Wednesday, 6 June 1984
Dáil Eireann Debate
(6) (a) Where a person is detained pursuant to section 3, his personal belongings shall not be  removed from his person or clothing unless such removal is authorised by this section or is removed by the member in charge because the removal is necessary for that person's safety.
Questioning within the confines of a Garda Station can be a traumatic experience for all but the hardened criminal. It seems appropriate that steps should be taken to draw up regulations governing questioning procedures in those cases where questioning is permissible, as, for example, the Offences Against the State Act, 1939. Such regulations should allow the Gardaí to ask questions in a fair and humane manner, and at the same time protect the person being questioned from feeling isolated, vulnerable or intimidated. We believe that not more than two Gardaí should be entitled to question a prisoner at one time, and that not more than four Gardaí should be present at any one time. Prolonged questioning should not be permitted; at most, four hours of questioning should be allowed, followed by a break of one hour...
The words to which I want to draw attention are “such regulations should allow the Gardaí to ask questions in a fair and humane manner, and at the same time protect the person being questioned from feeling isolated, vulnerable or intimidated”. For example, the removal of eye glasses can be a form of intimidation and the removal of a watch can make it difficult to keep track of the time. There have been instances where the removal of a watch has been cited as a form of  intimidation and disorientation. One might think there is no need to cover points like this because behaviour would always be humane and reasonable and there would never be any intention to put a person being questioned at a disadvantage, but we know from experience that this sort of thing happens. It is important that there be safeguards, whether in the Bill or in the regulations, to cover such incidents. We are inclined to think of a person being bruised or beaten or having some injury to his shoulder or face which would leave some mark. Those are very clear-cut situations but here we are speaking about psychological pressure placed on an individual, perhaps in a smaller proportion of cases. It is quite clear that psychological pressure is used in certain instances during questioning. In one case on which an affidavit was sworn, the person told of a practice of shoving the questioner's fingers up against his eyes to such an extent that he was sure they would hit his eyes but they did not. He said that he could not understand how they could keep coming so close to his face, like a bunch of grapes, and not actually hit it. This became quite intimidating.
The ordinary person, especially the innocent person who becomes unwittingly involved will feel very isolated and vulnerable in these surroundings. There are also other methods of putting psychological pressure on people. There should be certain minimum safeguards. We propose that the personal belongings should not be removed except where necessary, particularly in relation to a person's own safety and that what is done in that respect should be recorded. That is the intention behind section 5. It could alternatively be dealt with under regulations, if appropriate. I put it down at this stage to indicate our concern.
Minister for Justice (Mr. Noonan: , Limerick East): I accept the intention and the concern. Deputy Woods' amendment falls into two paragraphs 6 (a) and 6 (b). In the Bill, section 5 gives the Garda power to search a person who has been detained under section 3. They may also, under section 5 (1) (f)  seize and retain for testing anything that he has in his possession. Paragraph 6 (a) in Deputy Woods' amendment is directed at personal belongings. It is intended to cover the retention or taking from a detained person of such personal belongings. It attempts to provide that personal belongings shall not be interfered with, that is, removed from the person unless authorised by the section or, alternatively, unless it is necessary to do so for the person's own safety. This paragraph adds nothing to the law. The first part states the obvious, that the property shall not be removed unless the section allows it. If the section did not allow it, it would not be lawful to remove it anyway.
The second part is already the common law position and does not require restating in the section. It is implicit in the right of search which the section gives. I quote from Halsbury, fourth edition, 1976 on the common law position:
The common law position prevents searching, in effect, except under those conditions. It prevents taking objects from people unless they could injure themselves with them or, alternatively, unless the object could be a matter of evidence subsequently.
Paragraph 3 of Deputy Woods' amendment, states that where anything is removed from the possession of a detained person the details of anything so removed shall be entered in the record of the Garda station by the member in charge. I fully accept that and it will be covered by the regulations. It is already existing Garda practice and there is no problem in accepting it.
A person arrested on a criminal charge, may be searched and deprived of articles which might be used to inflict injury upon himself or others or to damage the place in which he is confined, and he may be deprived of anything suspected to be connected with the charge. Persons who are arrested in a state of intoxication or insanity may be deprived of all their property for its safe keeping.
Unless a person is likely to dispose of articles suspected of being stolen by dropping them en route to the station or is believed to be in possession of a dangerous weapon or is insane, a search should not be made until the prisoner is brought to a place of detention.
Females are to be searched by a female searcher. As a general rule, a female is not to be searched except when charged with larceny or when she has possession of counterfeit coin, or if the member in charge suspects that she has concealed upon her person any weapon, or any vessel containing intoxicating liquor.
When a prisoner is not searched the member charging him should advise him to hand over, for safe keeping, any property in his possession, particulars of which should be entered in the Prisoners Property Voucher Book or Station Diary.
When a prisoner is searched each article taken from him should be called out by the member searching him and entered in the Prisoners Property Voucher Book by the station house officer or in the Station Diary by the station orderly. Coin and currency notes should be entered in their separate denominations. A member should not search a prisoner at a station unless in the presence of the member in charge, station orderly or another member.
The matter can be covered by regulation and I fully accept paragraph 6 (b). The concept of removing objects necessary for the person's safety is contained under the present common law and in the Garda regulations. There is no argument about what the Deputy has said, but it is not necessary to amend the Bill in the manner suggested. I certainly think that (b) is an appropriate matter for the regulations.
Dr. Woods: Certain things are specifically authorised by the section, but I have come across cases where a watch is removed. It would seem hardly necessary to remove a watch where a person is not intoxicated or insane. It would contribute to the isolation of the individual. What is the present practice there?
Mr. Noonan: (Limerick East): It is difficult to construe a watch as something which could be used either to effect an escape or to cause damage to a person. On the other hand, the glass in spectacles could be used to cut a person, to inflict damage.
Mr. Noonan: (Limerick East): Perhaps. I have not come across this specific complaint of a watch. Articles like belts and boot laces are obvious and there have been a number of tragic examples caused by the failure to remove them.
Dr. Woods: The point made to me is that removal of a watch has been a means of isolating a person. Its removal would not be necessary if someone was going to be with the detainee during the time. The Minister agrees that it is hard to see how a watch can be used other than that the person might try to swallow it. If you get to that stage you are pretty bad. Would the Minister look at that? I accept that in his regulations the Minister will bear in mind paragraph (b). In relation to paragraph (a) would he bear in mind the  question of the psychological effect on a person of things being removed? Would the Minister circulate the regulations he has in relation to search?
Mr. Noonan: (Limerick East): They will be in the record. I am trying to give the flavour of the detailed regulations which are there already. They are internal Garda regulations and at the moment they are confidential.
Mr. Noonan: (Limerick East): When the new regulations come out they will be statutory. I accept what the Deputy says and I will check about the watch. The Garda find themselves in a difficult situation with the removal of possessions which detained people might have. We have situations where there have been deaths in Garda stations. I remember one in particular where Deputies in the House questioned me about whether the person was adequately searched, whether the person was searched for matches, whether laces were removed from shoes or the belt was taken from the person. On the one hand, there is pressure on the Garda Síochána and on the Minister, especially if some tragedy occurs, to ensure that anything which could injure a person is removed. There is the point which is now being raised that the removal of personal possessions should not be used in any way to put further pressure on a detained person and to use the 1976 Act or the Offences Against the State Act in a manner in which it was not intended to do. The thing about the watch is interesting. I had not adverted to it previously.
Mr. Noonan: (Limerick East): The powers in the section which will apply to persons detained under section 3 are considered to be the minimum necessary to enable the Garda to investigate an offence  properly. They are identical to those provided in section 7 of the Criminal Law Act, 1976, which apply to persons arrested under section 30 of the Offences Against the State Act with two exceptions, which are important. First, the authority of a superintendent is required under the Bill for the taking of photographs or prints from a detained person and, second, strip searching is being prohibited under the Bill except for explosives and drugs and then only on the authority of a superintendent. That is to maintain the provisions of unqualified search under the Offences Against the State Act and under the Misuse of Drugs Act. It is certainly not a new power being introduced. It is a limitation on the power of search in the Bill so that strip searching is excluded except where it is allowed under existing law and the unqualified provision for a search under the laws I have mentioned.
As I said, in reply to one of the amendments, at common law the Garda have power to search an arrested person if he is suspected of having an offensive weapon concealed on his person. They may also search a person charged with an offence in relation to property likely to be material evidence and to take such property.
The question of fingerprinting is interesting. There is no statutory authority for taking the fingerprints of an arrested person, apart from the provisions of the Offences Against the State Act. If somebody is arrested at the moment the Garda have not the power to take that person's fingerprints. At present the Garda rely on the Regulations as to the Measuring and Photographing of Prisoners 1955, S.I. No. 144, made under the Penal Servitude Act, 1891, for authority to fingerprint persons charged with an offence. These regulations are of doubtful enough validity in the sense that they are regulations for measuring and photographing people and they are being used for fingerprinting. Even if the validity of regulations were not in doubt at all, they only apply to people who have been charged with an offence and they do not extend to fingerprinting people who are reasonably suspected of having committed an offence.  This section confers a general statutory authority for fingerprinting a person suspected of a serious offence who has been detained under section 3.
I have already said that subsection (3) prohibits strip searching of a detained person except on the authority of a Garda superintendent or higher officer and then only where he has reasonable grounds for suspecting that the person has controlled drugs or explosives concealed on his person. There was a suggestion made during Second Stage that powers of strip searching should be extended to other serious offences. I do not agree that it should. The power of search I am introducing here is the minimum necessary. I do not want to introduce a new power of strip searching under this section. I want to maintain the existing unrestricted power of search in relation to the Misuse of Drugs Act. I have said this a couple of times because outside the House it has been said several times that not alone am I introducing the power to strip search de novo but that I am also allowing for a situation where people can be searched by members of the opposite sex. This is not true.
It has been suggested that a prohibition of the searching of females by male gardaí should be written into the section. There is no necessity to do that because it is achieved under Garda regulations already. The Offences Against the State Act has been operating for a long time now with these powers of search. The Misuse of Drugs Act has been operating for seven years now. Whatever other comment has been made on them nobody has complained on any occasion that females were being searched by male gardaí. I know there has been comment outside the House and that this has been very long run outside the House. It is already in the internal Garda regulations. I propose that this matter will be covered in the regulations relating to the treatment of persons in custody so that it will be a statutory obligation now that people will not be searched by members of the opposite sex.
