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GAZETTE
V I E W P 0 I N T
MARCH 1996
Seven Day Detention is Not the Answer
to Drugs Menace
The Law Society Council, prompted
by its Criminal Law Committee, has
rightly expressed deep disquiet about
the in-road into civil liberties
represented by the Minister for
Justice's proposal to give the Gardai
power to detain people for up to seven
days without charge. The proposed
new Garda power is contained in the
Criminal Justice (Drug Trafficking)
Bill 1996 which is currently before the
Oireachtas.
There is nothing of the ivory-tower
about opposition to this measure.
Solicitors who work in the criminal
law area know from direct experience
precisely how illegal drugs are
destroying lives and menacing
society. Such solicitors understand
perfectly well the legal and practical
difficulties of securing convictions
against drug traffickers.
Solicitors will support any reasonable
measures taken by the Government to
help put behind bars the drug godfathers
whose evil activities lead indirectly to
the property thefts and muggings, or
worse, whereby addicts gain money to
feed their habit.
However, the proposed new powers of
detention for up to seven days, to allow
interrogation, create a risk to the civil
liberties of all citizens and should not be
introduced. The Government's objective
is right but the approach to achieving it
is wrong.
The introduction of seven days
detention without charge represents a
serious in-road into recognised
constitutional and civil liberties. The
Minister has advanced no evidence to
justify such a step. Solicitors believe,
Irom practical experience, that such
powers would be generally used
against vulnerable drug addicts who
have become the tools of major drug
dealers rather than against the drug
dealers themselves.
Detention without charge is a grave
infringement of personal liberty
because:
• Imprisonment without trial reverses
the fundamental freedom of the
presumption of innocence until
proven guilty. The detained person
loses his/her liberty without any
evidence being proffered and then
proved in Court.
• Detention for the purposes of
interrogation has been abused in the
past and remains open to abuse at
any time. One need not look as far
afield as the Birmingham Six and
the Guildford Four cases in the
United Kingdom as evidence of this.
• Convictions secured on the basis of
interrogation are notoriously suspect,
as the confession is often the only
evidence against the accused.
In recognition of the validity of these
points, the Government, when passing
into law the Criminal Justice Act
1984, which introduced twelve hour
detention without charge, guaranteed
that a Commission to investigate the
entire matter would be set up. The
Commission under Judge
Frank
Martin
duly met and reported in
March, 1990.
In the six intervening years, the
recommendations of the Martin
Report, particularly that requiring that
the interrogation of detained persons
should be recorded audio-visually,
have not been put into effect. Until
such time as the Government honours
its commitment to introduce the
recommendations of the Martin
Report for the present system of
twelve hour detention, the public
should not be invited to consider an
extension to seven days.
It has been suggested in relation to the
current Bill that the requirement to
bring a detained person before a judge
will prevent abuses during interrogation.
It might prevent physical abuse but it is
no safeguard against the psychological
pressure exerted by prolonged detention
and interrogation, especially upon the
weak and vulnerable such as drug
abusers.
A risk to the civil liberties
of all citizens
The Law Society is also very
concerned at the proposal to involve
the judiciary in extending detention
for questioning. This is quite different
from deciding on whether bail should
be refused to persons who have been
charged with an offence. The detainee
will not have been charged, yet a
judge will be required to decide on
his/her liberty. Moreover, judges will
have no independent evidence before
them and will be forced to rely on the
evidence of the Gardai. This could
undermine confidence in the
independence of the judiciary.
Whilst the Law Society contends that
the legislation itself should not be
introduced on grounds of principle,
it is additionally concerned to note
that no effort whatever has been
made to build adequate safeguards
into this Bill. In particular the
following concerns have not been
addressed:
• It is a right under the European
Convention and a constitutional
right that a detained person should
have access to a solicitor. To date
the Government has refused to
introduce a scheme of legal aid for
advice to persons in detention who
cannot afford a solicitor. Its failure
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