A law which would allow a suspect be questioned without a lawyer present has been described by a Fine Gael Senator as "absolutely extraordinary" and most likely unconstitutional.
Barry Ward said he was "astonished" that a draft bill included a provision which would give a garda powers to prevent a solicitor from representing a suspect in custody if that garda felt the solicitor was being disruptive.
It was "totally anathema" to the current legal situation, he told the Joint Committee on Justice which was discussing pre-legislative scrutiny of the Garda Síochána (Powers) Bill 2021.
Head 42 of the bill allows for the exclusion of solicitors “where his or her presence would be unduly disruptive or prejudice an investigation”.
Senator Ward responded: “I can’t see a circumstances in which it would be justifiable that a garda could decide that a lawyer was being disruptive. It is absolutely extraordinary that it would be included. It is unconstitutional. I have grave difficulty with this.”
Assistant principal at Department of Justice and Equality Sarah Sheppard said the bill was subject to a drafting process at present and it may change.
She said the provision was there for incidences in which the solicitor was talking over the subject who was being interviewed “so they can’t be heard and they can’t be recorded properly”.
The right to a solicitor was not in statute at the moment, but it was in practice for a number of years, Rachel Woods, another official from the department, told the committee.
She explained that the provision was intended to be used as a “very limited” provision for the exclusion of a solicitor if they are being deliberately disruptive to a process.
“There isn’t the intention for legal representatives being excluded,” she added.
“Obviously prohibiting a legal representative would be a breach of jurisprudence both international and domestic. We are open to revisiting the provision if it is needed.”
Search warrant
The Policing Authority has called for the deletion of a proposal which would allow gardaí to execute a search warrant without judicial approval.
The heads of the bill includes a provision that in certain circumstances a garda member of superintendent rank or above can issue a search warrant without recourse to a judge.
Policing Authority chair Bob Collins said the provision in the head of the bill ran contrary to the recommendation of the Law Reform Commission which made it clear that warrants should continue to be issued only by the courts.
He told the committee that it would be “difficult to envisage circumstances” where judicial approval of a warrant could not be obtained electronically. “This provision should not be retained,” he stated.
If it was to be retained, the authority was recommending that the officer granting the warrant should be an officer not below the rank of chief superintendent, and that it should be reported to the authority on a quarterly basis.
Senator Ward said “it could never be the case” that a judge or a peace commissioner could not be found at short notice and he feared the abuse of the power by gardaí. “You can always find an emergency if you look for one,” he stated.
Green Party TD Patrick Costello said “judges are available” to approve warrants. “There is no reason why we should not enforce that independence”.
MEP Claire Daly, who made a submission to the committee, stated that no supporting evidence had been made available regarding the need for such an expansion of power that gardaí could issue their own arrest warrants.
She said there was “no justification whatsoever” for this provision.
