Dáil Éireann - Volume 483 - 25 November, 1997

Release of Detained Persons: Statements.

Minister for Justice, Equality and Law Reform (Mr. O'Donoghue): In the Dáil last Thursday, when dealing with questions on the matter now before the House, I said I would make a full statement when proceedings before the High Court had been concluded. My reason for proceeding in that way was to avoid the situation where something said in this House concerning the merits or otherwise of relevant court decisions might inadvertently impact on the matters now before the High Court.

Deputies will also be aware that when the proceedings in question came before the High Court yesterday evening, they were adjourned until Thursday of this week. However, because there is an understandable desire amongst Deputies and the public in general for further information relating to this matter, it is right that I should put before the House, as fully as I can, the information now available to me.

Naturally, I am as deeply concerned about these events as everybody else. Before I proceed to recite the facts now made available to me, it is vitally important that we avoid the situation where something said in this House about the merits or otherwise of court decisions already made in connection with this matter would impact in any way on matters currently before the [526] High Court. I am sure Deputies will agree on the absolute importance of avoiding that.

In this context, I should also inform the House that the sequence of events I shall outline is based largely on information I received from the Garda. While I will set out as fully as I can the facts that have been made available to me, the House will appreciate that obviously the circumstances surrounding the facts of arrest and detention are matters which can, and often do, become the subject of dispute in court proceedings and, as new information might emerge at a trial, it will fall to the courts to decide the facts of the matter.

At approximately 7.25 p.m. on Thursday, 13 November 1997 three persons were arrested under section 6 of the Misuse of Drugs Acts, for an offence under section 15 of the 1977 Act. The three were detained under section 2 of the Criminal Justice (Drug Trafficking) Act, 1996. There have been numerous arrests under the 1997 and 1996 Acts which have not given rise to difficulty. A short time later two other persons were arrested under section 25 of the Misuse of Drugs Acts 1977 to 1984 for an offence under section 15. These two were also detained under section 2 of the Criminal Justice (Drug Trafficking) Act, 1996.

Approaching six hours into their detention all five prisoners had their detention period extended for a further period of 18 hours by Chief Superintendent Kevin Carty, head of the Garda National Drugs Unit, in accordance with the provisions of section 2 of the 1996 Act. On Friday, 14 November 1997 their period of detention was further extended under section 2 for a period of 24 hours by Chief Superintendent Carty. I am informed by the Garda authorities that on Saturday, 15 November the Garda, at approximately 4.55 p.m., went to the Dublin Metropolitan District Court in order to apply to the court, under section 2 of the Criminal Justice (Drug Trafficking) Act, 1996 for an extension of the period of detention of the five persons under arrest.

The Garda brought with them blank warrants and a copy of the Act. The Garda gave the blank warrants and the copy of the Act to the District Court Clerk who passed the copy of the Act to the judge. The five persons were legally represented. The court was adjourned to enable the court clerk to prepare the necessary documentation. Approximately 20 minutes elapsed, following which Judge Windle heard evidence from Chief Superintendent Carty and granted the order sought by the Garda. At the time this application was made the Garda authorities genuinely believed that Judge Windle had been nominated by the President of the District Court to deal with such an application, a belief shared by the judge. The warrant authorising the continued detention and signed by the judge included the following assertion:

I, being duly nominated by the President of the District Court for the purpose of the Criminal Justice (Drug Trafficking) Act, 1996 .................. hereby authorise the detention of [the persons named] for a further period not exceeding 72 hours.

[527] The Act gives functions to District Court judges only following their nomination by the President of the District Court. I am informed that on 12 September 1996 the President nominated all of the district judges assigned to provincial District Court areas, 22 judges in all, and on 8 November 1996 he nominated one of the judges assigned to the Dublin area.

The Garda advise me that, prior to this case, they have experienced no difficulties in applying the detention and arrest provisions under the Criminal Justice (Drug Trafficking) Act, 1996 since its introduction in September 1996. To date, approximately 255 people have been detained under the Act and the detention was extended by a judge in 33 cases. Furthermore, the Garda advise me that they have not encountered difficulties in applying power of arrest under the provisions of the Misuse of Drugs Acts, 1977 to 1984.

Late on Monday, 17 November 1997, Chief Superintendent Carty became aware, because of developments in another unrelated case, that there seemed to be some doubt as to whether Judge Windle had been nominated by the President of the District Court for the purpose of section 2 of the 1996 Act. I am advised that he contacted Judge Windle that evening at the judge's home but was assured by the judge that there was no cause for concern. Doubts continued to be expressed, however, and on Tuesday, shortly after midday, the Garda contacted the DPP to clarify the position. As the President of the District Court was indisposed, an officer of the DPP contacted the office of the president and was informed that Judge Windle had not been nominated.

The DPP then directed the release of all five prisoners from detention. He also directed the Garda to re-arrest all five prisoners under section 25 of the Misuse of Drugs Acts for the purposes of charging them with an offence under section 15.

The five prisoners were released from custody in the Garda stations where they had been detained at approximately 1 p.m. on Tuesday, 18 November 1997. They were immediately rearrested by the Garda in accordance with statute and pursuant to the directions given and were charged with offences contrary to section 15 of the Misuse of Drugs Acts, 1977 to 1984. All five accused were brought before District Court Judge William Early presiding in one of the custody courts in the vicinity of the Bridewell Garda station. Evidence was given before Judge Early of the arrest, the charging and the cautioning of the accused. A remand in custody was sought.

