Extract from the Report of the Committee to Recommend Certain Safeguards for Persons in Custody and for Members of An Garda Siochana
46. The practice of taking people whom it is desired to question to a Garda Station “to help the police with their enquiries” should be discontinued. We so recommend.
47. Where a person is arrested and brought to a Garda Station he should have assigned to him, on arrival in the Station, a member of the force who is not connected with the investigation or other police action which led to the arrest. For convenience this Garda is herinafter referred to as the “Custodial Guardian”. It would be the duty of the Custodial Guardian to ensure that the person is treated humanely and in strict accordance with Garda Regulations while he is in custody. Assignment of the Custodial Guardian should be made by the Station Sergeant or senior Garda then present in the Station. Once appointed he should be responsible, until officially relieved, for the well-being of the person in custody and the safe-guarding of his rights. The Custodial Guardian should immediately hand him the official printed form notifying him of his rights (Garda Form C 72 (S), a copy of which is set forth at page of this Report. He should satisfy himself as to whether the person requires medical examination, and if of opinion that it is necessary or desirable, he should have authority to prevent any questioning until a medical examination has been completed. In the case of an uninformed or illiterate person he should particularly ensure that he fully understands his rights. We so recommend.
48. It should be the duty of the Custodial Guardian to ensure that reasonable requests made by the person in custody are met, so far as possible. He should keep him informed as to progress in efforts to contact his solicitor, his family or friend. He should ensure that the person is afforded reasonable facilities for rest and sleep, and that he is properly fed. In the event of any member of the force, whether senior in rank or not, attempting to treat the person inhumanely or contrary to Garda Regulations, the Custodial Guardian should forthwith intervene to prevent such abuse. If he considers that such abuse has occurred, he should at once record the relevant facts in the Log-book (referred to in paragraph 50 hereafter) and report the matter to his immediate superior. We so recommend.
49. In the case of a person detained or arrested under the Offences Against the State Act, 1939, or the Emergency Powers Act, 1976, the Custodial Guardian should be a member of the force of a rank not below that of Inspector, to be assigned by the Chief Superintendent of the Division in which the person is detained. We so recommend.
50. A new Station record, to be known as the Station Log-book, should be devised and supplied immediately to all Garda Stations. The Log-book should be used to record the history of each person arrested and detained from the time of arrest or detention to the time of release or transfer to Court, prison or other authority outside the Station. Every contact with the person in custody should be recorded and initialled by the Custodial Guardian. The ultimate responsibility for the proper maintenance of the Log-book should rest with him. The record should be kept in triplicate; one copy should be forwarded immediately to the Divisional Officer of the Division in which the person is detained; another copy should accompany the arrested party when he is brought in custody out of the Station and should be furnished, where appropriate, to the District Justice before whom the party is remanded; the third copy should be retained in the Station. We so recommend.
51. A “Central Agency” should be instituted in every Garda District for the recording of the whereabouts of every person taken into custody therein. Immediately upon the arrival of the person at the Garda Station the Central Agency at District Headquarters should be informed. The whereabouts of the person in custody should be made known, upon request and as of right, to any member of the legal profession or any member of the person’s family - the latter only with the permission of the person in custody. We so recommend.
52. A situation may arise where a person is arrested and detained in a District other than that in which he resides. We feel justified in suggesting that a special additional measure be taken to meet the eventuality. In such a case where the Custodial Guardian becomes, or is made aware of the fact, he should notify the whereabouts of the person in custody to both his own District Central Agency and that of the District in which the person resides. We so recommend.
53. If an arrested person indicates desire or willingness to make a voluntary statement, he should be afforded the opportunity of writing out same in his own hand. If he prefers to have the statement taken down by a Garda, a sentence to this effect should be included at the beginning of the written statement. We so recommend.
54. If a person in custody in a Garda Station agrees to answer questions about matters other than the crime for which he is in custody, the interrogation should take place in a room set aside for this purpose. The room should be sufficiently furnished for basic human comfort. Anything suggestive of intimidation, isolation or deprivation should be avoided. We so recommend.
55. If an arrested person has asked for a named solicitor, a reasonable time should elapse to allow for the attendance of the solicitor. The duration of a “reasonable time” must necessarily depend on circumstances, but we regard a period of not less than one hour and not more than two hours as reasonable in most cases. Questioning in the absence of the solicitor should not commence until the “reasonable time” has elapsed. The solicitor should be granted access to his client immediately on arrival at the Station, the consultation to be out of the hearing of the Gardai but subject to such requirements as to safe custody as may be necessary. The solicitor should be entitled, as of right, to attend any subsequent interrogation as an observer. We so recommend.
56. If a solicitor whose attendance has been requested by an arrested person fails to attend within the “reasonable time”, and the arrested person indicates a willingness to answer questions, questioning may take place. We so recommend.
57. The Custodial Guardian should be entitled to attend throughout questioning of an arrested person, but he should not be entitled to intervene. If he deems it advisable, he should be entitled to call for medical examination at any time. If the doctor is of opinion that questioning, or further questioning, is inadvisable, and so certifies, no questioning should take place. We so recommend.
58. 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 Gardai 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 Gardai should be entitled to question a prisoner at one time, and that not more than four Gardai 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 (or two hours, when the break includes time for eating a meal). Only in exceptional circumstances should questioning take place between the hours of midnight and 8 a.m. e.g. where there may be reason to believe that accomplices are escaping, or evidence is being destroyed. We so recommend.
