The Minister for Justice, Mr McDowell has introduced sweeping new Garda powers in legislation designed to redress the balance of rights in society, which, he said, had "shifted too far in favour of the accused".
Introducing the Criminal Justice Bill, Mr McDowell surprisingly read the entire of his 23-page second-stage speech in Irish. It is highly unusual for a non-Irish language Bill to be read into the Dáil record entirely in Irish. The Bill aims to enhance Garda powers in criminal investigations and the Minister said that it had had a "long incubation".
The extensive new Garda powers include: increased detention periods from 12 to 24 hours; allowing a chief superintendent to sign a search warrant in exceptional circumstances; a provision for the admissibility of statements by witnesses, who subsequently refuse to testify or retract their original statements; the right to obtain some body samples such as saliva, without permission; a provision to allow for fixed penalties for lesser public order offences rather than a court case, and the right to preserve a crime scene to prevent anybody from entering a scene and interfering with or removing evidence.
The Bill, said Mr McDowell, contained "an essential updating of our law to ensure that criminal offences can be investigated and prosecuted in a way which is efficient and fair, and which meets the needs of modern society".
He is also considering further amendments to the legislation, including provisions for the electronic tagging of offenders and the statutory right of appeal to the courts for a firearms certificate to cater for elite shooters participating in sports events.
It will also require applicants for firearms certificates to prove they have secure accommodation for the weapon, and the Minister is considering increased sentences for serious firearms offences.
The Minister said there was a legitimate concern that "the rights of society to be protected take second place in the quest to ensure fairness to the suspect - that the balance has shifted too far in favour of the accused.
"I believe this is a legitimate concern which must be addressed and I am doing so in this Bill, while endeavouring to ensure that the opposite does not happen. We must always guard against the balance being shifted too far because that will lead inevitably to miscarriages of justice."
Insisting that the Bill "balances the need for effectiveness in fighting crime with the need to uphold individual rights", he said he "sought" to take the views of the Human Rights Commission into consideration, "where appropriate". The commission had not agreed with him that a case had been made for a superintendent to authorise an emergency search warrant, but the Minister argued that the provision was on the same basis as in drugs trafficking legislation.
The Human Rights Commission was also concerned about doubling arrest periods from 12 to 24 hours, but Mr McDowell denied that "increased detention powers risks violating our human rights obligations" under the European Court of Human Rights. Under existing law, intimate body samples are only allowed to be taken with written permission. The Bill allows the taking of saliva to be moved from an "intimate" to a "non-intimate" category and allows for mouth swabs to be taken which contain both saliva and body tissue and "are a valuable source of DNA".