Solicitors for the accused made submissions to the effect that the prosecution was precluded from arresting the accused for the purposes of having them charged and brought before the court. It was submitted that since the accused persons had been detained pursuant to section 2 of the Act of 1996, and had been released without charge, they could not again be arrested except in circumstances provided for by section 4(1)(b) of the Act. This provides as follows:

[528] Where a person is detained pursuant to section 2 and is released without any charge having been made against him or her, he or she shall not—

(a) be arrested again in connection with the offence to which the detention related, or

(b) be arrested for any other offence which, at the time of the first arrest, the member of the Garda Síochána by whom he or she was arrested suspected, or ought reasonably to have suspected, him or her of having committed,

except under the authority of a warrant issued by a judge of the Circuit Court or a judge of the District Court who is satisfied on information supplied on oath by a member of the Garda Síochána not below the rank of superintendent that further information has come to the knowledge of the Garda Síochána since the person's release as to his or her suspected participation in the offence for which his or her arrest is sought.

This provision exists to facilitate the further questioning of suspects who had earlier been detained under the provisions of section 2 of the Criminal Justice Drug Trafficking Act, 1996.

Detective Inspector Sutton from the Garda National Drugs Unit, on behalf of the Director of Public Prosecutions, submitted that subsection 4(5) of the 1996 Act clearly covered the situation. That subsection provides:

Notwithstanding subsection (1), a person to whom that subsection relates may be arrested for any offence for the purpose of charging him or her with that offence forthwith.

The accused persons before the court had been charged forthwith with the offences which were before the court and as a consequence, the Criminal Justice (Drug Trafficking) Act, 1996, had no longer any relevance to the proceedings.

Judge Early ruled that the rearrest of the accused persons was unlawful and that, therefore, the charges which had been preferred against them, their subsequent custody and their appearance before the court was also unlawful. He indicated that in his view the only rearrest of the accused persons which was possible was a rearrest in accordance with section 4(1) of the Act.

The Garda decided on the spot that the five persons should be rearrested and recharged. They succeeded outside in arresting two, but the other three could not be located. The Garda brought the two they had arrested to the Bridewell Garda Station where, following discussions, it was decided to release the two and consult fully with the DPP.

Following further consultation the Director of Public Prosecutions directed that warrants should be sought from a district judge for the rearrest of the five persons. The Garda decided that, as [529] Judge Early was familiar with the case, the warrants should be sought from him.

That evening three gardaí travelled to Judge Early's home with a view to swearing information for arrest warrants for the five released persons, arriving at about 9.30 p.m. The judge declined to issue the warrants as he believed that such were not appropriate in the light of his rulings earlier in the day. He indicated that, in his view, the Director could only apply for a warrant pursuant to section 4(1) of the 1996 Act.

The gardaí submitted to the judge that section 4(5) of the 1996 Act clearly covered the situation and that there was no bar to the rearrest of the suspects for the purpose of charging them with an offence. Judge Early, however, did not agree.

The Garda again consulted the DPP and on the morning of Wednesday, 19 November 1997 a solicitor from the office of the Chief State Solicitor attended at the Bridewell Courts on the instructions of the Director to apply for arrest warrants. Judge King dealt with this application. The applications for warrants were grounded upon the sworn information of two sergeants of the Garda Síochána and were warrants directing that the individuals concerned be arrested and brought before the court for the purposes of being charged. It was pointed out to Judge King that although she was possessed of certain additional powers, pursuant to her nomination by the President of the District Court for the purpose of section 2 of the 1996 Act, it was not the intention of the Director of Public Prosecutions to rely on these powers as the Director did not wish to obtain any order pursuant to the Act of 1996. Judge King in chambers, having being informed of the earlier decision at 2 p.m. on Wednesday, 19 November 1997 issued the necessary warrants for the arrest of the five persons.

On the Wednesday evening two of the warrants were executed and on the following day a third. The three persons who had been arrested appeared before Judge William Early once more on the morning of Thursday, 20 November 1997. All three were represented by solicitors. The cases of the first two were called first and there was evidence given of arrest, charge and caution. The Garda sought a remand in custody and both accused were remanded in custody for a week.

There was a delay while the third person awaited the arrival of counsel in addition to his solicitor. When this case was next called, counsel for the third person made submissions stating that the provisions of section 4(5) of the Act of 1996 were overridden by the provisions of section 4(1). It was indicated by the State Solicitor that the warrant before the court which had been executed by the detective garda was a normal arrest warrant and that section 4(1) of the 1996 Act had no relevance to it. The State Solicitor argued that the accused was charged with an offence and that the Court had jurisdiction to remand him. In response, Judge Early stated that he had to have regard to section 4(1) of the Act [530] and he then made an order discharging the accused.

After this order was made counsel and solicitor for the two persons already in custody obtained further instructions from their clients — by then in Mountjoy Prison — and at about 4 p.m. they confirmed to the judge that they had instructions to ask him to vacate his earlier order. Judge Early then indicated that he would hear their applications. Having considered arguments from the counsel for the accused and the Chief State Solicitor, Judge Early indicated that in his view it would be unjust not to vacate his orders and he did so. This meant that all three accused had to be released.

On 21 November 1997 a High Court Judicial Review by way of certiorari and mandamus was applied for on behalf of the Director of Public Prosecutions in relation to the refusal of Judge Early to accept jurisdiction both on Tuesday, 18 and Thursday, 20 November. That case is pending in the High Court.

The procedures adopted in this case have on many previous occasions been successfully applied in court proceedings by the Garda Síochána and no difficulties have been encountered. I am advised that the re-arrest of persons in accordance with statute and common law for the purpose of charging has not been the subject of the discharging of accused persons prior to this case. I am also advised by the Garda authorities that whether or not the judge dealing with the extension of time originally — Judge Windle — had been nominated by the President of the District Court, as required by the 1996 Act, the same procedures would have been followed in relation to the re-arrest, that is, procedures followed in other cases. On this basis, the issues which are now before the High Court would have arisen in any event.

Those are the facts available to me. What finally happens in relation to the decisions made by the District Court is now a matter for the High Court and it would be wrong of me to speculate as to what these decisions might be or to say anything about the merits or otherwise of the decisions already reached.

However, there are other matters — not bearing on the law — on which the House is entitled to comment. Last Thursday I gave the House, both in the debate on the annual report of the European Monitoring Centre for Drugs and Drug Addiction and in response to Private Notice Questions, the information which was available to me then in relation to these matters, which I could stand over and which I could properly disclose to the House at that stage.

