Barry Ward (Fine Gael) | Oireachtas source

I move amendment No. 7:

In page 14, after line 34, to insert the following:

“PART 3

AMENDMENT OF THE JUDGES’ RULES

Definitions

12. In this Part, “the Judges’ Rules” refers to nine common law rules of guidance set out by a 1972 decision of the Supreme Court.

Power for Minister to amend the Judges’ Rules by regulation

13. The Minister may, where she feels it is in the interests of justice and efficiency, make regulations under this section, to amend Rule 9 of the Judges’ Rules to allow for the taking of statements from a person, otherwise than to require such a statement to be immediately recorded in writing, provided the statement is recorded in another form.”.

I am here proposing to insert a new Part relating to the Judges' rules into the Bill. The Judges' rules are a set of common law procedures that are to be followed in relation to persons in custody, the gathering of evidence and other areas. In this amendment, I am specifically considering Judges' rule 9, which relates to the taking of an account of what a person said while being interviewed in custody by members of the Garda. The Judges' rules are common law and go back to the early 20th century. They were affirmed into Irish law in the Pringle case in 1981. In that case, the Chief Justice, Mr. Justice O'Higgins, affirmed them from the point of view not of making them a rule of law but more of a guideline for the Garda, specifically with regard to two aspects. The first was to have accuracy on what a person says when interviewed in custody and the second was affording that person the opportunity to amend that record within a short time in order that he or she has a clear recollection of what was said.

When that decision was made in 1981, there was no video recording or audio recording in the way that there is now. Today we have a situation where almost all Garda stations, and certainly any major Garda station, have video recording facilities. It is par for the course that when a person is arrested and subject to all of the other protections that exist for that person during the time he or she is in custody, he or she will give an interview to the Garda that is recorded by video, with a clear audio recording. After the fact, in a criminal trial, it is standard practice for that interview to be reproduced as a transcript for the benefit of the parties involved in the trial. Although the handwritten note of the members of the Garda involved is also produced, the reality is that we rely either on the video recording, the transcript, or both, of the interview that was given in custody.

The reason I am proposing this amendment is that although the Judges' rules are only guidelines and do not have force of law, the reality is that the Garda sticks by them because its members know they are a template for the admissibility of that evidence gathered while a person is in custody. The difficulty that arises from the point of view of the Garda and, indeed, the person being interviewed, is that the interview can therefore only proceed at the pace at which one Garda member can write down the questions and answers in the interview. The result is that interviews take a great deal longer than they need to, meaning that the person involved will be detained for a longer period than is necessary, and the gardaí involved do not have the opportunity to regulate the flow of that interview to get the best effect from the questions they want to ask. Anybody who has witnessed a criminal court case will see that the barristers or solicitors involved will ask questions at different paces. At different times, they will ask quick, short questions while at other times, the questions will be longer and more discursive. That is a mechanism that is used to elicit the best quality of answers from the witness involved, obviously depending on what side one is. The reality is that the way the Judges' rules operate in practice, specifically rule 9, is that members of the Garda cannot regulate the flow of the interview. They cannot, in essence, cross-examine a person who is being interviewed. They may only ask a question and receive an answer at the speed at which one Garda member can write it down. That must be frustrating for both the gardaí and the interviewee and it is unnecessary. The reality is that we now have technology that renders that level or manner of recording unnecessary and superfluous.

What I am suggesting is that rather than just sweeping away rule 9, which is tremendously important, we would, through this Bill, empower the Minister to make a regulation to change that and to acknowledge the fact that the Garda no longer needs to write down those interviews but can rely on the digital recordings of the interview, both audio and video, because the reality is there is always going to be a video recording. It will make everything much more streamlined and efficient. Garda members can still do it by writing in the very odd case where video recording facilities are not available. That is the purpose of these sections.