Opposition TDs expressed grave concern about the section of the legislation dealing with the unlawful collection of information. Mr Alan Shatter (FG, Dublin South) said he was concerned that "this legislation is riddled with constitutional anomalies", and described the section as "bizarre in the extreme. During the committee stage he said the Minister for Justice had "grave difficulties" with this particular section. It was "badly drafted" and there was a danger that it would be "nodded through", which would compound the difficulties. The section contains a number of measures including one making it an offence for a person to collect or record information likely to be used in committing serious offences. It also provides that a person could defend themselves of this charge by proving that the information was not intended for use in an offence.
Mr Joe Higgins (Socialist, Dublin West) said the section was "all-encompassing". It shifted the burden of proof irrevocably onto the defendant, which the Minister for Justice was denying. "No way can you turn black into white," he said to Mr O'Donoghue.
Mr Trevor Sargent said it raised serious questions given that people were used to the presumption of innocence being a hallmark of the criminal justice system. He said everyone had information likely to be of use with the intention of criminal activity. He cited a phone directory as an example.
Mr O'Donoghue said it was difficult to see how the section would be of any use if the amendments suggested by Opposition deputies to curtail the section were put into effect. He denied Mr Higgins's assertion that the burden of proof was irrevocably moved onto the defendant. He said a person could be charged with an offence but it did not obviate the need for the burden of proof "beyond a reasonable doubt".
The provision allowing for inferences to be drawn from the failure of an accused person to mention particular facts was criticised by Mr Joe Higgins. He said: "Essentially, if somebody does not mention or remember every single thing about some time or some issue on which they were being questioned by the Garda, an inference against them may be drawn."
The Fine Gael spokesman on justice, Mr Jim Higgins, said the provision was a tough but necessary piece of the legislation. "I believe it is necessary because you are dealing with tough people, tough circumstances, potential killers, people who are ruthless and have absolutely no compunction about doing what has to be done to achieve their aims."
The Minister said that to accept Mr Higgins's argument would be to take one of the main pins from under the legislation. He did not accept that allowing inferences to be drawn from silence in specified circumstances represented an unwarranted attack on the rights of an accused person. Such a provision was already contained in the Criminal Justice Drug Trafficking Act 1996.
Earlier the Green party called for the introduction of videotaping in Garda stations for the interviewing of suspects under the legislation. "It is an extremely important amendment and if individuals are going to be held for periods of up to four days they should be videotaped," said Mr John Gormley (Green, Dublin South East). If gardai were to avoid allegations that they were unfair to suspects videotaping was absolutely necessary.
Labour's justice spokesman, Mr Pat Upton, supported the amendment and said that if the Minister was unable to provide videotaping in all stations, he should have it in stations where suspects at which this legislation was aimed were being questioned.