59. The investigation of complaints by members of the public against the Garda Siochana should be brought into line with more enlightened practice in Western Europe. A Complaints Tribunal with a strong independent element should be set up. We do not feel called upon to spell out how its membership should be composed, although the desirability of having an expert penologist and an experienced criminal lawyer suggests itself. Whatever is composition, the membership should be clearly so impartial and above any suggestion of bias that it would earn the respect and co-operation of both Garda Siochana and public. We cannot emphasise too strongly our belief that any such Tribunal must have the wholehearted support of the Gardai if it is to function effectively, and no effort should be spared to secure the goodwill of the several Representative Bodies. Whatever procedure is adopted for dealing with complaints, no suggestion of double jeopardy should arise. We so recommend.
60. On the first occasion an accused appears in the District Court, the Prosecution should be required by the District Justice to say whether any statement or confession made by the accused will be relied upon. If the answer is in the affirmative the Justice should enquire of the accused whether or not such confession or statement was made freely. If the answer is that the confession or statement was not made freely, the accused should be permitted, but not compelled, to elaborate, particularly with regard to any alleged ill - treatment. The proceedings in the District Court should be duly recorded, and the record (including the original of any statement) should later be available to the trial Court. We so recommend.
61. A person who suffers injury while in Garda custody because of ill - treatment by a member or members of the force should be entitled to claim and to receive compensation out of State funds. This right should be maintained even in cases where the offending member or members cannot be identified. We so recommend.
62. The Law Society delegation which appeared before us regarded as feasible a scheme whereby a panel of “duty solicitors” could be maintained. Solicitors on the panel for any given day would be available to attend at a local Garda Station when a prisoner requests the advice of a solicitor but is unable to name a solicitor of his own. A feasibility study of the subject should be undertaken forthwith. We so recommend.
63. Many Garda Stations are unsuitable for the detention of persons in custody for prolonged periods. In the case of subversive crime a maximum period of 48 hours’ detention is possible under the Offences Against the State Act, 1939. Should the Emergency Powers Act, 1976, be reactiviated, a maximum period of seven days’ detention would become possible. In no case should a person be detained in Garda custody for more than 48 hours; if detention for a longer period is permitted by law, any period in excess of 48 hours should be spent in prison or other convenient place. We so recommend.
64. The forensic facilities to the Garda Siochana are, by all accounts, seriously inadequate and compare unfavourably with those available to police forces elsewhere. Immediate priority should be given to the development of adequate facilities in this field. Reliance on confessions and self - inculpatory statements should be lessened and the solution of crime by other methods of police - work made possible. We so recommend.
65. The training of Garda recruits and the in - service training of members of the Garda Siochana should lay stress on the proper treatment of persons in Garda custody, having regard to their legal rights as laid down in the United National Declaration on Human Rights and other international agreements and conventions. We so recommend.
66. In order to reduce the number of people held in Garda custody, an offender should not be arrested in any case in which he may be made amenable to the law by way of summons. In addition, bail should be granted by the Gardai under the powers conferred on them by section 31 of the Criminal Procedure Act, 1967, in every case where it is believed that an arrested person will attend Court to answer the charge laid against him, and that he will not interfere with witnesses. We so recommend.
67. Feasibility studies should be instituted at once to establish whether videotaping of interrogations in the investigation of serious crime is a viable proposition. In addition, tape-recording should be tried on as wide a basis as possible. It is fully appreciated that a variety of technical and legal difficulties will have to be surmounted, but we believe that a start should be made at once in trying out mechanical aids. Persons being questioned should be informed that the interrogation is being recorded. We so recommend.
68. Consideration should be given to embodying in a comprehensive statute the protection to be afforded to persons in custody, and the powers and duties of the Garda Siochana in dealing with them. We so recommend.
INFORMATION FOR PERSONS IN CUSTODY
The Sergeant or member in charge of a Garda Station may release on bail a person who is brought in custody to the Garda Station if that member considers it prudent to do so and no warrant directing the detention of that person is in force. If the person is not released on bail by the sergeant or member in charge, he or she may apply for bail on appearing at a court before a District Justice or a Peace Commissioner.
Provided it is reasonable and practicable, the following facilities will be afforded to a person in custody in a Garda Station:-
(1)A Solicitor, a member of the person’s family or a friend will, by arrangement with the sergeant or member in charge of the station, be contacted and informed that the person has been taken into custody.
(2)The person may receive a visit from and consult privately with a Solicitor.
(3)The person may receive a visit from a member of his or her family or a friend, provided that such visit is not considered prejudicial to the interests of justice and is supervised by a member of the Garda Siochana.
Refreshments are supplied free of charge to persons in custody. If, however, a person wishes to procure a meal of his or her choice, arrangements will be made to have a meal supplied at his or her own expense, if this is practicable.
This is dealt with on application to the court and may be granted in certain circumstances.
Under the Offences Against the State Act, 1939, a member of the Garda Siochana is authorised to take, or cause to be taken, the fingerprints of any person arrested under Section 30 of that Act. In any other case, a member of the Garda Siochana may take the fingerprints of a person in custody in a Garda Station, with his or her consent.
A person whom it is proposed to put on parade should be informed:
(1)that the person will be placed among a number of other persons who are, as far as possible, of similar height, age and general appearance as the person;
(2)that the person may have a Solicitor or a friend present at the parade;
(3)that the person may take up any position he or she may choose in the parade and that, after a witness has left, he or she may change his or her position in the parade if he or she so wishes before the next witness is called;
(4)that the person may object to any of the persons on the parade or the arrangements and that any such objection should be made to the member conducting the parade.