Eighth Report of the SELECT COMMITTEE ON CRIME, LAWLESSNESS AND VANDALISM
Safeguards for Persons being questioned in Garda Stations and for Members of the Garda Síochána
Membership of the Committee
Michael Woods - Chairman
Gay Mitchell - Vice Chairman
Clerk to the Committee: F.J. Brady.
1.1Arising from its consideration of the Report of the Tribunal of Inquiry into the “Kerry Babies Case”, the Committee discussed the need for safeguards for
(i)persons being questioned in Garda Stations, and
(ii)members of the Garda Siochana against allegations of ill-treatment made by any such persons.
1.2The Committee adopted a motion (30th October 1985) calling on the Minister for Justice to implement the Custodial Guardian recommendations, which were contained in the Report of the Committee to Recommend Certain Safeguards for Persons in Custody and for Members of An Garda Siochana (The Barra O’Briain Report). The Minister responded (21st November 1985) by saying that he had noted the text of the motion adopted by the Select Committee. He referred to Section 7 of the Criminal Justice Act, 1984, which provides for regulations providing for the treatment of persons in custody in Garda Siochana Stations to be made by the Minister and for those regulations to make provision for the assignment to the member in charge of a Garda Siochana Station, or to some other member, of responsibility for overseeing the application of the regulations at that Station. The Section provides further for a draft of the proposed regulations to be laid before each House of the Oireachtas and requires a resolution approving the draft to be passed by each House before the regulations can be made. The Minister stated that he hoped to be in a position to lay the draft regulations before the Oireachtas in the near future. Subsequently, during the course of a speech to the Dail (17th December, 1985) the Minister stated that it was his intention to publish the new regulations as proposals, in order to allow all interested groups an opportunity to comment on them, in advance of their being laid in draft form before the Dail and Seanad.
1.3The Committee considered the delay in taking steps to provide the safeguards recommended in the O’Briain Report, which was published in 1978. Apart from the delay since that date, the Criminal Justice Act has been on the Statute Books since December, 1984 and the regulations for the treatment of persons in custody are not yet available. The Committee is of the view that these regulations are very important in that they will ensure that both citizens and members of the Garda Siochana are protected in their dealings with each other in the investigation of offences. It is essential that the rights of the individual be protected and that there is a procedure for ensuring such protection. Of equal importance is the protection of members of the Garda Siochana from allegations of ill-treatment, made by persons held in custody, which may not be sustainable. The regulations should meet both of these requirements. Furthermore, the Committee considered that the Minister’s response was not sufficiently supportive of the O’Briain Report recommendations which, the Committee considers, should be implemented in full.
1.4Accordingly, the Committee decided to produce this report on safeguards both for persons in custody, for persons who go to a Garda Station voluntarily and for members of the Garda Siochana. The Committee considers that it is important to stress the value of such safeguards and that the timing of the report is particularly opportune, given that the matter will be coming before the Dail in the near future.
2.Safeguards for persons in custody and for members of the Garda Siochana - The O’Briain Report
2.1The Committee to Recommend Certain Safeguards for Persons in Custody and for Members of An Garda Siochana was established in October 1977. The Terms of Reference of the Committee were “to recommend with all convenient speed whether, and if so, what additional safeguards are necessary or desirable for the protection against ill-treatment of persons in Garda custody, having regard to allegations made in relation to persons held in such custody pursuant to Section 30 of the Offences Against the State Act, 1939, or Section 2 of the Emergency Powers Act, 1976, and for the protection of members of the Garda Siochana against unjustified allegations of such ill-treatment; and for that purpose to seek such information as would be likely to be of assistance to them in making a recommendation as aforesaid. The proceedings of the Committee will be private and their report will be made to the Government”.
The Committee reported to the Government in April, 1978.
2.2The O’Briain Report recommended a number of safeguards for persons in custody. Among the recommendations was the appointment of a “Custodial Guardian” whose duty would be to ensure that a person is treated humanely and in strict accordance with Garda Regulations while he or she is in custody.
2.3The recommendations of the O’Briain Report are contained in Appendix B of this Report.
3.Recommendations of the Committee
3.1The Committee noted in its discussion on the Report of the Tribunal of Inquiry into the “Kerry Babies Case” that the Tribunal found that “there was no assault on, or physical abuse of, any member of the Hayes Family or Bridie Fuller by any member of the Gardai”. [Chapter 37, Summary, No. 28].
3.2The Committee further noted that the Tribunal found that “Joanne Hayes, Kathleen Hayes, Ned Hayes, Mike Hayes and Bridie Fuller were, from the strict legal point of view, voluntarily in Tralee Garda Station on 1st May, 1984 and were not under arrest. From the practical point of view however, they all believed that they were in custody and not free to leave the Station until they should have satisfied the Gardai as to their role in the birth and death of the Cahirciveen Baby and this belief added to pressure on them to confess to involvement with that baby”. [Chapter 28, Summary, No. 30].
3.3In addition, in the body of the Report itself, the Tribunal states that “none of them appreciated their rights or their status as persons in the Garda Station”. [Chapter 32, Freedom, at Page 128].
3.4The Committee wishes it to be clearly understood that it is not making any observation on the findings of the Tribunal. However, the Committee considers that the findings of the Tribunal highlight the need to have a format and procedure under which a person is advised of their rights. It is arguable that the allegations giving rise to the establishment of the Tribunal may never have arisen, if there had been in operation a system for formally advising people of their rights.
3.5The Committee recognises that a problem exists for both the public and for the Gardai when persons are being questioned by Gardai. There is an urgent need for effective action to be taken to provide certain safeguards for such persons and for members of the Garda Siochana.
3.6The safeguards being recommended by the Committee at paragraph 3.7 below should apply initially to persons taken into custody under the provisions of the Criminal Justice Act, 1984. It may be desirable to extend these safeguards to all persons at some stage in the future and the matter should be reviewed once experience has been gained. However, the Committee also recommends that the Custodial Guardian should ensure that persons who voluntarily attend at a Garda Station for questioning are fully aware that they are free to leave at any time unless the stage has been reached where they are no longer free to leave.
3.7The Committee recommends that the following safeguards should be provided for persons who are taken into custody under the provisions of the Criminal Justice Act, 1984:-
(i)a member of the Garda Siochana, not involved in the investigation and who is to be called the Custodial Guardian, should be assigned to each person taken into Garda custody,
(ii)the Custodial Guardian would be responsible for
(a)advising persons of their rights and ensuring that they understand such rights,
(b)the general well-being of such persons, including medical attention, if necessary,
(c)ensuring that persons are treated humanely and are provided with adequate food, if in the Garda Station for a long period of time,
(d)ensuring that efforts are made to contact the person’s solicitor, family or friend,
(e)ensuring that adequate records are kept, in particular, details of any complaints made and the action taken, and
(f)certifying that the person has been treated properly and in accordance with the regulations.
(iii)electronic recording of interviews should be introduced as quickly as possible, on a trial basis,
(iv)each person should, provided there is no risk involved, be allowed to retain his/her watch,
(v)suitable accommodation needs to be provided for the questioning of persons, which should not last for longer than four hours, followed by a one-hour break.
3.8The Committee recognises that there may be practical difficulties for those members of the Garda Siochana who are appointed as Custodial Guardians as, for example, where the Custodial Guardian holds a lower rank than an investigating officer. While recognising such difficulties, the Committee is of the view that the safeguards being recommended are essential.
Michael Woods T.D.
22 January, 1986.