Seanad debates

Thursday, 16 June 2022

Garda Síochána (Amendment) Bill 2022: Second Stage

 

Question proposed: "That the Bill be now read a Second Time."

9:30 am

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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I welcome Minister of State, Deputy James Browne, to the House.

Photo of James BrowneJames Browne (Wexford, Fianna Fail)
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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.

Photo of Gerry HorkanGerry Horkan (Fianna Fail)
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I thank the Minister of State for his very comprehensive summary of the position we find ourselves in. I am conscious that the ruling is effective until 16 June, which is today. I know that once the Bill is passed, we will have an earlier signature motion to ensure it is enacted straight away. I do not want to delay the Bill at all. The Minister of State has given us a very comprehensive outline of the position. I do not need six minutes to regurgitate everything about the complications and how this situation arose. We need to use our court system efficiently and not have thousands of gardaí dragged into courts when they would be much better served investigating and solving crime and dealing with other issues gardaí need to deal with.

I commend the Bill. My party will obviously be supporting it. I thank the Minister of State for introducing the Bill. I hope the House supports it. I do not doubt that it will.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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That was one of the most efficient addresses for a while.

Photo of Jerry ButtimerJerry Buttimer (Fine Gael)
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I will be as brief as Senator Horkan. I welcome the Minister of State and commend Government on its proactivity with this legislation. We all welcome the more efficient use of Garda resources. None of us thinks that attending court to prosecute every criminal offence makes sense. That is why this Bill is important. As Senator Horkan said, it must be done by 16 June. While the allocation of Garda resources is a matter for the Garda Commissioner, in light of reports of joint policing committees in Dublin and, in particular, Cork, it is extremely important that we should have an enhanced Garda presence on our streets. The increase in antisocial behaviour and unnecessary attacks on people needs to be addressed as a matter of urgency by the Garda Commissioner. This legislation will free up Garda resources in that regard.

I commend the Bill and thank the Minister of State for being here. I look forward to the Bill's swift passage through the House.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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This is working remarkably efficiently.

Photo of Niall Ó DonnghaileNiall Ó Donnghaile (Sinn Fein)
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Do not speak too soon, a Leas-Chathaoirleach. I welcome the Minister of State. I will not be as brief as the two previous speakers-----

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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There is no requirement to do so.

Photo of Niall Ó DonnghaileNiall Ó Donnghaile (Sinn Fein)
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I appreciate that, but I assure colleagues that I will be brief, maybe just not as brief.

I will touch on the amendment I have tabled, which, hopefully, will save us time when we get to that point. The Bill is designed to protect in principle and in law a very important and long-standing function carried out in District Court sittings by members of the Garda, known as Garda court presenters.When a case comes before the District Court, it is handled by a court presenter — for the most part by a local sergeant. The court presenter will detail the offence committed, including details of arrest, charge and caution, and outline the circumstances of the offence. Due to the minor or moderate offences which are prosecuted at District Court level, this is a system that has always allowed for the State prosecutor to focus on more serious cases at a higher court level. This is a well-established system across the State and has been for many years.

On 31 May, the case of Garda Liam Varley v. Ciarán Davitt came before the High Court. The judgment in that case determined that there is no legal basis underpinning the system of Garda court presenters at District Court level. The effect of the decision is that no Garda other than a prosecuting Garda can present a case in court. The ruling ended the ability of Garda court presenters to present and has immediate implications for the system. To restore the legal basis of the Garda court presenters, the Minister for Justice has introduced this emergency legislation.

Due to the emergency nature of this legislation, Sinn Féin did not object to a waiver of pre-legislative scrutiny at the meeting of the justice committee without sight of the Bill. Having since examined the Bill, as the Minister will know from contributions by my colleagues in the Dáil, Sinn Féin submitted an amendment yesterday to ensure that Garda court presenters would not be below the rank of sergeant.

The handling of the Bill so far has unfortunately been somewhat unsatisfactory regarding how to do business, especially regarding the prosecution of those before the courts. While Sinn Féin did not oppose a waiver at pre-legislative stage, it is disappointed that the Bill does not limit Garda court appearances to sergeants or those above that rank. As I have said, we have introduced an amendment in that respect. It is important that the Minister accept the amendment because the unintended consequence of the Bill as it stands is that probationary gardaí will be given the ability to act as court presenters, an outcome we would have serious concerns about. I hope the Minister can accept the amendment and that colleagues can support it. I assure the Minister of our broader support for this Bill and what it is trying to achieve. Sin mo mhéid.