Subsection (4) makes it an offence for a person to refuse to give his name and  address or to obstruct the taking of fingerprints. Deputy Woods spoke about this and I replied to him when we were discussing raising the fines from £800 to £1,000. Subsection (5) brings the penalties in section 7 of the Criminal Law Act 1976 for obstruction of a garda into line with those in subsection (4) of the Bill. The fines are being increased under section 7 from £500 to £1,000. I dealt with that when Deputy Woods asked questions about the necessity for this particular provision and when we were discussing the level of the maximum fine which would be required. Basically, we are talking about the powers which are already in the Criminal Law Act, 1976, which apply to a series of scheduled offences. We are taking exactly the same section and putting it into this Bill with two exceptions in that the authority of a superintendent is required for the taking of photographs or prints from the detained person and that strip searches will be far more confined than the existing search provisions under the 1976 Act and the Misuse of Drugs Act.
People have been arguing that the thrust of the Bill was to bring about a situation where the Garda would be relying more and more on confessions and self-incriminating statements. This is the section which allows the Garda to investigate an offence and to establish forensic evidence, whether by photographing, fingerprinting, palm printing or taking swabs. Deputies have been making the point that we should move towards the detection of crime, that the Garda should get hard evidence and should not rely on self-incrimination. This is the section which allows the Garda to get the hard evidence.
Dr. Woods: The Association of Criminal Lawyers have commented on the section as a whole. They say that this section contains the powers of the Garda in relation to detained persons and also extends the powers in relation to persons detained under the Offences Against the State Act. They go on to say that, standing on its own, section 5 (1) to (3) does  not make any great inroad into the present rights of detained persons but it does create an offence for failing to give a name and address, which can merit a fine or imprisonment for 12 months. They state that there is no obligation on the Garda to inform the person of the provisions of the section and submit that the section should contain such a warning. I made this point earlier. A warning should be included and the regulations should include the giving of a warning that refusal to give a name and address or the giving of a false or misleading name and address would constitute an offence.
To obstruct a member of the Gardaí in the exercise of these powers will be an offence punishable on summary conviction by a fine not exceeding £800 or imprisonment not exceeding twelve months or both (subsection (4). Subsection (5) provides for amendments to section 7 (2) of the Criminal Law Act, 1976 (which deals with the powers of the Gardaí in relation to persons detained under section 30 of the Offences Against the State Act, 1939) so as to bring that subsection into line with subsection (4) of this section, i.e. the corresponding offence under section 7 of the 1976 Act will no longer be indictable.
We accept the need for the Garda to have powers in relation to detained persons. I assume that these powers will not be used as a regular practice. Obviously a name and address will be demanded but presumably the question of photographing and so on will arise only when there is a reasonable indication that a person was involved in the offence which is being investigated. The handling of the material acquired is dealt with under the next section. We are supporting this section but I would ask the Minister to look at the possibility of giving a warning in relation to subsection (4).
Mr. Kelly: I have no objection to the section but I wonder to what extent it reflects reality. I do not want to raise a hare about misbehaviour of any kind. Although the section refers to the kinds of detail which section 5 contemplates, at least those represented by a photograph, including a negative, a fingerprint and a palm print, there is the question of the physical prevention of somebody from making a photograph of a photograph or fingerprint or palm print. I appreciate that the first subsection refers to every copy and record thereof, but practically that can only mean every copy and record thereof of which the Minister's agents or the police have knowledge. We are being a bit unrealistic if we suppose there are not policemen in every police force who are so zealous that they will regard the fingerprint of Mr. X or Mrs. Y as something they would be sorry to see disappear, even after six months, and they will make sure that it does not. This is in no sense intended to be a reflection——
Mr. De Rossa: Section 5 creates a new offence, that of refusing to give a name and address. I have already expanded on that point to indicate that it includes far more than this. An offence will be committed if a person refuses to be searched, photographed, palm printed and so on. fairly significant new offences are being created.
The natural reaction of an innocent person detained by the Garda who feels he is not guilty of any offence is to refuse  to be treated as a criminal and the taking of photographs would indicate to most people that they were being treated as such. I have concrete examples of situations where young men stopped by gardaí felt they were innocent of any offence. Subsequently one of them ended up in court on a charge of assault on a garda arising from the garda's attempt to get them into a squad car. Likewise the other person was charged with assault arising from questions being asked of them and so on. It is not uncommon for people who regard themselves as innocent to react strongly against being taken away in a squad car to a Garda station. In this case they will also be subjected to having their photographs taken and so on.
It is essential that the provisions of this section be tightened up to ensure that a person will be fully aware that they will be guilty of an offence merely by obstructing the activities of the Garda in relation to them. The case about which I was speaking resulted in a young man being sentenced in the District Court to six months imprisonment. It cost him £1,000 to appeal the District Court decision, when the District Court decision was thrown out and the relevant court judge indicated that the charge being so flimsy should never have been brought in the first place. Now the situation will be that a person can be charged with an offence simply by refusing to give his or her name and address or allowing themselves to be photographed or finger-printed. This section should not be passed too easily without some detailed discussion.
The other aspect of this section about which I am concerned is that the court judgment given in relation to a young person being entitled to have a parent present during questioning, as far as I can ascertain, does not apply when the young person is being finger-printed, searched or photographed. That is a major defect of this section. Indeed the judge in giving his decision in the case to which I referred earlier — the Minister himself furnished me with a copy — indicated that it was important that the Garda be obliged to notify a parent and that a young person should not be questioned until a parent  is present. If the judge felt that way in relation to questioning then surely it is equally important that a parent be present when a young person is being finger-printed or photographed. Perhaps the Minister would comment on that aspect.
Mr. Taylor: I have a couple of comments to make on this section. We should realise that it is easy for us sitting in this House to be casual about the written word. We should consciously appreciate the fact that what we are doing in this and other sections does involve a very substantial attack on and make in-roads into civil liberties. Let us be clear about it — it may not happen often but there will be occasions from time to time when a completely innocent party will find himself or herself, by mistake if for no other reason, being detained for many hours in a Garda station, having their names and addresses demanded, being searched, photographed, finger-printed and, at the end of the day have it transpire that they were a perfectly innocent party. We should be consciously aware of what we are doing here and assess the parameters beyond which we are not prepared to go, examining the extent to which this inroad into civil liberty is or is not warranted.
As has been pointed out by many other Deputies, a new offence is being created here and people will not know of its existence. As a basic essential before a person would be guilty of an offence under this section, a new offence, there would have to be a warning given to him, have it specifically drawn to his attention that it would be an offence to refuse to submit to one of the tests involved, the rendering of name and address, taking of photographs, obstruction of a garda and that, if such a warning was not given and was not specifically drawn to that person's attention, then the offence would not be committed. Just as for the offence of dangerous driving it used to be the position that before the offence was maintained the Garda were obliged to give notice of intention to prosecute, for these new offences it should be a condition precedent to the commission of the offence  that a person be specifically warned that if they fail to furnish the relevant information, fail to consent to photographing fingerprinting or whatever they would be committing an offence and that failure to give such notice would mean that that offence had not been committed.
There could be a situation in which a perfectly innocent party was pulled in and detained. Understandably such a person would be extremely angry. He, knowing that he is perfectly innocent of any offence whatsoever, finds himself, to say the least, at loss of his liberty and in a harassed position at the hands of the Garda. Such a person would be angry and it would be quite understandable that if an innocent party refused to give his name and address or refused to allow himself be finger-printed and so on a situation could evolve in which that person, who started off at the beginning of the exercise being perfectly innocent, ends up as a result of the procedures being guilty of an offence under this section. It would be entirely intolerable that any person, having been innocent to begin with, would find themselves, as a result of the operations of this section transformed into a criminal, a criminal amenable to a fairly substantial penalty, £1,000, in accordance with the Minister's amendment, plus one year's imprisonment. For that reason I should have thought that it would be a basic requirement that a warning be given to such persons, it being drawn specifically to their attention that they would be committing an offence if they failed to comply and that they be given a reasonable opportunity and sufficient time to consider that and take a decision on the matter. I agree that that infringement of civil liberties is necessary anyway. But if that is to be, then as a minimum the safeguard ought to be implemented.
 I would feel it would be better, meet the requirements of justice better and have justice seen to be done, if the requirement there was that of a district justice instead of any officer of the Garda Síochána. Just as the authority of a district justice is required for searching premises, so should the authority or prior sanction of a district justice be required for searching a person. When a person is in Garda hands I would say that there should be some independent official — namely, a member of the Judiciary in the person of a district justice — who would look at the situation objectively and determine whether or not these infringements were warranted in the circumstances that would be presented to the court by the prosecuting authorities.
Mr. Skelly: I have some brief comments to make on this section. I agree with some other Deputies that, apart altogether from section 7 of the Criminal Law Act, 1976, where if a person obstructs or fails to give his name and address and so on he or she is subject to prosecution, this would appear to be a new offence. I do not understand the resistance of the Minister to the suggestion that people should be clearly forewarned, because it is unlikely in most cases — some examples have been given — that people will refuse for different reasons. They may think they have a right to refuse to give their name and address but will then be subjected to a maximum fine of £1,000 or 12 months in prison. The Minister felt that in practice gardaí tell people. I do not know if that is the case. In fact, it appears that it is not the case. What I object to is this cute form of investigation, the cuteness of the whole thing, leaving it all to the goodwill of those responsible for the arresting and saying that they will not in any way abuse the powers, make fools of people or take advantage of their innocence.
I heard of two leaving certificate girls from Coolock who while walking along a street one evening following the breaking of a window in an area were questioned by gardaí from a squad car in regard to that crime. The girls refused to give their names and addresses because  they did not want their parents to know they were out at that time. They were taken to the Bridewell where they spent the night. On the following day they were brought before the court and through nerves, giggling and so on, not understanding the procedure in the District Court, were sentenced to seven days in prison for contempt of court. A lot of people were outraged by that. Such things happen. I do not see any complication in inserting a provision to deal with such occurences. It is not a good enough case to say that this is a complicated matter, that lots of forms have to be filled up and that a garda might inadvertently omit something. It is a simple matter for a garda when he stops a person to tell him or her that refusal to give a name and address could render them liable to a fine of £1,000.
Police work by its nature — it may be an occupational hazard — trains people to be suspicious and to watch out for things that the rest of us would not even dream of looking for. In that sense people investigating a crime have an enormous advantage over innocent people in that they know a lot of things innocent people would not and could take advantage of. I do not understand why the simple warning I have suggested could not be given.
I hope that when the Bill is passed there will be an effort by the Garda to inform the public of their rights and the changes that have taken place. In this case the quality of the warning should be clear. It is not sufficient to say that a garda will give a warning. It is necessary to outline exactly the form that warning should take so that people will not be under any doubt as to their rights. A safeguard is needed. The warning should be given in a proper manner. I realise that in the final analysis people have the interpretation of the courts to fall back on. We should advertise this aspect of the Bill and the fact that the Garda will be required to inform the people they arrest, if they refuse to give certain information, what will happen. It is done in other countries, including the United States, where police refer to the Constitution and the rights of those arrested.