Some Members of this House, and some commentators outside, expressed dissatisfaction with the information which I was in a position to make available. It is important, therefore, to put on the record the constraints under which I had to operate. Central to these, as I have said more than once, is the fact that the issues in question arose in the context of court proceedings.

[531] Certain issues arise from that. First, it has never been the practice of Minister for Justice to comment on judicial decisions. It would have profound implications for the operation of our democracy if it were to be otherwise. Of course, it would be tempting as a short-term political expedient for a Minister for Justice to express dissatisfaction with a court ruling when facing questioning in this House. However, a Minister for Justice, irrespective of the criticism, who would respond in that way would not, on a more sober analysis of the situation, have acted either properly or wisely. To the best of my knowledge, it would be unprecedented for this House to discuss issues arising in court proceedings which were ongoing. It may be the case that last Thursday I did not place sufficient emphasis on those constraints which were upon me.

Further points need to be made about the context in which matters such as this are discussed in the House. They may be basic but in the context of what has been said in recent days they are worth repeating. As legislators we are responsible for enacting legislation. It is then solely a matter for the courts to interpret that legislation. From time to time some of us might not be happy about the interpretation a court puts on specific legislation. That may be perfectly understandable but that is the price we pay — and a price well worth paying — for having an independent Judiciary.

Decisions in the lower courts are appealable to higher courts. To seek to rush to judgment about the proper interpretation of legislation in the light of a particular court decision before appeal procedures, which in practice in some cases find that decisions of lower courts have been wrongfully decided, is not the way to proceed. I know that Deputies agree on this point. I am underlining it, not because the point is doubted by the vast majority here but because it is important that I put on record the very clear distinction between our role as legislators and the role of the courts as the interpreters of the law. While respecting and accepting the separation of powers it is still reasonable to ask whether I could have given more information to the House last Thursday. On that day, and for some time before that, the Garda who would be in a position to give a detailed report of all aspects of the case were involved in pursuing their primary operational objective of trying to ensure the persons suspected of the offences in question were brought before the courts. These matters had to be dealt with under extreme pressure and I believed, and still do, that for me to have sought to divert those resources into the preparation of detailed reports for my information would have meant I was insisting that my concern that I should be able to answer fully and immediately to the House should be placed above that of ensuring the difficulties [532] which had arisen in these cases be addressed immediately by the courts.

An Ceann Comhairle: I advise the Minister that the 20 minutes to which the House agreed for his statement is exhausted. Is it agreed to allow the Minister to continue?

Mr. Higgins (Mayo): We have no problem provided we can question the Minister for 45 minutes.

An Ceann Comhairle: Is it agreed to extend the time for the debate so that the Minister can complete his statement? Agreed.

Mr. O'Donoghue: Even at the expense of political and media criticism of me I believed it right, and still do, that the gardaí dealing with the case should have been allowed to continue the process of trying to resolve the issues which had arisen. I am not attempting to understate the significance of fully informing the House at the earliest possible opportunity in regard to matters of public concern as it is vitally important that this House should have information. It was not possible to obtain information that I could stand over fully while all concerned were engaged in what I regarded, and still regard, as the vitally important task of attempting to rectify the difficulties which arose.

From the time my Department first became aware that there were difficulties, the position taken was that the resolution of these difficulties should have priority. The Secretary General of the Department was first contacted on the matter by a Deputy Commissioner of the Garda at about 7 p.m. on Tuesday and was advised that a legal problem had arisen concerning the detention of the accused persons and that, on the instructions of the DPP, the Garda were in the process of obtaining arrest warrants. He was also advised that they were proceeding to resolve the issue so that the matter could be regularised.

The Secretary General, who was attending a meeting at the time in connection with an unrelated matter, said to the Deputy Commissioner that while acknowledging the gardaí immediately involved in the matter were then fully engaged in attempting to resolve the situation, it would be important to have clarification as soon as possible about the legal issues arising so that these could be discussed with the Department's law division and the Minister could be briefed on the exact difficulty involved.

The following day my Department was in contact with the DPP's office and the Garda to find out exactly what were issues. I do not propose to comment in any detail on the legal issues which have arisen in the course of the proceedings in question for the reasons I have mentioned. However, if ultimately it is found that the Criminal Justice (Drug Trafficking) Act, 1996, is not operating in the manner which the House would wish then the matter will have to be addressed as [533] a matter of urgency by it. I assure the House that should further legislation be necessary the Government will bring it forward as a matter of urgency, but no one is in a position yet to say whether that will be required.

In this context I should refer to the fact that the text of the Bill submitted to the previous Government for approval prior to presentation the Dáil would, for what were stated to be practical reasons, have authorised all judges of the District Court to make orders continuing the detention of persons under the Criminal Justice (Drug Trafficking) Act, 1996, without having to be nominated by the President of the District Court. The Bill as published by the then Minister included a nomination requirement. It is not a matter for me to explain why the then Government decided to include the requirement in relation to the nomination of judges in the Bill as published, without which the difficulties about nomination — which are not now the core difficulties — would have been avoided. Aside from the present difficulties, the Act has generally worked well and proved valuable in the fight against drug trafficking.

The Minister for Justice, Equality and Law Reform is not involved in any way in the prosecution of individual criminal cases. Investigation of crime is a matter for the Garda and it would be wrong for a politician to interfere. In that regard section 8(1) of the Police Forces Amalgamation Act, 1925 reads as follows:

The general direction and control of the amalgamated force shall, subject to regulations made under or continued in force by this Act, be vested in the Commissioner of the amalgamated force who shall be styled and known as the Commissioner of the Garda Síochána.

The manner in which the Garda conducts its investigations is laid down in law and the law provides that it is to the Director of Public Prosecutions that the Garda must look for directions in these matters.