Photo of Mark WallMark Wall (Labour)
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I, too, welcome the Minister of State to the House to deal with this important emergency legislation. As he says, the purpose of the Bill is to amend section 8 of the Garda Síochána Act 2005. As it did in the Lower House yesterday, the Labour Party welcomes this legislation and will be supporting it. There was, however, a worry articulated in the debate yesterday. The Minister of State mentioned it again today. It concerns a letter from the Minister for Justice, Deputy Helen McEntee, to the Ceann Comhairle stating that on 2 June more than 2,131 cases were before the District Court throughout the country. Notwithstanding contingency measures put in place, hundreds of cases had to be adjourned. In one court alone, 130 cases were adjourned, which, of course, caused distress and worry among all those involved.

The court presenter case underpins this legislation, which is to support the processing of the large number of cases coming through our District Court and to allow as many of them to be heard as possible, having regard to Covid restrictions. The cases that have backed up have been added to the already lengthy backlog arising from the Covid disruption. The recent ruling by the High Court necessitated action by the Government. We support that action today.

The recent ruling should concentrate Government minds on how our District Court operates. We have received a number of calls from those working in the system about the lack of judges and how this is causing delays. Given the ruling that has highlighted a practice that has assisted the working of our District Court system over many years but does not have legislative underpinning, the fundamental question arises as to whether there are other practices within the District Court system that could also be struck down. I am sure the Minister, the Department and the Attorney General have regarded the need to rush emergency legislation through the Houses of the Oireachtas as a flag prompting them to carry out a review of all such practices within our District Court system to avoid a recurrence of what is happening today.

I thank all the gardaí who assist us all throughout our communities day in, day out. Their job is not an easy one, as we have all said before in this House. We must carry out and use every opportunity to thank them for the work they do for us. On a personal note, I thank the gardaí in my area, south Kildare, for their assistance with so many queries about matters that I continue to come across in my work as a public representative. As colleagues have done, I call for additional gardaí for south Kildare. It does not come directly under the Minister's remit; however, given the additional work so many gardaí are doing in my part of the country, this debate gives me an opportunity to call for additional resources. All those involved would support that call.

I thank the Minister and Minister of State, both of whom have been present during my speech. That is the first time that has happened. It is great to see.

Photo of Gerry HorkanGerry Horkan (Fianna Fail)
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The Senator is twice as important.

Photo of Mark WallMark Wall (Labour)
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The Labour Party will be supporting the legislation today.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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It is my pleasure to welcome the Minister, Deputy McEntee, to the House. As Senator Wall has said, we have had two Ministers today on this important topic. Now that all the Senators' contributions have been made on Second Stage, I invite the Minister to respond.

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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I apologise for being late. I had hoped to be here from the start. I thank the Minister of State, Deputy James Browne, for stepping in.

As Senators probably have outlined, this is legislation we were not perhaps expecting. I really appreciate the response and speed at which we have received support from both Houses to pass it. That one court alone had 120 cases that had to be adjourned speaks to how much we need to introduce the legislation as quickly as possible.

We are undertaking a number of reviews in the Department. On Senator Wall's point, one review deals with the role of An Garda Síochána as prosecutor. I hope to have the report in a matter of weeks. There will be a further discussion on the matter then. As the Senator will appreciate, what we are doing here is essentially restoring what we had before.

On the matter of judges, I have a quite significant body of work under way under Ms Brigid McManus, a former Secretary General in the Department of Education. The review deals with the types and numbers of judges we have. I will have an interim report in the coming weeks setting out what will most likely be the significant increase required, not only in the District Court but also in all the other courts. I will be engaging with colleagues on this and responding accordingly.

I appreciate colleagues' support in making sure this legislation can be passed as quickly as possible. It is most important that the courts and An Garda Síochána can return to operating in the way they have been.

Question put and agreed to.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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When is it proposed to take Committee Stage?

Photo of Jerry ButtimerJerry Buttimer (Fine Gael)
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Now.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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Is that agreed? Agreed.