I should now like to deal with the  decision to increase the fine from £800 to £1,000. The amendments under discussion, Nos. 21, 22, 28, 33, 34, 44 and 52, proposing to increase the fine to £1,000, indicate that people will need a lot of money. Deputy De Rossa gave a good example today of people who in order to defend themselves, although they may be innocent, require substantial sums of money. Very often people will not be in a position to raise that money. Such an amount of money will not be available in most instances. As I knew the farming community — one of my parents was from the country — there was always a large sum of money, £500 or £800, lying about because farmers did not go to town very often; but one would not find such an amount of money in most houses, particularly where the breadwinner depends on a weekly wage. In most cases there would not be a bank account with a pot of money in it, particularly in city or deprived areas. For that reason jail sentences will ensue in most cases, although it will not be the maximum sentence.
Those of us who have clinics and look after local authority areas are aware of the many people who fall behind in their payments of rent and cannot catch up on the arrears although the amounts involved are small. In some cases the amount is less than £100 but it can rise to as much as £2,000. That is an indication of the pressure people are under. Those people would not be able to get a large sum of money together. It would be difficult for them to get help from their friends. The people who are not badly off or the wealthy criminals are likely to have money and will not be affected, but it will be jail by default for the poor.
I understand why in certain circumstances it is necessary to be in a position to take fingerprints, particularly at the scene of a crime. That enables the Garda to check fingerprints found at a scene against criminal records. That would be a useful way of improving the detection rate. Section 5 (1) (c) and (d) required the authority of a superintendent before a person can be photographed, finger-printed or palm-printed and we know  from experience that that is unlikely to be refused. This experience will not be forgotten by those who are detained and have to go through the humiliating procedure of being photographed, finger-printed and palm-printed. However, I can understand the necessity, especially after a crime has been committed for fingerprinting, but I believe also that a great deal of resistance and bitterness will come about if this is used widely and if it is not controlled and used only in cases of absolute necessity. The Minister has taken well the worries of Members in relation to searching, being searched by people of the opposite sex and so on, and I am reassured about all this.
They are the only points I have to make in that regard. Really it boils down to the fact that I cannot understand why there should be any resistance to giving a warning under this section. In my mind at least there is a slight suspicion about the necessity for the Bill and the section when provision is not made for this warning. I emphasise that people who are going to be detained or are brought into detention very often really do not know what is happening and they are in such a state of shock that it may not be enough for a garda or arresting officer to say later that he warned the person. It will be necessary to give the warning in the form of a notice and to have it displayed in the place of detention. I do not think that we will lose out at all by being absolutely frank and clear about what is likely to happen in the event of refusal to give name and address or other such information.
Mr. Noonan: (Limerick East): The powers being requested for the Garda under this section are the minimum that I consider they need. It is fairly obvious that if powers are given without any sanction whatsoever and if the Garda can photograph, fingerprint and take the names and addresses only of people who are willing to volunteer this information then they do not need the power in the first place. Any law requires some sanction if people do not comply with that law. That is fairly obvious.
On the question of a new offence being created, that if you obstruct the Garda  you are liable to a maximum fine of £1,000 or 12 months imprisonment, that offence exists already under the Criminal Law Act, 1976, the Road Traffic Act and the Litter Acts, to go from very serious legislation in offences, so to speak, to less serious ones.
Mr. Noonan: (Limerick East): Sometimes they are prosecuted, I think. In that situation nothing has come to my notice which would indicate that we must write into this Bill a warning to people. I have had no complaints about the operation of that section of the 1976 Act. My reluctance to accept the advice which has been given to me about warning that people may be in danger of committing an offence arises because I do not think it is necessary at all. However, I am prepared to think about it again, not in the context of moving an amendment to the section but of seeing whether it is necessary to provide for that under the regulations. It is a matter which has been plucked out of the section and is beginning to take on a life of its own here in the House. I do not think that a serious concern exists there in practical life, but I will examine it again and if it is so I will see if anything can be done in terms of Garda practice and their internal regulations or in terms of statutory regulations that I am preparing.
Deputy Taylor made that point and he went on to talk about the powers being conferred here on superintendents whereby one can be photographed, fingerprinted or strip searched only if a superintendent authorises it. It would not be sufficient for the member in charge or the arresting member to authorise these procedures. His suggestion was that it would be more appropriate to take somebody before the District Court. I do not think that is necessary, and it is not practical. The 20-hour detention arises only with the consent of the detainee, if questioning is to be suspended between 12 midnight and 8 a.m. Therefore, the 12-hour period of detention and shorter will be quite frequent. In addition, for many  people arrested on reasonable suspicion and detained under section 3 the questioning part of the procedure would be quite short, but the taking of fingerprints and photographs might be a very important part of the Garda investigation as they seek to detect a crime. Somebody could be in the Garda station for half an hour or an hour, give his name and address, be asked a couple of questions and then fingerprinted because the Garda have fingerprints at the scene of the crime and they will want to match them against the prints of people of whom they have a reasonable suspicion of being involved in the crime. Therefore, the question of going before a district justice for this part really should not arise. A superintendent is a senior Garda officer and our superintendents can be trusted to carry out this authorisation in a trustworthy way.
People talk about the humiliation of being photographed. That is coming from people around the House here who are frequently photographed. What humiliation is involved in being photographed? I am upset at times with some of the photographs published of me but I never felt humiliated when the photographing was taking place.
Mr. Noonan: (Limerick East): We are not North American Indians who feel that their soul is being stolen when their photograph is taken. What does fingerprinting involve? I understand that it involves putting your fingers on some kind of pad. These are not long drawn out processes.
Mr. Noonan: (Limerick East): I do not see it as a major encroachment on civil liberties. It is the minimum necessary for the Garda to investigate offences. On the question of the fines which Deputy Skelly raised, these are maximum fines. They are being lined up with what is proposed  in Bills that have gone through the House quite recently. It is appropriate that fines should be in general lined up with fines in other legislation and should be updated from time to time. Experience in the courts is that maximum fines are imposed only very rarely and the judge has discretion to choose a sum in accordance with the means of the person before the court. The point was made on several occasions this morning that access to justice is as open as access to the Ritz. If you can pay for it it is freely available. That argument may have some merit, but the way it is being put is as if the cost of justice was the fault of the Government. It is expensive to take cases before the courts, particularly on the civil side, and it is very expensive to run them right up along through the whole paraphernalia of solicitors and barristers which one requies to get something into the High Court, but a great deal of the cost is due to the fees charged by solicitors and barristers.
Mrs. Barnes: The Minister has said that this is really much in line with offences under the Litter Act and the Road Transport Acts but, whilst the fine may be the same, the procedure involves the invasion of a person's privacy and the behaviour that might be shown towards that person in detention in not alone taking his name and address but searching or causing him to be searched and photographed, and his fears as to how that photograph may be used arise. A police station is not a photographic studio. I am talking about the psychological pressures that can be brought to bear on people. They are subjected to an experience over which they have no control. There is a sense of outrage, particularly in a person who is innocent. At least people should be warned beforehand of the consequences if they obstruct this procedure. It is an undesirable situation.
From the point of view of the Garda, it would be easier for both parties if the Garda could carry out the procedure in a good mannered and civilised way, first having spelled out to the person concerned what the consequences of obstruction  would be. If such a procedure was adopted it would help to ease the humiliating procedures to which people will be subjected. Subsection (3) of section 5 states that these powers do not empower a member of the Garda to require a person to remove his underclothing, except where such member, with reasonable cause, suspects that he has concealed on his person a controlled drug or an explosive substance, and a member of the Garda Síochána, not below the rank of superintendent so authorises.
However, because of the prevalence of the drug problem it would be easy for a garda to say that with reasonable cause he might suspect a person was carrying drugs. I should like to see the garda comply with all the procedures before strip searching a person. A garda might use a threat. A junior member of the Garda might think that a threat would render a person more vulnerable, would inflict psychological pressure, that the person would regard a strip search as extremely humiliating. We know that in the case of young persons in particular even the threat of a strip search would be nearly psychologically unbearable. Therefore, I suggest that we must ensure the the Garda would have to go to the superintendent first.
Mr. Kelly: I agree with most of what the Minister has said in regard to this. I heard only the latter part of Deputy Skelly's interrvention. Deputy Skelly suggested the idea that the section might do away with the specific requirement that somebody would be liable to punishment if he suspected these various forms of record, but this seems to be allowable in other branches of the law — the furnishing of records and so on. In all these cases refusal to submit is an offence. It may be that in exceptional cases those Acts go out of their way to provide that the officer would articulate the demand and the consequential offence on refusal. In most cases people do not get specific warnings. That is wrong. Any reasonable member of the Garda, or a health inspector, or a weights and measures inspector, or any such officer, as a matter of common decency will say to the person concerned: “If you refuse to do certain things you are liable to prosecution and to heavy penalties”. Of course the inspector would not go out of his way to pretend that criminal consequences would not follow a refusal.
Whatever validity Deputy Skelly's idea may have in regard to this Bill, the same validity must apply in regard to any other part of the law. Therefore, I do not think this is a serious flaw in the section. I must confess I am more or less on the Ministry's side vis-à-vis the points made by Deputy Barnes in regard to the seriousness of applying measures of this kind at all. I do not want to go back on ground covered on Second Stage but the thrust of the Bill seems to be to push back the moment at which the citizen's suspicions are aroused. People are every day subjected to such matters even though they may be totally innocent. If somebody is arrested and a prosecution is brought he is still an innocent man but he may have to go through a court hearing before he is acquitted.
The effect of the Bill will be to push that back a little further — there is a certain inching back of the tide against the traditional conventions in section 3. However, as the Minister has pointed out, the powers of sections 3 and 5 cannot be exercised against any old person the Garda may bring up for any old reason, for example, hanging around the Phoenix Park when he should not be there. Section 3 (2) refers to a person whom a member of the Garda Síochána arrests, whom he, with reasonable cause, suspects of having committed a very serious offence, namely, an offence contemplated by subsection (1), an offence which by virtue of any enactment might attract the punishment of imprisonment for a term of five years. It is a very serious offence. As I have said, we are not talking about just any old person being taken up for a trivial offence and we are not talking about an arbitrary, completely subjective, belief on the part of a police officer. We are talking about a belief which a garda holds on reasonable objective grounds. The garda must be objectively reasonable because the slightest element of malice or neglect or caprice in the  garda's behaviour will make him liable — at least in theory, and I am not trying to exaggerate the value of that theory in practice — to punishment for false imprisonment in the same way as any other person. While the person to whom section 3 applies must remain an innocent person, he is not just any innocent person but one who, in the light of the Minister's encroachment on the smiling sands of civil liberty, so to speak, is in a qualified position vis-à-vis his previous situation. When we weigh the degree of the encroachment and the quality of it in an age in which there are so many horrors all around us, I cannot regard it as being very serious. We are talking of photographing people, taking their fingerprints and so on.