A further issue which arose last Thursday was whether a representative of the Chief State Solicitor's Office was present last Saturday when the application for further detention was made before Judge Windle. It is not in accordance with normal practice for the Garda to have legal representation for an application of this kind. The application then made by the Garda was granted. If, when the details of this case are fully reviewed, it appears there is a need for changes of practice, those changes will be made. In the light of what has now transpired I have asked the Garda Commissioner to consult the Chief State Solicitor and review the issue of representation in such cases.

What is important now is to calmly and sensibly assess what lessons might be learned from what has happened. All of those lessons may not be clear at this stage but, without prejudice to the ultimate conclusion of judicial proceedings, at least three issues arise.

[534] The first is that the nomination of District Court judges for the purposes of the Drug Trafficking Act, 1996 and everything to do with the process is a matter for the President of the District Court. Without impinging on that statutory function, I propose to discuss with the President of the District Court the procedures his Office might put in place to ensure that those who need to know who is nominated for the purposes of the Act are made so aware. I will be glad to make the services of my Department available to assist him should he so desire. The Secretary General of my Department has already been in touch with the President of the District Court and, without going into the details of the matter pending further discussions with the President, I can say that the President has certain concerns about the matter of nominations which will require further discussion with him. Incidentally, when the 1994 Extradition (Amendment) Act was passed it contained provision for the nomination by the President of the District Court of judges to deal with extradition matters. On that occasion, because of the direct role of the Minister in extradition matters, my Department sought and obtained information from the President of the District Court as to whom he has nominated. As there is no corresponding role in the case of the drug trafficking legislation, this procedure was not invoked by the previous Minister following the enactment of that Act.

The second issue relates to comments to the effect that the level of criminal law reform has been such that it is difficult for people who have to operate it to keep fully abreast of all developments. There is substance in this. However, once legislation is enacted it is a matter for the courts to interpret it. For that reason there has been a reluctance on the part of my Department to take any action in relation to explaining the effects of that legislation. There is undoubtedly a difficulty involved in this regard — again having to do with the separation of powers — but I have instructed my Department to examine what might usefully be done in this regard. This will involve consultations with the judiciary, branches of the legal profession and the Garda Commissioner. I would also welcome any views Members of this House have on this matter.

The third issue is that despite what I have said about the separate roles of the Garda, the State prosecution service, the Judiciary and my Department — in this I have said nothing other than what has long been accepted in this regard — there is still understandable confusion in working out who is responsible for what. The justice system is a complex one where the doctrine of separation of powers in highly relevant. The Minister has a duty to explain, and I accept this duty. However, apportionment of blame is not something I am prepared to embark upon, particularly as these matters are still before the courts. The difficulties of knowing who is or should be responsible for various matters strongly underlies the need for the structural changes now under [535] way in the justice system, for example, whether a separate and independent courts agency will be established. This development will not absolve the Minister from the duty to answer to this House — when matters go wrong the House is entitled to answers from an elected representative of the people — but it should at least mark out lines of responsibility more clearly.

I have given as full an account to the House as I am now in a position to do. I will endeavour to answer any questions Deputies may wish to raise while emphasising the need to avoid anything which might impact on proceedings currently before the court.

An Ceann Comhairle: I appeal to Deputies to ask brief questions.

Mr. Higgins (Mayo): Will the Minister apologise to the House for the unprecedented discourtesy he showed it last week when all the information he imparted today was or should have been at his fingertips? All of the facts were known, yet he engaged in bluster, filibuster and an act of gross discourtesy to the House. Does he recall that one of his first acts as Minister for Justice was, on 9 July, to continue in operation by way of a motion before the House sections 2, 3, 4, 5 and 6 of the Criminal Justice (Drug Trafficking) Act? He stated: “In my view the operation of the relevant sections of the Act for the relatively short period in question has made a substantial contribution to the fight against the drugs menace”. Is he confirming this today by virtue of the fact that 255 people have been detained and 33 convictions have been brought?

Why did Judge Windle not know he was not a nominated judge for the purpose of this Act? Was the list of approved or nominated judges circulated to the Department of Justice or the Garda by him when he renewed the order on 9 July? Notwithstanding his statement that it is unusual, was it not the obligation and duty of his Department to have somebody in court to advise the Garda, for example, the Director of Public Prosecutions, his office, the Chief State Solicitor or somebody from that office? Is the Minister aware of what section 11 says?

Mr. O'Donoghue: With all due respect, I ask the Deputy to pose one question at a time.

Mr. Creed: The Minister should answer the questions.

Mr. O'Donoghue: On the position here last Thursday and whether there was a discourtesy shown to the House, the facts are as I outlined them. The detailed information required was not available to me.

Ms McManus: It was in the newspapers.

Mr. O'Donoghue: It could only be supplied to my Department by those members of the Garda [536] involved in the case. On Thursday those gardaí were party to a series of arrests, releases and court proceedings, which I have described, and were not in a position to provide the detailed reports which would have enabled me to answer many of the questions put to me.

Mr. Howlin: The reports were in the newspapers.


Mr. Rabbitte: You are looking good, Willie.

Mr. O'Donoghue: If the Marcel Marceau of the Rainbow who has become the Dustin of the Opposition gave me an opportunity to say what I have to say he might learn something.


An Ceann Comhairle: The Minister without interruption, please.

Mr. O'Donoghue: If questions are asked in the House about specific cases at a time when the Garda are fully engaged in dealing with them Members must accept that it will not always be possible for me to respond immediately as fully as I would normally.

Mr. D. Carey: That is not good enough.

Mr. O'Donoghue: It stands to reason but if that is not good enough I will move on to the next question.

Mr. Sheehan: When the Minister was on this side of the House he had a different view.

Mr. O'Donoghue: On whether the question was mishandled, the members of the Garda Síochána at the centre of the fight against drugs, together with the law officers of the State and the courts, were working under considerable pressure attempting to resolve the very serious and difficult operational issues that had arisen. The Garda had been working on this case for a considerable period of time. That work was continuing apace at that time and in those circumstances I was not in a position to give the information required.

