James Browne (Wexford, Fianna Fail) | Oireachtas source

I am pleased to bring the Garda Síochána (Amendment) Bill 2022 before the House. The Bill, which I am proposing today on behalf of the Minister, Deputy McEntee, is necessary to address an urgent lacuna in the law regarding the legal basis for Garda court presenters. The circumstances that the provisions are designed to address are of an exceptional nature. They arise from a judgment in a case stated from the District Court to the High Court that found there to be no legal basis underpinning the system of Garda court presenters. Members of An Garda Síochána can prosecute offences in the District Court under section 8 of the Garda Síochána Act 2005. In practice many of the important procedural matters in prosecutions are dealt with by court presenters, members of An Garda Síochána who specialise in court work in the District Court. The approach taken is to restore the system of court presenters which existed prior to this judgment. The provisions will clearly establish a right of any member of An Garda Síochána to conduct a prosecution, whether or not that member initiated the prosecution. It will allow the District Court to function effectively and address the needs of accused persons and victims to have their cases heard.As of this morning, Thursday, 16 June, the High Court granted leave to appeal and a stay until the first return date on appeal. The decision to appeal is a matter for the Director of Public Prosecutions, DPP. The amendment will come into effect on enactment and applies to prosecutions currently in progress as well as future prosecutions.

I will now outline the background to this short Bill. On 31 May, in a judgment in a consultative case stated from the District Court in the case of DPP, at the suit of Garda Liam Varley, v. Ciarán Davitt, the High Court found there to be no legal basis underpinning the system of Garda court presenters. Court presenters are members of An Garda Síochána who specialise in court work in the District Court and who deal with important procedural matters, including evidence of arrest, charge and caution in first appearances in court, remands, bail applications, presenting a summary of evidence in guilty pleas. The practice of allowing separate Garda members to perform these roles is well established and widely relied upon. It enables a more efficient use of case resources by reducing the need for individual gardaí to attend court to prosecute every criminal case or offence they detect. These prosecutorial functions are carried out on behalf of the DPP under section 8 of the Garda Síochána Act 2005. Section 8(1) of the 2005 Act actively removes the right of An Garda Síochána to prosecute as a Garda informer and section 8(2) supports this by providing that gardaí may bring summary prosecutions only in the name of the DPP. Section 8(2) of the Garda Síochána Act 2005 states: "Subject to subsection (3), any member of the Garda Síochána may institute and conduct prosecutions in a court of summary jurisdiction, but only in the name of the Director of Public Prosecutions."

In the judgment in the Davitt case, the High Court held that the ordinary and natural meaning of the word "and" in the phrase "institute and conduct" in section 8(2) is that the word must be read conjunctively. In other words, the same Garda member must perform both actions of initiate and conduct. Accordingly, a Garda member has a right of audience to conduct any proceedings that he or she has instituted, but the section does not confer right of audience on a garda in any other proceedings. Given the interpretation of section 8(2) of the 2005 Act, the court held that order 6, rule 1, of the District Court rules, which confers a right of audience on all members of An Garda Síochána and not just the garda who initiated the prosecution is an impermissible amendment to the 2005 Act, concluding that the rule is ultra viresof the enabling legislation and could not be relied upon by the District Court judge in affording a right of audience to a garda who had no involvement in initiating the prosecution.

The net effect of the judgment is that no garda acting in a case other than one where he or she is the named complainant may address a court as presenter. This includes bail applications and guilty pleas. The court presenters, therefore, are now no differently positioned than civilians when dealing with a court. In such circumstances the presence of a solicitor or counsel, or the actual prosecuting garda is a prerequisite in all District Court cases for the time being. On 2 June, the High Court clarified that the judgment does not take effect until the final orders are made and the case was adjourned until 16 June.

I now turn to the impact on the actual workings of the District Court following the judgment. The ruling has immediate and serious implications for the conduct of criminal prosecutions in the State as the system of Garda court presenters is well established and widely relied upon across the State. The contingency measures put in place after the judgment issued and prior to the clarification made by the judge as to the effect of the judgment, and the ensuing disruption in that period, give an indication of the impact the judgment will have if remedial legislation is not enacted before the judgment comes into effect.

In Dublin, the DPP had to arrange for court solicitors to be present at all sittings of the 13 District Courts and instructions issued to State solicitors outside of Dublin to cover courts, where possible. The instituting Garda member was also to be present wherever possible. Further mitigating measures were also considered including the use of counsel from the DPP's High Court bail panel to cover the Dublin District Courts, with ongoing liaison with Garda headquarters to ensure that Garda directives were in line with the approach being taken by the DPP.

On 2 June, in a single day, 2,131 cases were before the District Courts across the country, and notwithstanding the measures outlined above, hundreds of cases had to be adjourned. In one court alone, 130 cases had to be adjourned. Once the judgment comes into effect, this impact will be magnified for each District Court, in each county, for each day that the legislation is not amended. In addition to the substantial impact on the work of court solicitors, State solicitors and prosecuting gardaí, the adjournment of cases has caused significant distress and upset to victims and accused persons. These cases will be added to the already lengthy backlog of cases in the District Court. There will be knock-on delays in preparing books of evidence in other potentially more serious trials, work that would ordinarily be undertaken by deployed staff from the DPP's office.

The judgment also gives rise to a risk of Article 40 applications by persons remanded in custody or refused bail in the District Court where the DPP was represented by the court presenter and not the prosecuting Garda member. Article 40 of the Constitution permits persons to apply to the High Court for release on the basis that they are unlawfully detained. Mitigating arrangements cannot be sustained over the long-term from a cost and effectiveness perspective and there remains a risk of Article 40 applications to the High Court.

By means of the short, three-section Bill before the House, it is proposed to amend the phrase "institute and conduct " in section 8(2) of the Garda Síochána Act 2005 in order that it reads "institute or conduct ", providing that the prosecution may be conducted by the instituting Garda member or any other member. The amendment will come into effect on enactment and applies to prosecutions currently in progress as well as future prosecutions. The legislation is in response to an emergency where a failure to act would deny access to the District Court for accused persons and victims, incur greater costs on the State and prolong the period of uncertainty for all involved. I believe it represents a necessary, proportionate and carefully balanced response to the current situation and will allow the District Court to function as intended. Further consideration is being given to appealing the judgment, which is a matter for the DPP. I look forward to hearing Senators' comments.