Mr. Kelly: I am at one with Deputy Barnes in that it must not be the case that a garda would simply say in any instance that section 5 operates and that consequently all these measures must follow. Obviously, only those measures which seem appropriate to the circumstances of the case should be applied. I am not trying to minimise what would be the seriousness of applying an arbitrary power of search or of searching someone capriciously or for the purpose of humiliating him, but in the kind of world in which we are living we must strike a balance and that may involve pushing the line a little distance. That is something many people seem to agree with but which they seem unwilling to accept when it comes to the point. Getting the balance right may involve pushing the line a short distance temporarily into an area which was conventionally one of civil liberty.
There is one other marginal matter to which I would like to draw attention. This country might be easier to police if all of us had to carry identity cards. I am not sure that the Garda have ever recommended such a step. The use of identity cards might not alter very much the level of crime. We would prefer not to have them but on the Continent they are the norm where it is an offence not to have some means of identification. We apply  some rules which serve in large measure the purpose of the detection of potential crime. Why, otherwise, must I carry number plates on my car and in addition keep them illuminated at night? My criminal record is not extensive but about 20 years ago I was convicted for failing to light a rear number plate. The bulb had become broken and I had not noticed it. Those were the days when a much smaller police force spent time prosecuting people like myself for such offences, but we are living in different times. I only mention the incident by way of a humble illustration of a measure which one could easily argue has civil liberty dimensions, because the fact that one's car must have a number plate which is identified officially would in theory enable not only the Garda but any private person to track the motorist's movements, to find out who his friends were, the houses he had stopped at and so on. We take that in our stride and we do so because it is directed largely at the detection of offences associated with road traffic. The measure has not been applied unreasonably. It has been applied by the reasonable people who make up the great majority of the police force.
I hope I am not being blasé in taking it for granted that in respect of the powers of a section such as the one we are dealing with here, though I know they are incomparably more closely connected with the human personality than is the number plate on one's car, the same reasonable spirit which has informed the application of law and order in respect of traffic control and so on would equally inform the application of the types of powers we are discussing. I hope that the Minister, apart from making the powers of the Bill temporary, will seek opportunities of finding ways in which the legislation can be debated by this House from time to time.
Mr. De Rossa: While the Minister has responded to various remarks made, he has not referred to the point I made regarding the presence of parents while young people are being photographed, searched, or fingerprinted. I repeat the point that if the courts consider it necessary  that a parent should be present during the interrogation of a child it is equally reasonable that parents should be present when tests of various kinds are being taken.
On the question of the age categories to which the Bill applies, as it stands it applies to anyone over the age of seven. The Minister has given an undertaking to raise that to 12 or something in that region. But, even if he raises the age in this respect to 12, the legislation will apply to young people from that age upwards and I do not consider it acceptable that such young people should be subjected to these tests in the absence of parents.
Dr. Woods: The Minister has talked about access to justice and said that the Government could not be faulted so far as such access is concerned. I appreciate that. He then mentioned the size of the fees. I appreciate that aspect of it, too, but I should like to keep it in the context in which the point was raised and that was in the context of the consequences of what we are doing in this Bill. In that respect I raised the point earlier that all of us here have a responsibility and must recognise the difficulty which can arise and must provide for that difficulty.
The question of fingerprinting has been discussed at some length. I take it that the powers being provided for here are required to deal with such crimes as car stealing and house breaking in which instances it is not possible at present to take fingerprints. Unless somebody is already in the system there is nothing to compare fingerprints with. The provision here would enable the Garda to do a cross-check against fingerprints they would take at the scene of car stealing or of house breaking. It is in that context that we see it as being useful. There are a great number of house break-ins and car thefts at present. The question of car thefts will probably come in under a Road  Traffic Bill. In the case of a house break-in, for example, the Garda will take fingerprints but there is nothing to cross-check them with. Perhaps the Minister might elaborate on that.
In regard to the section which deals with the giving of a name and address and where a person fails or refuses to do so or gives one which is misleading, what about a person who is deaf or dumb or who is mentally handicapped? I presume we would rely on the common sense of the Garda, but it is more marginal when a person is mildly mentally handicapped because they may appear to be normal. I do not know how the Minister will deal with that. It may have to be left to the intelligence and goodwill of the gardaí operating the section. It is important that we make it clear that we do not intend the section to be abused and would expect the Garda to be vigilant when applying this section particularly with regard to people who might not be able respond in the normal way.
What extra resources does the Minister see as being necessary to implement this section? Obviously a great deal of equipment will be needed to implement the section properly. It may be some time before the equipment is provided and, therefore, some time before the section can be put fully into operation. The Association of Garda Sergeants and Inspectors stated that the net effect of these provisions was that considerable extra resources would have to be made available. They said that extra sergeants and additional clerical staff would be required and that the accommodation in Garda stations would have to be improved. They pointed out that many stations do not have proper interview rooms. There would need to be a programme of in-service training for members. There would also be a large number of standardised procedures and forms. Has the Minister thought about the extent of the resources which will be required to implement the section? In what percentage of cases does the Minister think this section will be used? Presumably in many cases it will not come to this.
Where proceedings for an offence to which section 3 applies are not instituted against the person within the period of six months from the date of the taking of the photograph or print and the failure to institute such proceedings within that period is not due to the fact that he has absconded or cannot be found, the destruction shall be carried out on the expiration of that period.
Nobody wants to have details like that on record. One of the humiliating things about being photographed and finger-printed is that one is not treated in a usual way. One would probably feel like a criminal. I do not imagine one would be relaxed or comfortable knowing that there is a record of this nature held in the depot and that when a crime is being investigated one's photograph and fingerprints are thumbed through and that one's name appears on a list together with those of other people. This is a serious loss of liberty. I do not think one would feel happy until such records were destroyed.
The Minister does not see anything wrong with that, but then neither did he see anything in Deputy Woods' suggestion that every hour someone should go to the detained person to check that they were satisfied with the way the detention and interrogation was proceeding. The Minister suggested that they might be asleep and would be disturbed. That is a naive approach. It seems that the Minister is not aware of the reality or is so naive as to think that a person would not be bothered by being fingerprinted or photographed or that a person could possibly sleep in the circumstances that pertain in our prisons or in the Bridewell. How many of the 33 women last weekend slept during their 30 hour detention? it would be interesting to find out, as I am sure we will in the coming weeks.
It is not fair to assume that reasonableness will be used at all times. It is not  reasonable that a man who is detained for allegedly causing £15 worth of damage to another person's car can be brought to a station and have his belt, laces and tie removed and be kept there for three hours. That is not reasonable behaviour. Deputy Kelly said we were not talking about any person or any crime but rather serious crimes under section 3. We had a long drawn out discussion on that over a number of weeks. While it was not universally agreed it was made clear that we are talking about a wide range of offences which include larceny and the theft of small amounts of money which would enable this section to apply. Five years is the maximum sentence but the offences for which people can be detained and to which these two sections will apply are wide ranging.
I agree with Deputy Barnes and her comments on the threat of strip searching. Although this does not happen a lot, it does happen. In cases where women were detained the threat that they would be strip searched by a male member of the Garda was used. The thought of this often causes them to go into hysterics.
I am glad that it has been mentioned and that the Minister is aware of it. It is not permissible and it is not forseen that male members of the Garda will be allowed to do that. We should take on board also the threat that that could happen because that in itself is very upsetting.
Mr. Noonan: (Limerick East): Deputy Woods made a number of points. He hoped the powers in this Bill would be used sensibly by the Garda when dealing with people who were mentally handicapped or intoxicated. I express that hope as well. I cannot envisage a situation where somebody who is mentally handicapped could be considered to be guilty of any crime because they do not have the mental capacity to commit a crime. He mentioned also extra equipment being required at Garda stations. I expect there will be a significant increase in the number of photographs and fingerprints being taken, but it is very difficult to quantify the additional demands which  will arise. The power is framed in such a way that it would not apply to all detainees and it would require a superintendent to authorise the photographing and taking of fingerprints. These powers are already exercised under the Offences Against the State Act and consequently the equipment is available throughout the State, particularly in the larger Garda stations where people are fingerprinted and photographed under the Offences Against the State Act. There would be some increase in equipment necessary but I do not think it would be a significant cost in the context of the overall Justice budget.
Where there might be a problem is in the forensic science laboratory. I am concerned that the laboratory would be appropriately staffed and have the necessary equipment. They are very well equipped at the moment but they will need extra staff. In their submission the Association of Garda Sergeants and Inspectors said they would need many extra sergeants and clerical assistants. Obviously that is what they would say. They are representing their members and they will make demands for extra resources once the Bill comes into effect. The resources which will be necessary will not mean a major increase on what is there already. Remember, detention will take place in central Garda stations, three or four in a Garda division. These are already well equipped. There is a fairly extensive building programme underway throughout the country and the physical surroundings in stations will be much improved, as will the equipment available.
Deputy Woods asked if I could estimate the percentage of cases. I could not, but there will be provision in the regulations for records to be kept of the number of people detained, the number photographed, fingerprinted and so on. We will get the pattern as we go on. In my view it would not be appropriate for me to give an estimate now. There is no intention that this will apply to all detainees, only to a proportion of detainees.
Deputy Skelly mentioned the level of offences. There is a wide range of serious offences. In his previous intervention he  spoke about a garda stopping somebody walking along the road and asking him for his name and address and said that if the person did not give that information he would be liable under this section. That would not arise because the powers here only arise where a person is detained pursuant to section 3. One has to be detained pursuant to section 3 on reasonable suspicion and taken to the Garda station before this section can be implemented. It is not an offence to refuse to give a garda your name and address if you are stopped on the street.
Mr. Noonan: (Limerick East): Strip searching or the threat of strip searching could be a pressure which would be objectionable, but if evidence or a confession is obtained under such a threat it would be inadmissible. I take the point that was made and consider it was worth making. I do not think anybody is enthusiastic about strip seaching and nothing in the Bill gives a new power to strip search. This is maintaining the existing power under present law. It is worth making the point, for the record, that explosives have been smuggled into places like Portlaoise Prison in the orifices of the body and explosions have occurred within the prison and on one occasion people lost their lives. Drugs are smuggled into the country in the same manner. However distasteful we find the power which is there in existing law, I think these powers are necessary. As I said, I am not extending the power in the Bill. As a matter of fact, the power of search in this Bill is being restricted so that it does not include body search, and the reference to drugs and explosives is to maintain the power under existing law.
I take the point made by Deputy Barnes and Deputy Skelly about the threat of strip searching being used as a pressure, because this is not something we could agree with. Even where it might be appropriate to have a body or strip  search subsequently, where drugs or explosives are involved, the fact that the questioning garda would use it as a threat would cause that evidence to be inadmissible.