Deputy Higgins asked why the Garda and Judge Windle did not know that he had been nominated. The wording of the warrant issued by Judge Windle reassured the Garda in their belief that Judge Windle had been nominated. When doubt was first raised about the nomination on Monday, 17 November, Chief Superintendent Carty contacted Judge Windle in his home and he was told there was no cause for concern. I want to make this very clear.

Mr. Higgins (Mayo): On a point of clarification, was he informed by Judge Windle?

Mr. O'Donoghue: When there was a doubt about the nomination on Monday, 17 November, [537] Chief Superintendent Carty contacted Judge Windle in his home and was told by Judge Windle that there was no cause for concern. On whether District Court judges should have been nominated by me, under legislation the nomination of a district justice is a matter for the president of the District Court. That legislation was proposed by the then Minister for Justice and passed by this House. In legislation which I previously brought before the House I suggested it would be best if the matter were brought before Circuit Court judges, but the Government decided in its wisdom that the president of the District Court should make the nominations. The president of the District Court, therefore, had responsibility to make those nominations.

Deputy Higgins asked whether the judges nominated should have been informed by the Department that they had been so nominated and whether other judges should have been informed by the Department that they were not so nominated. I was not Minister for Justice, nor was I in Government when the nominations were made.

Mrs. Owen: The Minister was in office in July.

Mr. O'Donoghue: I will come to that.

Mr. Barrett: The Minister should not try to put the blame on somebody else.

Mr. Yates: When did the Minister change his mind about ministerial accountability?

Mr. O'Donoghue: Are we talking about the truth or about victimising a Minister regarding a matter for which he has nothing to account? If the truth hurts I cannot help that. They are the facts.

Mr. Quinn: On a point of order, my understanding of the order before the House is that the Minister had 20 minutes to make a statement, and we gave him more than 20 minutes. The House would then have 45 minutes to ask questions. I put it to the Minister that his extensive replies are taking up that time. I serve notice that we will not accept filibuster replies. We will withdraw co-operation from this House unless the matter is satisfactorily dealt with. We were given an undertaking that there would be 45 minutes in which to ask questions after the Minister's statement. I am asking the Minister to keep his answers as brief as possible.

An Ceann Comhairle: At the outset of the 45 minutes I appealed to Members to keep their questions short and concise.

Mr. Barrett: The questions are short, it is the replies that are long.

An Ceann Comhairle: Omnibus questions are [538] out of order. Let us hear the Minister's answers and Deputies should then ask short questions.

Mr. Stagg: The Minister is filibustering.

Mr. O'Donoghue: I am merely seeking to reply to the questions raised by Deputy Higgins. I was not the Minister for Justice at the time the judges were nominated. I have to accept there was nothing in the legislation which obliged the Minister of the day or the Department of Justice to draw up a list. It may have occurred to another Minister that the judges should have been so informed, but they were not.

Mr. Barrett: The Minister renewed the Act in July.

Mrs. Owen: The Act was renewed in July.

Mr. O'Donoghue: Certain provisions of the legislation were renewed in July, but at that time the judges concerned had been nominated by the judge. I was not made aware at any stage there was anything wrong.

Mr. Rabbitte: I hope the Minister is not starting to read another page of script.

Mrs. Owen: He should not blame me.

Mr. D. Carey: Leak it to the papers.

Mr. O'Donoghue: Deputies should make up their minds about whether something was wrong. Even if Judge Windle had not appeared on the scene, the issues which must be dealt with by the High Court relate to matters which arise from the decision of a different judge, Judge Early. Those are clearly matters for the High Court. The Garda did not seek to have legal representation in court on the date on which the extension of detention was sought or on the date of the re-arrest or recharging. The Garda consider those matters to be straightforward court procedures and they have been followed on numerous occasions without legal representation for the Garda being present. Even in serious murder cases the Garda would not have legal representation present during the arrest charging procedures. The accused had legal representation present, but that was not unusual.

I do not wish to labour the point, but I have outlined the facts and they are incontrovertible. What is taking place is——

Mr. Stagg: Filibustering.

Mr. Yates: The Minister has changed his mind on ministerial accountability.

Mr. O'Dea: Has the Deputy nothing else to say?

Mr. O'Donoghue: ——the vilification of a Minister for Justice because some people are sore [539] about the fact that the truth was told to them over a number of years when they were in Government.

A Deputy: That is disgraceful.

Mr. D. Carey: This is not good enough.

An Ceann Comhairle: I appeal for short concise questions. Omnibus questions are not in order.

Mr. Rabbitte: What about short concise answers?

Dr. Upton: Will the Minister describe the procedure adopted by the President of the District Court when he nominates judges for the purpose of this Act? How are his decisions communicated to the judges and the wider public? What measures are taken to publish the decisions he takes? Does he agree this debacle is due almost entirely to a simple administrative error which could have been avoided by taking the case before the appropriate judge? Does he accept his Department, which sponsored the legislation, has an obligation to ensure it is efficiently and effectively administered by the courts and the Garda? How are District Justices informed of the provisions of Acts of the Oireachtas? Are they expected to inform themselves or does his Department provide them with guidelines and information on the implications of Oireachtas decisions in regard to procedures in the courts?

Mr. Dempsey: The Deputy asked four questions.

Mr. O'Donoghue: Deputy Upton will appreciate that the nomination of judges for the District Court comes under the Criminal Justice (Drug Trafficking) Act, 1996. It is a matter for the President of the District Court and one in which I have no function.

Mr. Rabbitte: That is not the question the Minister was asked.

Mr. O'Donoghue: I was asked a question by Deputy Upton to which I am attempting to reply. The President of the District Court nominated the 22 permanently assigned provincial District Court judges for the purposes of the Act on 12 September 1996.

Mr. J. Mitchell: Who did he tell?

