with prejudice appeal order. It is simply a person who has been acquitted. Under section 16(2) a Garda superintendent or higher ranking officer may approach a District Court judge and inform him or her that he or she has certain knowledge and that something has come to his or her attention since the person was acquitted which is likely to reveal the existence of new and compelling evidence and, therefore, seek an arrest.

This flies in the face of established common law and constitutional protections of innocent persons. No application has been made to the Court of Criminal Appeal at that stage in the process. It seems there is no requirement for the Director of Public Prosecutions, DPP, to have formed a view that an acquittal has been tainted or that new and compelling evidence exists. The superintendent alone may seek this arrest warrant or authorisation and the District Court judge may then arrest the person. Once such a person is arrested under subsection (3), he or she will be taken forthwith to a Garda station and detained there for a period as authorised under section 4 of the Act of 1984 and, subject to the section, shall be dealt with as though he or she had been detained under that section. This is very murky because the section 4 detention procedure has been litigated extensively and custody regulations are used with the procedure and so on.

Generally, the section 4 procedure is used to detain a person the Garda seeks to interview. Interviews may be conducted according to certain rules, but it seems extraordinary that section 16 confers power on a garda to seek the arrest and detention of someone who has been acquitted and that such a person may then be questioned. I am unclear as to the purpose of the measure. Is it to bring such people before the courts for a section 8 or section 9 application? Is it to gather the new and compelling evidence? This would be very wrong. There is a lack of clarity because a garda may have knowledge of something that might confirm the existence of new and compelling evidence. Is the garda then entitled to go on a fishing exercise and detain someone to get information through interview and interrogation with a view to building a section 8 case against such a person? I am unclear about this matter. I oppose the section because the lack of clarity raises constitutional difficulties about the detention of someone under the section.

I refer to the ending of the detention. The legislation states detention may be ended if there are no longer reasonable grounds for suspecting a person has committed the offence in respect of which they were arrested. However, such a person would not have been arrested in respect of committing an offence but for the fact that a Garda superintendent informed a District Court judge that he or she had knowledge of new and potentially compelling evidence. The person has already been acquitted in respect of the original offence. Section 16(5)(a)(ii) suggests detention may be ended where there are no longer reasonable grounds for believing detention is necessary for the proper investigation of the relevant offence.

It seems detention is for the purpose of investigation but there must have been an investigation prior to that point for an application to be made in the first place because a garda must have some knowledge of the existence of new and compelling evidence. I am puzzled by the section. It may be the case that it is intended to be as wide as I have suggested. How else is such a detention to be terminated? A person may be held for up to 24 hours under the 1984 Act, as amended, but normally there is a requirement that such a person is charged. If someone is held under a section 4 detention, he or she is released when grounds no longer exist for detention or he or she is released and then charged. However, in this case there is no indication of what happens next. The legislation states "the detention shall be terminated forthwith". If nothing else happens under section 16(5) once the section 4 period expires, which is 24 hours at present, the detention is terminated and a person should be released. What happens next? One presumes the Garda furnishes the DPP with any new information and the DPP makes an application to the Court of Criminal Appeal under section 8.

However, it strikes me that section 16 rides roughshod over the safeguards in section 8 if a person may be arrested and detained to gather evidence or to show there is new and compelling evidence against them for a section 8 application. What is to prevent the Garda seeking this procedure for every acquitted person or to test whether such a person would make a confession having been acquitted? The Garda could arrest, detain, determine if it can extract a confession and then it would have a second bite at the cherry. I am not impugning the Garda or suggesting the Garda would behave in this way at random. However, as legislators we must ensure safeguards exist against abuse by ill-intentioned individuals and I see no such safeguards here. Section 16 as currently drafted is too broad. Unless I have missed something I see no reason for this requirement or for such very extensive powers of arrest and detention of a person previously acquitted and in respect of whom there has been no section 8 or section 9 procedure at that stage.

It is also interesting to read the section in conjunction with section 15 which outlines the safeguards and the proviso that powers may be used only in accordance with this Bill. It lists what the Garda is not permitted to do without the consent of a person, where such a person has participated in a relevant offence in respect of which he or she has been acquitted. Quite properly, the section lists the requirement for such procedures as arrest, detention, interview and so on. However, section 16 undermines all that with the provision that such a person may be arrested as if under section 4, but without the usual stipulations of a section 4 detention, such as when a detention comes to an end a person must be charged or released. There is no provision here that such a person would be charged at that stage. He or she is simply released but the case may have been built against him or her during a detention and he or she may be subject to a section 8 or section 9 application then. Will the Minister clarify the purpose of the section and how he intends to ensure safeguards against abuse?