Mr. De Rossa: Subsection (4) says that “Any person who obstructs or attempts to obstruct any member of the Garda Síochána or any other person acting under the powers conferred by subsection (1)”. Would the Minister clarify who “any other person” might be? As I read it, this power is only conferred on the Garda Síochána themselves.
Mr. Noonan: (Limerick East): For example under subsection (5) there is (b) “search him or cause him to be searched; (c) photograph him or cause him to be photographed”. In the case of a search it should be done by a doctor. It is not the practice at present to bring in outside photographers but if we move towards the “civilianisation” of tasks in Garda stations, there are eventualities where photographers could be taken by a civilian employed by the Garda or brought in for that purpose.
Mr. De Rossa: I can see where civilian photographers could be employed or staff from the forensic department taking swabs. The Minister said the search could be carried out by a doctor but presumably it could be done by “any other person” as well. Does this not leave it open? In my view “any other person” in relation to searching, particularly if it involves strip searching, seems to be a very wide power to give to a Garda to designate.
Mr. Noonan: (Limerick East): Such a decision would have to be taken at a very high level in the Garda Síochána. No garda could arbitrarily divest himself of a power and invest it in somebody else. Where there is body searching as distinct from or subsequent to strip searching, the appropriate thing is to have a doctor do it.
Mr. Noonan: (Limerick East): I shall certainly include the requirement that people could be searched only by members of their own sex. I shall look now at the point raised by the Deputy. I think that the explanation which I have given is adequate. Does the Deputy want it written into the regulations that the search will be only by a member of the medical profession?
Mr. De Rossa: Yes. The section mentions any member of the Garda or any other person and under section 1 (b) that the Garda may search or cause him to be searched. In theory that phrase “any other person” could mean literally any other person. The Minister has expressed the opinion that only a medical person should be involved in body searches or strip searches. That type of search should be confined and perhaps the best way of doing so would be in the regulations proposed to be introduced.
Mr. Noonan: (Limerick East): The whole section as outlined is taken from the 1976 Act. The Deputy knows the phrase “search him or cause him to be searched” which is in that Act. That has not resulted in the Garda designating a third party. The intention as I understand it was to allow for doctor to carry out a body search. That is the way it has operated since then. I do not envisage any difficulty arising from the phrase, but shall examine what the Deputy has said.
Dr. Woods: Where will those photographs be kept? I take it from what the Minister has said that the forensic material will go to the Central Forensic Laboratory and there will be need for staff to deal with it there. May I take it also that the photographs if being kept for the period of three or six months will be kept in Garda headquarters, where the photographs are at present? If that is the case, will there be a separate system, or will they be included with photographs of those who are convicted? The whole system  is based on people who have been convicted.
Mr. Noonan: (Limerick East): That kind of administrative detail can be worked out. I do not think the major concern is about where the photographs are to be retained, but as to the circulation of copies of photographs and access to the information. That would be important.
Dr. Woods: I would be concerned about photographs involving innocent persons against whom no charges are being brought being included in the overall system with those who have been proved guilty. This is information which would be used on a daily basis. The former should be in some very separate category and perhaps be kept and handled separately.
Mr. Noonan: (Limerick East): They would have to be filed and categorised separately because under section 6 to which we are coming there is an obligation to destroy them after six months in certain circumstances. For that reason alone, for administrative ease, they would have to be filed and categorised separately.
 (2) The regulations shall include provision for the assignment to the member of the Garda Síochána in charge of a Garda Síochána station, or to some other member, of responsibility for overseeing the application of the regulations at that station, without prejudice to the responsibilities and duties of any other member of the Garda Síochána.
(3) A failure on the part of any member of the Garda Síochána to observe any provision of the regulations shall not of itself render that person liable to any criminal or civil proceedings or of itself affect the lawfulness of the custody of the detained person or the admissibility in evidence of any statement made by him.
Subsection (1) says that every photograph (including a negative), fingerprint and palm print of a person taken in pursuance of the powers conferred by section 5 and every copy and record thereof shall, if not previously destroyed, be destroyed as this section directs.
The intention in this amendment is to ensure that if these are needed by the  Garda Síochána Complaints Commission they will be available to them. The Complaints Commission, through their procedures, may take a longer time to deal with a problem than the time limit mentioned for destruction of these records.
Where proceedings for an offence to which section 3 applies are not instituted against the person within the period of six months from the date of the taking of the photograph or print and the failure to institute such proceedings within that period is not due to the fact that he has absconded or cannot be found, the destruction shall be carried out on the expiration of that period.
If a complaint has been lodged with the Garda Complaints Commission, these may be necessary or useful to them, and also in the case of a civil action being taken. If the fingerprints on the objects were found to be obviously not similar to those of the accused, it might be necessary to show this in a civil case. Photographs showing bruises or other characteristics could be useful either in civil proceedings or where a complaint had been lodged.
If the Minister accepts the intention and the spirit of this amendment, it will be necessary to have a provision that these be destroyed after such proceedings, or after the Complaints Commission had dealt with the complaint.
Mr. Noonan: (Limerick East): The object of the amendment is to prevent fingerprints of a detained person being destroyed where notice has been received that civil proceedings may issue, or a complaint has been lodged with the Complaints Commission, as Deputy Woods calls it — the new complaints body which will deal with complaints against the Garda Síochána.
As the section stands, the prints must be destroyed six months after they have been taken, unless prosecution for a section 3 offence has been taken out in the meantime. Where such proceedings have been instituted, they must be  destroyed, broadly speaking, when a person has been aquitted.
Deputy Woods has given a number of examples about bruises, fingerprints and so on. I find it difficult to visualise in what circumstances records of fingerprints could be material evidence, either at the hearing of a complaint or at civil proceedings — the point about the bruises, perhaps, in civil proceedings. I have no objection to this amendment. However, it would need to be redrafted, because, as the Deputy has now pointed out, there is no provision for the eventual destruction of the prints. It would permit the prints and photographs to be held indefinitely if a complaint were taken through the complaints procedure, or if a civil action were taken. The notice could obviously operate only if it was received before the prints were destroyed. There could not be an obligation which could arise after the prints were destroyed. If the Deputy presses the amendment I will accept it on the basis that it needs to be redrafted and I will come back with it on Report Stage.
Mr. Skelly: My only concern is that it could give rise to a situation where you would have records indefinitely on the spurious basis that there might be civil proceedings. There may need to be a time limit laid down on that. I am worried that it could be indefinitely on the record and that it could cause total confusion in relation to what we have in mind on the destruction of records.
Mr. Noonan: (Limerick East): If notice of civil proceedings was given within the six months period after which prints should be destroyed or a notice that a complaint has been lodged then there would have to be a further provision that once that particular civil matter or complaint had been dealt with they would be destroyed immediately.
Mr. Noonan: (Limerick East): I see the  intention and will have an attempt made at redrafting it and come back with it on Report Stage. I also see the point Deputy Skelly is making. I do not want to give a loophole through which these things take on an indefinite life.
in a case in which there has been a hearing in the District Court, on the conclusion of the proceedings, except where the person has been dealt with under the Probation of Offenders Act, 1977, convicted or sent forward for trial or sentence, and
The amendment proposes to delete the words “dealt with under the Probation of” and also to delete “Offenders Act, 1907”. This amendment would ensure that where a person has been in court and  the judge has decided that the Probation Act shall apply the fingerprints and photographs should be destroyed. My understanding of the Probation of Offenders Act is that when a person is before the court for the first occasion and the judge considers he warrants the application of the Probation Act there should not be a file on that person in Garda control because the intention of the Probation Act is to ensure that a first offender does not have a record which can be held against him in the future. I ask the Minister to accept the amendment.
Mr. Noonan: (Limerick East): This amendment would mean that if a person was dealt with under the Probation Act his fingerprints would have to be destroyed as if he were acquitted. I am not accepting this amendment. I said on Second Stage that the Probation Act is widely used in our courts and even people with several previous convictions have been dealt with under it. A person can also be dealt with four, five and six times under the Probation Act. In order for the Act to be applied at all in the courts, facts must be proved. While, technically, this may not be termed a conviction it is far from an acquittal. Many people under the Probation of Offenders Act come up time and again in the courts. It is important to have those people's fingerprints because it will assist in detection of crime in a major way. Up to 30 per cent of all crime is committed by people under 17 years of age. There are young people who are habitual offenders, who are getting into trouble time and time again. It would be of major assistance to the Garda also if records of people who are dealt with under the Probation of Offenders Act are kept.
Mr. De Rossa: The young person who appears before the court and has the Probation Act applied to him has, presumably, been found guilty of the offence or has pleaded guilty to the offence with which he is charged and the judge, having considered the matter, decides that the Probation Act should be applied because the offence was not a serious one or  because he feels that the imposition of a fine or a prison term would have a bad effect on the person concerned far and above the offence with which he was charged and found guilty. For that reason the keeping of records on such a person is unwarranted in the circumstances. I ask the Minister to look at it again and to consider that the Probation Act is applied only in circumstances where there is not a serious offence involved. I appeal to the Minister to reconsider his position on it.
Dr. Woods: I certainly support Deputy De Rossa on this amendment. We have always regarded the application of the Probation Act as implying that there would be no record and that the person's record subsequently would be clean. It is normally applied by the courts for offences of a minor nature and where the individual can show that his character and behaviour have been reasonably good. The Probation of Offenders Act spells out the cases in which it is actually to be applied. In view of that it is reasonable to say that there should not be a record in that case. I appreciate the Minister's position and I appreciate that the Minister is being persuaded that some of these people will come back again with other crimes and that consequently it would be of great advantage to have the record there and to have it maintained. In the first instance, the records will not be destroyed for six months afterwards. Even at that it depends when the charge comes up. How long after that will it be before these ones are destroyed? Subsection (3) states that the destruction shall be carried out on the conclusion of the proceedings.
It would be a very unhappy development in relation to the Probation Act if records were maintained. It is reasonable that in the case of probation there should be no record, even though some of the people given the benefit of probation will come back again. The whole spirit of the Act relates to people who would not be coming back again. It might be better to put the juvenile liaison officers in close contact with people who are given the benefit of the Probation Act rather than  maintaining a criminal record for such people.
Mr. Noonan: (Limerick East): We are proposing in section 27 (1) to have fingerprints taken of persons convicted of any indictable offence, even those dealt with under the Probation Act. From the point of view of crime investigation, it is very important that a proper fingerprint record be built up. There are practical difficulties. I can see the concern of Deputies. For the Probation of Offenders Act to apply the facts must be proven in court. Technically one could argue that it is not a conviction but it is not an acquittal either. Say in the case of car stealing or the run of breaking and entering in the city centre, the Garda information is that quite small numbers of young people are involved. They come to notice again and again. While there is a very strong suspicion it is difficult to get them into court. I share the concern of both the Deputies who have spoken on this matter about people going through life with a police file because they had done something when they were young. I would put forward this suggestion which might be helpful. While it is necessary for the Garda to have records of people who are convicted because there is a tendency for them to repeat their crimes, but I could examine the possibility of introducing an amendment on Report Stage which would involve the destruction of the fingerprints of people dealt with under the Probation Act if they had stayed out of trouble for a particular period.