Mr. O'Donoghue: Deputy Upton asked how the judges were nominated. The judges were informed of their nomination by letter from the President of the District Court, who wrote to them to inform them of the position.

Mr. Howlin: Who did he tell?

[540] Mr. O'Donoghue: The appointment of judges of the District Court, pursuant to the 1996 Act, was a matter for the President of the District Court.

Mr. Barrett: What was the problem?

Mr. O'Donoghue: It was a matter for the Minister of the day as to whether she should have taken certain administrative measures in relation to the publication of a list, though there was no statutory obligation on her to do so.

Mr. Barrett: What did the Minister do in July?

Mr. O'Donoghue: I admit there was previous legislation. There was the Extradition (Amendment) Act, 1994, in which there was provision for the nomination by the President of the District Court of District Court judges in Dublin to deal with extradition cases. The Minister for Justice, in accordance with that legislation, has a role in extradition cases. Obviously the Minister of the day would require information as to who the judges were to discharge his or her functions adequately. In that instance, the President supplied the information sought, and it was conveyed by the Department of Justice, Equality and Law Reform to the Garda. There is no similar function in the Criminal Justice (Drug Trafficking) Act, 1996. When one asks about appointments, it was left to the President of the District Court under the legislation to deal with the arrangements for the nomination of judges and, to the best of my knowledge, the dissemination of that information.

Mr. Barrett: Why the mistakes?

Mr. O'Donoghue: The President wrote to the judges in question, but if the President feels my Department can assist him in any way with this or any other matter in future, we would be delighted to do so.

With regard to the question as to whether the judges are given copies of relevant legislation, I understand they are and the Garda authorities circularised gardaí with what was contained in the Criminal Justice (Drug Trafficking) Act, 1996.

Mr. Barrett: What is the problem?

Mr. O'Donoghue: The appointment of judges to the District Court was a matter for the President of the District Court. Those judges were appointed long before I became Minister. All Members recognise that. I am being as fair as I can be.

Mr. Barrett: The Minister is not being fair.

Mr. O'Donoghue: As Deputy O'Dea suggested, I am being charitable.

An Leas-Cheann Comhairle: I ask Members not to put supplementary questions which prolong the Minister's replies. Questions should be [541] put in the order in which Deputies submitted their names.

Mr. Rabbitte: The Minister would go back to the Brehon laws if he was allowed.

Mr. Flanagan: The Minister's appeal for calm is somewhat at variance with his swinging from the rafters when he was Opposition spokesperson on justice.

Mr. Dempsey: He had more reason.

Mr. Flanagan: It is ironic that he is asking for calm now.

An Leas-Cheann Comhairle: The Deputy should put a question.

Mr. Flanagan: The Minister stated that 255 persons were detained under the provisions of this Act. Of those, extensions of time were granted in 33 cases. In relation to either the 255 or 33 cases, how many of these people were convicted? How many of those convictions were sanctioned by custodial sentences? Is the Minister prepared to assure the House the convictions of all those convicted or currently serving sentences are sound and safe?

Mr. O'Donoghue: I would like to help the Deputy but some of these matters are before the courts and I do not have the statistics available to me, nor did I anticipate I would be asked for them.

Regarding the concept of swinging from the rafters, let us address that matter honestly. Are we discussing the release of the five people charged with very serious offences or the record of the Minister for Justice in Opposition which I will gladly discuss with any Member of the House? I introduced 13 Bills, one of which dealt with freezing the assets of drugs barons, some of the most innovative legislation ever introduced in the House. The Members who are not of the view that this issue should be used as pay-back time should ask the relevant questions.


Mrs. Owen: The Minister should not belittle himself.


An Leas-Cheann Comhairle: Deputy Flanagan on a point of order.

Mr. Flanagan: My point of order refers to the Order of this House, agreed on the Order of Business, that the Minister would subject himself to questions and the express assumption that the questions would give rise to answers. Will the [542] Minister answer my question about the soundness of the convictions referred to?

An Leas-Cheann Comhairle: The Chair is not responsible for the Minister's answers. If there are fewer interruptions we might be able to take questions from the Members offering.

Ms McManus: Will the Minister accept we have heard a remarkable story of bungling incompetence and ignorance that began with what should have been a simple procedure of the Garda going into court. The State was the only player in this that did not have legal representation when the Garda went into court to seek an extension of the detention order. The five men arrested had legal representation but the State did not. When the Garda went into court they had a copy of the Bill which clearly states that judges will be nominated to have this power. The judge did not know he did not have this power.

An Leas-Cheann Comhairle: Deputy McManus, in fairness to other Members, time is limited on this debate.

Ms McManus: I have a right to ask a question and the public has a right to know.

Deputies: Hear, hear.

An Leas-Cheann Comhairle: The purpose of this question time is to elicit information, not to make statements. I appeal to Members to ask questions and keep them brief so that as many Members as possible will have an opportunity to ask questions.

Ms McManus: For the second time I will try to get accurate information from the Minister. Is it the case that when the detention order was sought the judge, the Garda or the Department did not know the judge did not have the power? The bewildered public would like a simple answer to a simple question. How were the Garda and the judge supposed to know this, given there was no procedure for telling them? Is the Minister responsible? It is clearly stated in his Department's SMI report that he is responsible for procedures in the court and management of administration. Is the Minister saying the Garda and the judges had to guess whether they had this authority, or were they to figure it out in some way? Does the Minister have no role to play in this? It is unacceptable to the public that the Minister is not taking responsibility for what is a major administrative function——

An Leas-Cheann Comhairle: Please, Deputy McManus, in fairness to other members of the Opposition.

Mr. O'Donoghue: If there was bungling, ignorance——

Mr. Yates: There was.

[543] Mr. O'Donoghue: ——and any negligence as outlined by Deputy McManus clearly it did not emanate from me.


Mr. Barrett: Will the Minister tell us what happened on 9 July when he was proud to renew all the sections?

An Leas-Cheann Comhairle: Deputy Barrett, allow the Minister to answer without interruption.

Mr. O'Donoghue: It is a cause of the deepest concern that the Garda and Judge Windle did not know at the time of the original application that Judge Windle was not nominated by the President of the District Court. I repeat for the umpteenth time that the wording of the warrant issued by Judge Windle reassured the Garda in their belief that he had been nominated. Judges had been nominated by the President of the District Court in 1996. If Opposition Deputies feel those judges should have been advised of their nominations they should have advised them in Government.

Mrs. Owen: Why did the Minister not do it in July?

Mr. O'Donoghue: The position in July——

Mr. Barrett: The Minister renewed the sections in July.

Mrs. Owen: The Minister will not get away with this.

Mr. O'Donoghue: ——was that certain provisions of the legislation were renewed. At no stage did anybody say to me the Minister for Justice who preceded me had not informed the district justices concerned that they had been nominated by the President of the District Court.


Mr. O'Donoghue: If there is blame in that respect then, in all fairness, it lies with the previous Administration and the inquisitors who have come in here today with a different agenda. The point is still missed by Deputy McManus and others. If Judge Windle had not been involved in the case, the position would be that the issues before the High Court arise out of judgments delivered by Judge Early.

Mr. Quinn: That is not the point.

Mr. Yates: It is a bit complicated.

Mr. O'Donoghue: The point then is that Deputy Quinn believes the district justices who were nominated by the President of the District Court, while the Government of which he was a [544] member was in office should have been told by the previous Government. That is the logical answer.

Mr. D. Ahern: The letter must have got lost again or, was it sent in the first place?


Mr. D. Ahern: Members opposite should have learned from the previous mistake.

Mrs. Owen: It is just ridiculous.

Mr. Gormley: Will the Minister assure the House we will not have a repeat of this comedy of errors? Will he say if all the district justices and all the gardaí now know the designated judges? Has the Minister met the Garda Commissioner since this debacle?

Mr. O'Donoghue: Deputy Gormley may be aware at this point who are the nominated judges in Dublin.

Mr. Stagg: The Minister is still not telling us.

An Leas-Cheann Comhairle: Deputy Stagg, please allow the Minister to speak without interruption.

Mr. O'Donoghue: In so far as it may be necessary to discuss the tightening up of procedures with the President of the High Court and where there may or may not be a need to amend legislation those matters will receive immediate attention.

Mr. Stagg: The Minister has still done nothing about it.

Mr. O'Donoghue: I met the Garda Commissioner to discuss all these matters.

Mrs. Owen: When?

Mr. O'Donoghue: I will liaise with anybody who can help to improve matters.

Mr. Quinn: Particularly when the Minister is not responsible for anything.

Mr. O'Donoghue: I will do everything I possibly can to ensure the law is respected, upheld and enforced.

Mr. Howlin: Bluster.

Mr. O'Donoghue: It is grossly unfair, although I accept it is part of political life, to engage in histrionics on a vindictive mission which has nothing to do with the issue.

Mr. Boylan: Will the Minister agree the great work of the gardaí charged with the task of preventing drug abuse has been seriously undermined by this shambles? Will he also agree the [545] signal to criminals and would-be criminals is that they can get away with serious crime? Will he further agree that while he is Minister crime will pay?

Mr. O'Donoghue: The Garda Síochána have not been undermined by these serious matters. I visited the national drugs unit last week not for the purposes of glorification——

Mr. Yates: Photographs?

Mr. O'Donoghue: ——but to congratulate the young men concerned on their outstanding work.

Mr. Yates: Behind the plants?

Mr. O'Donoghue: One cannot get away with serious crime. There was a series of decisions by judges some of which are being considered by the High Court. It would be wrong to predict, prejudge or prejudice its decision. Like all citizens, when it is handed down I will respect it.

Mr. J. Mitchell: The kernel of the problem appears to be that the President of the District Court made his nominations but did not communicate them to the Department or the Garda Síochána. Is that correct? If not, to whom did he communicate them? Did the Department or the Garda Síochána seek a list of the nominated judges?

Mr. O'Donoghue: This brings us back to an earlier question relating to the nomination of judges under the 1996 Act.

Mr. J. Mitchell: Will the Minister answer it?

Mr. Higgins (Mayo): I asked the same question.

Mr. O'Donoghue: My understanding is that the President of the District Court wrote to the judges whom he nominated pursuant to the 1996 Act informing them they had been so nominated.

Two problems arise here. One relates to the matter of Mr. Justice Windle believing he was a nominated judge. The second relates to Mr. Justice Early and the matter of an application being made to the court by the State pursuant to section 25 of the 1977 Act.

Mr. Higgins (Mayo): Did the President of the District Court notify the Minister's Department?

Mr. O'Donoghue: Without wanting to prejudge the High Court decision the difficulty relates to precisely what the High Court will say in so far as these matters are concerned under the provisions of the 1996 and 1997 Acts. The President of the District Court wrote to the district justices concerned and, to my knowledge, did not write to anybody else.

Mr. Dempsey: The Minister referred to the [546] nomination of all District Judges on 12 September 1996.

Mr. D. Ahern: Who was in charge then?

Mr. O'Donoghue: To the best of my knowledge, a list was not provided to the Department of Justice or the Minister of the day. Neither did the Department or Minister of the day write to any district justices in connection with the matter. Even had they done so, the judgments arising out of Mr. Justice Early's decision would still be before the High Court.

Mr. D. Ahern: That is what we are complaining about, that there is nobody in charge.

Mr. Rabbitte: Three times today the Minister said the reason for his lamentable performance on Thursday last was that the courts were seized of this matter. What has changed in the interim apart from the fact that three of the accused have absconded? Why was he prepared to come into the House on Thursday last in such a state of unpreparedness, without any official or any knowledge of the issues, whereas today he comes in with so many officials, the only thing missing is a photographer in the bullpen?

Mr. Dempsey: Deputy Rabbitte knows all about that.