Mr. Noonan: (Limerick East): The Garda interest would be that they would have a record of fingerprints so that they could match up in cases of larceny, burglary or car theft, but if a young person stays out of trouble for a period I do not see why there should be a Garda file on him. I will come back with an amendment along those lines on Report Stage. I want  to maintain the power within the Bill as it stands.
Dr. Woods: It is a reasonable compromise if a period of six or 12 months is stipulated. The Garda would probably like to have the record there for some years but we must find a balance between that requirement and the standards which apply to the vast majority of people who come up under the Probation of Offenders Act.
Dr. Woods: Perhaps there could be a period of 12 months or two years. It should be a relatively short period during which a person would have an opportunity of adjusting under the terms of the Probation Act. The juvenile liaison officers should try to help those people to stay out of trouble. The Minister's suggestion is reasonable and I hope Deputy De Rossa will recognise that.
Mr. De Rossa: I am as capable of recognising a good deal as the next man. The suggestion of the Minister that he will come back with an amendment on Report Stage is worth taking on board. For that reason I do not intend to press my amendment. Can I re-enter on Report Stage an amendment which has been withdrawn?
Mr. Taylor: What would be the position if fingerprints and photographs were taken and a person was charged in the District Court and convicted? As it stands under section 6, he would have been convicted in the District Court and consequently the records would be preserved.  Say that person appealed to the Circuit Court and the conviction was overturned and he was acquitted. As the section stands the records would nonetheless be preserved because there had been a conviction in the District Court.
Dr. Woods: This section deals with the destruction of records and it is one about which we would have considerable concern. There should be a process by which records are destroyed after a period. This section makes such provision and is a safeguard. It is to be welcomed as such, since the Minister has given an undertaking to examine and come back to us on Report Stage. The proposal that there be a limited period for those dealt with under the Probation of Offenders Act seems to be a reasonable compromise.
In regard to the section generally, of course we would be concerned that the destruction would actually take place, that there would not be any sort of secret retention of particular files or photographs. I presume that in subsection (1) where there is reference to “Every photograph (including a negative)” means also diapositives and that anything else taken will be destroyed after the given period. Subsection (3) (a) is the one we have just been discussing concerning the Probation of Offenders Act, 1907. Subsection (3) (b) is where the person, having been tried on indictment, is acquitted, on the acquittal. There may be a need for a subsection (3) (c) which would read something like the following: that the destruction shall be carried out—
In other words, where there has been a hearing in the District Court, on the conclusion of proceedings it may be necessary to include — and I would ask the Minister to examine this — a situation in which a nolle prosequi is entered in the course of the proceedings. It may or may not be covered, but if it is not it could be done by the tabling of a suitable amendment on Report Stage. It could happen that after a person had been returned for trial the Director of Public Prosecutions might enter a nolle prosequi, thereby dropping the charges at that point. Because that did not come up for determination in court the relevant records could remain floating. This is something the Minister might examine. One does not like to see the extension of these records over such a wide area. Nevertheless it is necessary in practical terms and we are prepared to support the section bearing in mind the undertakings the Minister has given us.
On the question of there being no guarantee that the Garda would not secretly retain records after the prescribed time had expired, no one can give that kind of guarantee. All I would say in a general way is that there is a statutory obligation to destroy the records and copies thereof once we make this the law. Any breach of such an explicit direction would leave those members of the Garda Síochána responsible open to serious disciplinary action, including the possibility of dismissal from the force. To become involved in the kind of situation about which Deputies have expressed concern would require quite a number of gardaí. To be quite frank about it, there is one thing happening at present, as a result of our deliberations here and public criticism of individual members of the Garda Síochána, and it is this: any member of the Garda Síochána is not now going to put one foot past the other, getting himself  into any kind of situation in which he could involve himself in disciplinary charges. That is a very good thing for the behaviour of the Garda Síochána and they are now very concerned with it. It is public knowledge that a number of gardaí have been dismissed in recent times for breaches of one sort or another or for acting in a manner which was not befitting the Garda Síochána.
There is another matter of which we should be aware as well, that is, that the Garda have to operate and that they are the only Garda force we have. If the Garda feel that they are constantly at risk in the carrying out of their legitimate duties then we will not have a very effective Garda force.
Dr. Woods: We must make it quite clear that we are talking about giving the Garda extra powers — we are not talking about anything else — and we are talking about maintaining a reasonable balance in giving such powers and having reasonable safeguards. As far as the Garda are concerned, the House is going a long way in relation to their requests. There is no question about that. The Minister is going a long way in the same direction, inserting provisos that the powers be reassessed after four or five years, whatever the prescribed period turns out to be. I want to keep our discussion in that context: that we are talking about the additional powers being given and perhaps their accompanying safeguards. But I accept what the Minister says.
Mr. Skelly: Did the Minister mean that the non-destruction of records within the statutory period would form the subject of disciplinary procedures within the Garda Síochána? Would that be incorporated in the regulations the Minister envisages introducing? Perhaps the Minister might comment on what Deputy Kelly mentioned earlier, that copy photographs, including negatives — I think the wording is “Every photograph (including a negative)”— would be destroyed also.
Mr. Noonan: (Limerick East): A photograph is a photograph, a copy of a photograph  is still a photograph, and a negative is a negative. It involves all positives and all negatives being destroyed.
On the question of whether a breach of this law would constitute a serious disciplinary offence, of course it would. Any garda who breaks the law places himself in a very difficult situation. We are talking about inserting a statutory provision in this Bill that the records be destroyed after a certain period. If a garda or gardaí did not comply with that requirement he or they would be placing themselves in a frightfully serious situation. That has been the situation for many years under various Garda Commissioners. No Commissioner has ever stood over gardaí breaking the law. That is what would be involved here if they kept copies of photographs or anything like that. However, I do not think it would arise. I might repeat what I have said. We can overstress it to an extent that the normal reaction of the ordinary garda would be to remain so far on the right side of the line that we could end up with a Garda force which would not be very effective in the fight against crime.
I take Deputy Woods' point that we are here talking about extra powers and, in so far as they are concerned, we need to be satisfied that they will be applied properly and will carry proper safeguards. So far, the people who have contributed most to this debate are doing a reasonably good job in that respect. What I am endeavouring to get across is that there is another difficulty. If we keep hitting that note all the time, keep hitting it too hard, we could end up in a situation in which certain members of the Garda Síochána would say to themselves: “Play it safe all the time. If one does anything at all one is putting oneself at risk. There are those fellows up there in Leinster House who are ready to come after one.” That is a real risk. I have no intention of advising any members of the Garda Síochána to play it up to the margins of the regulations or of the law. The Garda know quite well that any breach of the law — for example, a breach of this law — would be a very serious matter indeed  for them and I do not think I need to stress it further.
Mr. Taylor: In regard to subsection (5) which has to do with the authority given to the District Court to extend for a period not exceeding six months the preservation of a photograph or print, I might ask: six months from when? Does that mean from the time they were taken or from the time of the court decision? There is some ambiguity there. My first reading of it is that it means six months from the conclusion of previous proceedings but I am not sure if that is what it means. In the interest of clarity, and for the benefit of prosecution and defence, the Minister should clarify “not exceeding six months” and from when.
That implies that there was already a set  of proceedings in respect of the offence. My reading of the draftsman's intention there would be that if the prosecution was brought, let us say in the District Court, and the prosecution concluded perhaps by an acquittal or a nolle prosequi five months after the prints were taken and the Garda decide at that point — it could be one year later because the proceedings could be pending still — that the material may be required, as the section states, for the purpose of further proceedings, they could then make the application. Is it the intent of the subsection that it would be on the conclusion of the first set of proceedings? Otherwise, the expression “further proceedings” would be meaningless.
Mr. Noonan: (Limerick East): Yes, it would be after the first set of proceedings and prior to the requirement to destroy the copies of the prints. The six months would run from the date of the District Court order and the obligation would arise again six months after that date.
Mr. Taylor: Would it not be prudent to specify the time limit within which material must be destroyed after the conclusion of the proceedings under subsection 3? It does not state that the material has to be destroyed within 24 hours, seven days or 14 days. It could be said that the material will have to be preserved because there may be an application under subsection (5) or because a person would complain that an application under subsection (5) was no longer warranted and that material could not be used because it had not been destroyed, technically speaking. Under subsection (3) as it stands the very instant the proceedings are concluded there would surely be an obligation to destroy the material in which case an application under subsection (5) would not be possible. Will the Minister look at that to see if a period of time is necessary?
Mr. De Rossa: The question that arises  also out of that section is that the Director of Public Prosecutions may apply to the District Court and that court may make a decision, but is there a provision whereby a person whose photographs or prints are to be preserved by the District Court, if that is the position, will have an opportunity to appear in court to argue against the request? Will the person be notified that the DPP is applying for an extension?
Dr. Woods: This section relates to applications to persons in custody under section 30 of the Offences Against the State Act, 1939. The section ensures that sections 3 (7), 4, 5 (2) and 5 (3) shall apply with the necessary modifications in relation to persons in custody under section 30 of the Act of 1939 and to the powers conferred by section 7 of the Criminal Law Act, 1976, as they apply to persons detained pursuant to section 3. Section 3 (7) states:
Where it appears to a member of the Garda Síochána that a person arrested  in the circumstances mentioned in subsection (2) is in need of medical attention, or where during his detention it comes to notice that he is in need of such attention, and he is taken for that purpose to a hospital or other suitable place, the time before his arrival at the station or the time during which he is absent from the station, as the case may be, shall be excluded in reckoning a period of detention permitted by this section.
Under this section we are applying the provision I have quoted to the Offences Against the State Act. In effect it ensures that the period at a hospital, or other suitable place, will not be included in the reckoning of the time. Therefore, it means that the 24 hours, or the 48 hours, will not include that time. That explains what the Association of Criminal Law-years had to say about the section. It was their view that the section applies the extra powers under the Bill to persons in custody under the Offences Against the State Act but the association, although they did not wish to make any submission regarding the section, noted that the section was an explicit admission that the Bill contained wider powers than those contained in the emergency legislation.
Section 3(7) in effect is an increase in the time under the Offences Against the State Act because it excludes the time which is taken for attendance at a hospital. When dealing with section 3 we proposed an amendment which related to section 7. We proposed:
We found that that would need some modification to ensure that it did not exclude all the time. I withdrew that amendment and said I would deal with it on Report Stage because the Minister agreed to have a look at the matter to see if our intention would be carried through in an amendment which did not leave the matter open-ended but specified the time when the questioning took place, if it had to take place in a hospital. The Minister did not visualise that taking place very  frequently, if at all, in a hospital, but I understand that it can of necessity take place and can be there for some time. Section 7 then is related to section 3 (7) on which we have had those suggestions. A suitable amendment to that on Report Stage from the Minister, ourselves or somebody else in the House would improve the position. As the section stands it just extends the time; it would seem to extend the 48 hours or 24 hours, whichever was in question.
Section 4 is also being applied to the Offences Against the State Act. Section 4 provides for access to a solicitor and notification of detention. The notification of detention and information of the right of access to a solicitor would then be carried into the Offences Against the State Act, and that is wholly desirable. We proposed an amendment to section 4 to the effect that where the member in charge of a Garda station has been given the name of a solicitor and fails after reasonable efforts to contact the named solicitor he should give the person detained the opportunity of naming another solicitor and should cause any solicitor so named to be notified accordingly as soon as practicable. If I remember rightly, the Minister accepted the spirit of that amendment and he is examining that for Report Stage. That again is a desirable development.
Subsection (1) (b) does not empower a member of the Garda Síochána to require a person to remove his underclothing, except where such member, with reasonable cause, suspects that he has concealed on his person a controlled drug (within the meaning of  section 2 of the Misuse of Drugs Act, 1977) or an explosive substance and a member of the Garda Síochána not below the rank of superintendent so authorises.
This again would appear to be a very desirable inclusion within the Offences Against the State Act in relation to persons in custody under section 30 of that Act. Regarding section 5 (2) and 5 (3) we proposed amendments in relation to the removal of personal belongings, to the effect that where anything is removed from the person or possession of a detained person details of anything so removed should be entered in the records in the Garda station by the member in charge. The Minister said that, generally speaking, he would agree with the inclusion of that in his regulations, therefore that provision would apply to the regulations and the regulations would also apply to the Offences Against the State Act.
Mr. Noonan: (Limerick East): Deputy Woods has pointed out in detail what is contained in section 7. Section 4, section 5 (2) and section 5 (3) are, in effect, extending safeguards provided to detainees under section 3 of this Bill to people detained under the Offences Against the State Act, so I think they will be generally accepted. Naturally, when we are talking about section 4, section 5 (2) and section 5 (3), we are talking about those sections as they will be if amended on Report Stage and subsequently enacted.
Section 3 (7) deals with the nonreckoning of any period of part of the permitted period of detention during which the detained person is absent from the Garda station while receiving medical attention. This is a cause for concern and has been debated already when we were debating section 3 (7). It is in the Bill as a result of the experiences under the Offences Against the State Act. There is a real problem especially related to crime perpetrated by members of subversive  organisations. If people are shot and wounded and taken to hospital it is very difficult to know the exact position at the moment. It is very difficult to know when the clock begins to run for the detention period. If somebody is taken to the Mater Hospital, for example, suffering from gunshot wounds and is arrested by the Garda Síochána before being taken to hospital and is under arrest, does the 24-hour period begin to run as soon as that person arrives at the hospital or while he is being conveyed to the hospital? Then does the whole period expire while he is in hospital and will it not be possible for the Garda Síochána to question somebody suffering, for example, from gunshot wounds? It is the same problem that we have dealt with in detail and I am proposing that we extend section 3 (7) to the Offences Against the State Act also. Section 4, section 5 (2) and 5 (3) are in effect an extension of the safeguards being provided to detainees under section 3 here to the Offences Against the State Act.
Mr. De Rossa: The extension of the safeguards is welcome so far as they go. However, on section 3 (7) I have doubts about the idea that a person should be detained while in reality not being detained if that person has to be brought to a hospital. The Minister gave an example of a person who would have been shot in the course, presumably, of some subversive activity and that would seem to be a reasonable point. However, it appears that the numbers of people detained under section 30 of the Offences Against the State Act, the vast majority, 90 per cent or more, are released without charges being preferred. Very few statistics are available to indicate if any of them have been hospitalised during their period of detention, but it must be assumed that in the vast majority of cases the people detained under section 30 at present are being held for interrogation of some kind or, as appeared to happen at the weekend, a woman in Phoenix Park was detained under section 30 simply to keep her out of circulation. I am not aware that any charges arose out of  that detention. Therefore, to extend the provisions of section 3 (7) to the Offences Against the State Act is not necessarily a good idea.
We have the power under section 30 to detain for 48 hours. On section 3 the Minister argued that the period was six hours plus six hours, that the person would have to be brought to hospital for bandaging or something, and that that could take hours, cutting unnecessarily into the period available for questioning. In section 30 the power is for 24 hours plus a further 24 hours. The same case does not stand, therefore. I argued against the case made for section 3 (7) but the case against the Offences Against the State Act is much stronger because of the period of detention permitted in that Act.
Dr. Woods: The Association of Garda Sergeants and Inspectors have said that if the effect of the provisions of section 7 is to limit the operation of the Offences Against the State Act, the provisions should be deleted. We covered the point that some of the safeguards here are being brought into the Offences Against the State Act. There was a particular query about the possibility of excluding the hospital period, but we can deal with it on Report Stage, as the Minister has suggested. With the assurance the Minister has given I support this section.
Mr. Noonan: (Limerick East): I move amendment No. 27:
In page 7, before section 8, to insert the following new section:
“8.—(1) Where a person arrested on suspicion of having committed an offence is detained pursuant to section 3  and is released without any charge having been made against him, he shall not—
(a) be arrested again for the same offence, or
(b) be arrested for any other offence of which, at the time of the first arrest, the member of the Garda Síochána by whom he was arrested suspected him or ought reasonably to have suspected him,
except on the authority of a justice of the District Court who is satisfied on information supplied on oath by a member of the Garda Síochána not below the rank of superintendent that further information has come to the knowledge of the Garda Síochána since the person's release as to his suspected participation in the offence. A person arrested under that authority may be detained pursuant to section 3.
(2) Notwithstanding anything in subsection (1), a person to whom that subsection relates may be arrested for any offence for the purpose of charging him with that offence forthwith.
(3) Where a person who has been arrested under section 30 of the Act of 1939 in connection with an offence is released without any charge having been made against him, he shall not be detained pursuant to section 3—
(a) in connection with the first-mentioned offence, or
(b) in connection with any other offence of which, at the time of his arrest for the first-mentioned offence, the member of the Garda Síochána by whom he was arrested suspected him or ought reasonably to have suspected him.”.
An Leas-Cheann Comhairle: This amendment has been fully debated with amendments Nos. 13 and 14. Acceptance of this amendment involves the deletion of section 8.
Amendment agreed to.
 Section 8 deleted.
Dr. Woods: We have spent a fair period discussing this. The main query in regard to this is the extension of the period. The new section will enable the period to be extended beyond 48 hours. I was anxious to get the Minister to introduce a proviso that a person should not at any time be detained without being charged for consecutive periods exceeding 48 hours. The new section goes part of the way only. Subsection (3) (b) states:
in connection with any other offence of which, at the time of his arrest for the first-mentioned offence, the member of the Garda Síochána by whom he was arrested suspected him or ought reasonably to have suspected him.
Subsection (3) of the new section provides:
(3) Where a person who has been arrested under section 30 of the Act of 1939 in connection with an offence is released without any charge having been made against him, he shall not be detained pursuant to section 3—
The Minister is trying to avoid multiple arrests. Therefore, the new section is welcome. Earlier, the new section states that a person may not be arrested for any offence of which, at the time of the first arrest, the member of the Garda Síochána by whom he was arrested suspected him or ought reasonably to have suspected him, and subsection (1) (b) goes on:
except on the authority of a justice of the District Court who is satisfied on information supplied on oath by a member of the Garda Síochána not below the rank of superintendent that further information has come to the knowledge of the Garda Síochána since the person's release as to his suspected participation in the offence. A person arrested under that authority may be detained pursuant to section 3.
This is quite clear-cut. Having done the 48 hours, the person shall not be detained for another 20 hours. However, if a further  offence arises in the course of questioning, it will be possible to continue the detention by applying section 3, making it possible to have detention of 48 hours plus 12 hours. There can be 48 hours detention following by 12 hours, or vice versa. I suggested to the Minister earlier that he might introduce an amendment on the lines of amendment No. 14 in my name, whereby no detention would exceed the present upper limit of 48 hours. In that amendment I attempted to ensure that there would not be a combination exceeding the present maximum. Although I appreciate that the Minister has covered a number of loopholes, we still can have detention of 12 hours, followed by 48 hours, or 20 hours if the detention is during the night, giving a maximum of 68 hours.
That aspect remains. The Minister was not anxious to interfere with the separate operation of the Offences Against the State Act. Consequently that would mean that the overall period could be extended to 68 hours. I am asking him to consider that position again for the Report Stage because I am confident it was never the intention to extend the 48 hours to 60 hours. One of the problems that arose was that the first part of the Offences Against the State Act — that relating the 24 hours or the 48 hours as the case might be — was being used for trivial offences. That was useful to the Garda in relation to the investigation of such offences but it is an abuse of the Act in the first instance. Therefore by providing for the six-hours detention followed by another six but with a maximum of 20 hours, we would be providing for that situation. It seems then that it should not be necessary to extend the overall period to 60 or to 68 hours. I welcome the new section. It represents an honest attempt to meet the questions raised earlier about re-arrest but there is a point of difference between us in relation to that aspect of it.
Mr. Noonan: (Limerick East): The purpose of the amendment is to deal with problems raised on Second Stage. These problems were in two areas: first, the  possibility that the powers of section 3 could be rolled over so that subsequent periods of detention of 12 hours could be used to detain persons for long periods. The second problem was that the combination of the Offences Against the State Act and section 3 of this Bill could be used also to detain persons for extended periods. The new section 8 rules out the possibility of the roll-over effect of section 3 and, except where new offences come to light it rules out a combination of section 30 and section 3.
Section 8 (1) (a) provides that a person cannot be arrested again for the same offence. Therefore, if a person is arrested under section 3 and held for 12 hours or any part thereof he cannot be arrested again for the same offence under the Offences Against the State Act. That rules out the possibility of 12 hours plus 48 hours being used for detention purposes. Subsection (3) provides that:
Where a person who has been arrested under section 30 of the Act of 1939 in connection with an offence is released without any charge having been made against him, he shall not be detained pursuant to section 3—
(a) in connection with the first-mentioned offence, or
(b) in connection with any other offence of which, at the time of his arrest for the first-mentioned offence, the member of the Garda Síochána by whom he was arrested suspected him or ought reasonably to have suspected him.