Mr. Rabbitte: If the Minister understands the implications of that earlier performance, can he also understand the reason this House would not have confidence in any Minister who allowed his officials to send him in here in the naked state in which they did on Thursday last; that we appear to have an administration of justice system——

Mr. C. Lenihan: Speech, a Leas-Cheann Comhairle.

Mr. Rabbitte: That is something we will not hear from you, Conor.


Mr. Rabbitte: Is it not the case——

An Leas-Cheann Comhairle: Deputy Rabbitte, without interruption, please.

Mr. C. Lenihan: The Ceann Comhairle specifically ruled out omnibus questions and speeches prior to your arrival here, a Leas-Cheann Comhairle? I hope that decision will be upheld.


An Leas-Cheann Comhairle: Deputy Rabbitte to continue without interruption.

Mr. Rabbitte: There is a serious aspect of all of this for the administration of justice. This House cannot have confidence in circumstances arising in which the justice system is being administered by the Department of Justice rather than by the [547] Minister. Does the Minister know whether three of the accused have fled this jurisdiction?

Mr. O'Donoghue: We have now been reduced to the lowest common denominator, with Deputy Rabbitte saying to the best of his ability, that, when I came into the House last week, my performance was lamentable. Whereas we began with my being blamed for judicial decisions,——

Mr. Barrett: Nobody blamed the Minister for judicial decisions.


Mr. O'Donoghue: ——progressing from there to me and the Garda being blamed, from there to the Chief State Solicitor's office being blamed, we have now been reduced to this. I came into the House last week because private notice questions were tabled. Deputy Rabbitte knew that, as he has been around here for more years than most of us care to remember. As Minister for Justice, Equality and Law Reform, even though I did not have the relevant information available to me, once those questions were allowed by the Ceann Comhairle, I was obliged to come in and give whatever information I could. Whether I performed lamentably or well, throughout this entire affair I have been as honest and truthful as I could have been — that has been my objective from the outset. Deputy Rabbitte asked if I understood the implications of the fact that the Minister runs the Department, not the other way around. I assure Deputy Rabbitte — there has been considerable evidence of this already and much more is to come — that I am very much in charge of the Department of Justice, Equality and Law Reform. Deputies should make no mistake about that.

Mr. Gilmore: That is what worries me.

Mr. O'Donoghue: I recall a famous speech made by Deputy Rabbitte in the House regarding me seeing criminals on hedgerows on my journey to Dublin from Cahirciveen, but in the meantime the red band of the rainbow did not see any problem from behind the darkened windows of the State Mercedes.

Mr. McGinley: Where are the three?

Dr. Upton: Has the Minister made any changes in the administration of his Department relative to these matters since this event occurred last week? Has the Department been officially informed of the nominated judges, and have the Garda been so informed?

Mr. O'Donoghue: The position is as I outlined it. Obviously there will be an examination of all the procedures——

Mr. Howlin: Nothing has happened.

[548] Mr. O'Donoghue: ——which might be tightened up to ensure the prospect of this ever happening again would be minimised. Regardless of nominations, the case before the High Court relates to the decisions of Judge Early. They are the matters on which the High Court must decide.

Mr. Stagg: The Minister should answer the question.

Mr. O'Donoghue: Regardless of whether Judge Windle heard these cases, once Judge Early made those decisions they had to be dealt with in the High Court——

Mr. Stagg: Has the Minister done anything about it? He will not give a straight answer.

Mr. Dempsey: Does Deputy Stagg want a copy of the Minister's speech?

Mr. O'Donoghue: ——because of the application by the DPP for an order of mandamus or certiorari.

Mr. Quinn: Do the Garda have a list?

Mr. O'Donoghue: There can be no question but that once the High Court decision has been handed down I will ensure that whatever procedures are required will be put in place.

Mr. Stagg: Do the Garda have a list of the nominated judges?

Mr. O'Donoghue: With regard to Deputy Stagg's question as to whether the Garda have a list of the nominated judges, I have explained the position ad nauseam.

Mr. Howlin: This is like Peter Sellers.

Mr. O'Donoghue: When he was in Government why did the Deputy not give the Garda a list of the judges when they were nominated?

Mr. Stagg: Have the Garda a list?

Mr. Shatter: Has the Minister given the Garda a list since last Thursday?

Mr. O'Donoghue: Of course the Garda have a list. That goes without saying.

Mr. Rabbitte: The Minister got the go ahead for that.

Mr. Higgins (Mayo): Does the Minister realise that to shift the blame from himself he has effectively blamed Judge Windle?

Ms M. McGennis: No, he has not.

Dr. Woods: That is a distortion.

Mr. Higgins (Mayo): Is the Minister in a position to tell the House whether the Department of [549] Justice, Equality and Law Reform was given a list of the nominated judges? That question has been asked on several occasions. The initial blunder was made on Saturday, 22 November when Judge Windle issued a warrant for additional detention that he was not empowered to issue.

A Deputy: Hear, hear.

Mr. Higgins (Mayo): Those people, therefore, were unlawfully in custody. The Minister said on the Monday the Garda and the DPP realised the people were in unlawful detention. If the people were in unlawful detention, why were they not released at that time? How did the Garda and the DPP find this out and why was the Minister not notified?

Mr. O'Donoghue: The circumstances of the release were clearly set out in my contribution and in response to numerous questions put to me. I take great exception to the remarks by Deputy Higgins to the effect that I shifted the blame onto Judge Windle. I have gone to great pains to explain the distinction between the roles of various judges in this matter and that it is not for me to apportion blame. The matter is before the High Court, I cannot and will not say anything which would prejudice those proceedings. I cannot understand why I have been asked the same question over and over again when I have already replied. If the Deputies opposite have run out of ammunition, they should go out and buy some more.

Mr. Stagg: We have not.

Mr. Rabbitte: We have run out of prisoners.

Mr. Higgins (Mayo): How did the Garda find out?