Therefore, a combination of 12 plus 48 is ruled out in subsection (3) (a) while the combination of 48 plus 12 is ruled out in both (a) and (b) except in the very limited area which Deputy Woods has pointed out. We discussed this previously and I have said I will look at it again between now and Report Stage. I am not sure if it is possible to overcome the difficulty because there is public interest involved. If something of a serious nature occurs, for example a murder, there is an onus on the Garda to investigate it. I accept the way Deputy Woods has put the case. We are now at a very confined area of  disagreement. The work we have done in this new section deals with almost all the points raised on Second Stage. However, I have not yet come up with anything that is near a complete solution to the problem.
Mr. Taylor: The section is intended to be in ease of a person who has been detained. In so far as there is the intent at least of doing that, it is to be welcomed but I wonder to what extent it goes towards meeting that purpose. It seems to me that as an example of draftsmanship the section leaves a lot to be desired.
What puzzles me in respect of subsection (1) is that when a person is detained under section 3 there is no procedure whereby he may know the offence of which he is suspected and consequently detained. That is something that is in the mind of the arresting garda. We are not talking of a case where a person is arrested and charged with a specific offence. That would be clear but we are dealing with a situation in which a garda is supposed to have a suspicion that an individual committed a certain offence and consequently detains that person. The detainee is not told what he is suspected of. Consequently, how is he to know whether, in the event of rearrest, he is being rearrested for the same offence? Perhaps the situation could be dealt with by way of keeping a written record of the suspected offence, whether in the daybook or in the records of the Garda station concerned. In the event of some such procedure it would appear that the protection which is sought to be given by the section will be avoided.
When we examine the wording of paragraph (b) of subsection (1) we find that we are into airy-fairy land because the wording is that a person may not be arrested for any other offence of which at the time of the first arrest the member of the Garda by whom he was arrested suspected him or ought reasonably to have suspected him. Here we are in the realm of trying to determine what was in the mind of the garda at the time, whether he suspected the person of having committed a certain offence. The imagination baulks at the idea of a court  trying to determine whether a garda suspected that a person had committed a certain offence. The words “ought reasonably to have suspected him” are even more in the air. Are we now to call on the courts to determine what a garda ought reasonably to have suspected someone of? What is a reasonable suspicion? Some people are very suspicious while others are very credulous. Gardaí, like everyone else have different standards. One disagrees with the likelihood of courts being asked to determine whether on a given set of facts and depending on what a garda saw, he ought reasonably to have suspected a person of having committed a certain offence. I realise the difficulty in framing the section well and clearly but this wording is marginally better. Clearly the opinion was that the original section did not quite get it. I do not think this substitute section quite gets it either. I suppose the point the section is trying to make is that where the offence is of a particular type within a comparable category and if a person is detained on suspicion of having committed an offence in that category he should not be rearrested for one that is cognate to it. Perhaps I am wrong but if that is the intention it does not quite come across. The existing wording of the section will give rise to great difficulty. If at all possible it should be simplified.
Mr. Kelly: The difficulty with the form which the Minister has chosen and proposes in amendment No. 27 relates also to the practical aspect of the court proceedings in which this part of the subsection might fall to be considered. I ask the House to consider who would be interested in challenging the arrest envisaged under subsection (1)? Obviously the person who was arrested. The person arrested under the subsection for some other offence and anxious to rely on the conditions envisaged in paragraph (b) would be in the absurd position of having to say to the court: “The garda suspected me or ought to have because there was item X and Y against me and these items put together made a reasonable case against me”. Unless I have misunderstood the wording of the section this is a  fairyland position. The fact that the Minister brought in an amended section 8 shows that he is striving with might and mane to satisfy all sides. I pay tribute again to the extraordinary openmindedness, not by any means common in a Minister for Justice, which he is bringing to bear on this. I invite him and his advisers to put themselves in the position of the person who is arrested and in prison or who is in the course of his trial. Perhaps at this stage he wants to challenge what has happened to him, and his evidential position is that he must build up a case against himself. Perhaps the Minister might look at it in the light of that rather unreal hypothesis.
Mr. Noonan: (Limerick East): We dealt with this in its previous existence as amendment No. 27. Deputy Taylor is incorrect when he says that a detained person does not know why he is detained. The Garda are obliged under existing law to inform a person of the offence for which he has been arrested and give the reason why he has been arrested. A detainee will know why he has been arrested. When debating the amendment I said it was a matter for consideration in the context of the regulations whether this would be recorded in the daybook or records in the Garda station. If there is a need to do that in the statutory regulations, I will do so.
As regards the Deputy's point about “is arrested for any other offence the member of the Garda Síochána by whom he was arrested suspected him”, “suspected him” refers back to what he told him he was suspected of. That would be a matter of record. So the Deputy's second objection to the section does not stand. The more difficult situation is where he ought reasonably to have suspected him. “Reasonably suspected” goes back to a concept which has been in the law for a long time — the idea of arrest on reasonable suspicion. It is fundamental to the power of arrest which the Garda have. It is an objective test. It is not airy fairy. It is not something that exists in the minds of the garda. If a person is arrested it is a matter to be  determined objectively whether the garda suspected him or ought reasonably to have suspected him. The garda will have to say on oath what he suspected him of. If that was not enough he would have to discuss on oath what he ought reasonably to have suspected him of. The section is an improvement on the existing one. It tightens it up considerably. It is a difficult area but it is not drafted in a loose way. Every word is weighed.
As regards Deputy Kelly's point about someone being in a position where he would have to make a case against himself to show that he would have to have been reasonably suspected of an offence, I will look at that. Section 8 is a statutory instruction to the Garda on how they should exercise the power of arrest for detention and the power of rearrest. It is a clear instruction to them that they cannot arrest a person for a second period of 12 hours. If they attempt to arrest someone for the offence they arrested him for originally, they cannot arrest him for a second period. Neither can they arrest him again if one of the offences in the course of offences for which the facts would supply the basis of a reasonable objective suspicion.
The question of reasonable suspicion is something with which the courts are familiar. At an early stage in the debate I read into the record a case in England where a member of the police in London was sued for unlawful arrest. The plaintiff was awarded damages on the basis that the policeman could not objectively have had reasonable suspicion when he was arrested and detained. There is case law in the neighbouring jurisdiction where a similar power of arrest applies. The section is a good one and tightens up the powers. It removes possible anomalies. I will look again at the points raised by Deputies Woods and Kelly.
Mr. Kelly: I am not sure I have succeeded in making my point. I asked the Minister to consider a situation which I thought of off the top of my head. Perhaps it is not a very good example. I could think of better ones. Suppose somebody is detained pursuant to section 3 because he has been suspected of being in possession  of a firearm with intent to endanger life, and suppose he is let go without being charged, for whatever reason, if he is then rearrested for an offence connected with the same set of alleged facts, a person who wishes to challenge the right of the police to rearrest him under section 8 must look at every component of paragraph (b). In order to challenge his rearrest he will be looking at this concept of what a garda ought reasonably to have suspected him of. The only way he can challenge this objectively is by saying to a court that the garda ought reasonably to have suspected him of the offence for which he has been rearrested. He could say that the garda might have rearrested him when he was first held under section 3 because of factors X, Y and Z. By asserting those factors in that context, he is estopping himself from denying those factors at some future date and in a different context.
I am not trying to make difficulties for the Minister. I am trying to save this House the reproach of absurdity in passing at the instance of an obviously well intentioned and very anxious Minister something which will not work or which will produce an absurdity. I think the Minister was quite right in his rejoiner to what Deputy Taylor said. As Mr. Justice Gavan Duffy said nearly 40 years ago, no one is obliged to submit to an arrest unless he knows why he is being arrested. The mere fact that a man, even though he wears a blue uniform, comes up and makes arresting movements towards you, does not oblige you to submit to an arrest unless you know why it is being done.
My understanding of the way the law has gone — I hope my very poor memory has not let me down here — is that unlike many other dimensions of the law bearing on personal liberty, this particular aspect of the law of arrest has not become liberalised in recent years, but has become somewhat qualified. A recent Supreme Court decision said it is sufficient, if the circumstances are such that the Garda are entitled to assume that the arrested person knows why he is being arrested, and if they at least do not mislead him. I do not quarrel with what the Supreme Court said; I do not think it is unreasonable  but I think it is a retreat, perhaps not a very significant one, from what used to be the law, that somebody has to be told why he is being arrested. I put that in as a footnote to contribute my pennyworth of what I hope is the correct understanding of the law. Subject to that pennyworth of information the Minister is right in saying that a person has to be told why he is being arrested.
In the special context of the Offences Against the State Act, the courts have repeatedly held it is enough if the Garda tell a man they are arresting him under section 30 of the 1939 Act. As a general proposition, at the very least the arrested person must be given an indication — perferably a clear indication — why he is being arrested so that he can decide whether to resist or acquiesce to the arrest. The Minister is right to point that out because I do not think this section makes any inroads into that section.
Mr. Taylor: Notwithstanding the contributions of the Minister and Deputy Kelly, I cannot say I am 100 per cent satisfied on that point, it cannot be said that existing decisions and precedents dealing with arrest would apply in this new situation. The existing position on arrest is that a person is arrested to be charged with an offence, and under the existing law he is entitled to know why he is being arrested. This is an entirely new situation involving a detention on suspicion, not for the purpose of being charged. I do not think it necessarily follows that the precedents which applied in a completely different situation of arrest for charge purposes necessarily apply under section 3, which is an entirely new concept and it may be held that they do not. Just as the situation has evolved where persons are told they are being arrested under section 30, we may find ourselves in a situation where persons are told they are being arrested under section 3 of the Criminal Justice Bill. If that is all they are told, that will not meet the point I am making. They will not know that they are being detained on suspicion of having committed a particular offence.
The comment made by the Minister is helpful. He indicated that he would make  arrangements in the regulations — and that is to be welcomed — that it would be recorded in the station records when the person is brought in, for the commission of which offence or offences he is suspected, and for which he has been detained under section 3 of this legislation. If that is done that will meet my concern.
I found it hard to follow the Minister's reading of section 8 (1) and Deputy Kelly explained the point very well. One could visualise a situation developing in this way. If a person is detained on suspicion of larceny, inquiries are made and he is let go; if he is then rearrested on suspicion of receiving, possibly in respect of the same goods, he or his advisers could issue an application to the High Court for habeas corpus challenging the legality of his detention and making the point that when he was arrested on suspicion of larceny the Garda should have suspected him of receiving, for which he has now been arrested. There would be a High Court determination on the issue: did the garda suspect him at the time of the first arrest of receiving or should he reasonably have suspected him at that time of receiving?
I agree strongly with Deputy Kelly and I am concerned that potentially ridiculous situations could arise under which a person would be saying to the court that the garda ought to have suspected him of having committed a particular offence. That is a position which the courts would find untenable. This matter has to be re-examined because the courts could be inundated with habeas corpus proceedings if persons were rearrested. In my view this section, even in its new form, does not give the protection which is reasonably required.
Mr. Noonan: (Limerick East): I see the situation operating as follows.
Progress reported; Committee to sit again.
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