Thread by @drvconway

1. There's been so much conversation over police accountability structures and organisational reform. The publication today of the General Scheme of the Garda Síochána Powers Bill is hugely important. This deals with what gardaí can do day to day.

2. We've been far behind other countries in the extent to which we regulate what the police do. The detail of this Bill is going to be hugely important. It's got 68 heads, covering stop and search, arrest, searches, detention and rights of those in custody. #gardapowers

3. A definition of reasonable suspicion is provided in the definitions section, reflecting current case law. I'm always wary of this term. It's invariably really key for the use of police powers but rarely a tangible thing. I'll keep an eye on how important it is for the bill

4. Up front we have a statement that gardaí must act with due respect for fundamental rights (constitutional + human rights), fairness and non-discrimination, while also acting with 'diligence and determination' in an investigation, and respecting rights of victims + public

5. This is incredibly light in my view. It's encouraging to see it up front but far too much bundled into one provision. It would also be good to see more expansive detail on the rights as they apply to this Act. Human rights demand more legislative attention here #gardapowers

6. Next we have a provision relating to the rights of children (persons under the age of 18). Again, in my view, it's very light. It mention appropriate adults, but doesn't go as far as establishing an appropriate adult scheme such as operates in the UK.

7. Head 8 addresses the needs of those with Impaired Capacity. At last an update on this (the 1987 Regs talk about handicapped persons).

8. But again it's weak. Gives gardaí a huge amount of discretion. Where gardaí know or suspect someone has impaired capacity they will take what steps they deem necessary. No obligation to actively assess. And up to them to decide what's necessary.

9. Head 9 deals with powers to stop and search. The law in this area has been a mess with dozens of different acts given powers. It is all being simplified into one provision here which is a very positive development

10. Gardaí can stop & search with reasonable suspicion that person has in their possession an unlawful object such as stolen goods, illegal drugs, firearms & offensive weapons, syringes & blood containers, objects for theft/fraud offence e.g. crow bar,
computer hacking equipment

11. It's somewhat progressive to see the power boiled down to this one provision. I firmly believe stop and search does more harm than good, so it's good to see that broader grounds like belief that they've committed a crime have been excluded. #gardapowers

12. It recognises that someone is being detained while a stop and search is being conducted. It allows that detention to be for as long as 'reasonably necessary' to conduct the search, and potential in the garda station. Potential for this to be abused, I fear. #gardapowers

13. It would also be good to see some detail on what factors can/can not be borne in mind in forming reasonable suspicion of possession. Very broad and we hear a lot about how current provisions are abused

14. And failing to comply with directions under this Head is an offence. I get the police need for enforcement but this types of provisions always seem extreme to me.

15. There's one further power for stop and search. Where a garda reasonably suspects a serious/terrorist offence has or is being committed, then they can stop vehicles to ascertain if they were involved. No suspicion of the person being stopped needed.

16. Gardaí will be legally required to explain that you are being searched, the reasons for the search and the legal basis for it. A record must also be made and the person is entitled to a copy of that record

17. Importantly it indicates that if the search produces nothing the record will be kept for a period to be clarified in a Code of Practice, and then destroyed. So the fact of previous stops shouldn't show on your pulse record unless they led to something.

18. So the legislation does not require the recording of the ethnicity of the person being stopped. That might come from the Code of Practice but this is very disappointing. This should be a legislative requirement.

19. The Code of Practice for stop and searches will be drafted by the Garda Commissioner. In my view this should be a statutory instrument, not a garda code. It even says that if someone fails to follow the code that won't result in criminal/civil action. Very disappointing.

20. And it won't affect the admissibility of evidence. So if the guards search you in breach of the code what they find can still be used against you in court.

21. @yvonnedaly is this provision on admissibility of evidence even in line with current jurisprudence?

22. Search of premises powers being given to AGS, but also the competition and consumer protection commission, and the office of the director of corporate enforcement, as per the Law Reform Commission proposals.

23. It's going to be possible for search warrants to be issued via a live video link, rather than an in court appearance #gardapowers

24. Under a search warrant a person can be obliged to operate any computer by use of passwords/encryption keys if necessary. And it must be made legibile. the headline this morning was around mobile phones but important to note this power as well.

25. And yes, they clarify that a computer also includes a mobile phone

26. Those whose premises is being searched have right to be shown the warrant, and to be given an inventory of what has been seized. They are also obliged to answer certain questions.

27. Head 19 deals with the seizure of priviledged information - if I'm reading it right, it can be seized and then left for the court to determine whether it's priviledged. I find that pretty worrying - so solicitors notes on a case could be seized? (tell me I'm wrong)

28. How material will be handled after it has been seized is to be dealt with under Codes of Practice. Again, given what's at stake (how your property is handled by police), this needs to be on a statutory footing

29. Head 21 allows a superintendent to issue a search warrant in urgent circumstances. This is disappointing. The Law Reform Commission had been clear that search warrants should always be from courts. Not good enough

(back soon - meeting now)

30. There is going to be a Code of Practice for search warrants too. Another Code drafted by the Commissioner, approved by the Minister but what's in it won't have any legislative status.

31. This code is to be made public, but again, a breach of the code won't affect the admissibility of evidence. As evidence experts like @yvonnedaly will tell you, search warrants have been notoriously problematic for the guards. This blanket statement bothers me.

32. In the explanatory note it says that Codes were a recommendation of the Commission on the Future of Policing. Just to be clear - we did not recommend that these be drafted by the Commissioner and not have statutory footing.

Head 23 moves us on to arrest. Gardaí can arrest anyone they reasonably suspect to be committing an offence. This is huge. Previously it had to be an offence for which you could be imprisoned for 5 years. But now it applies to all offence subject to certain provisos.

34. I really am quite shocked to see such an extensive expansion of the power of arrest without warrant. Has there really been a suggestion that the gardaí have been impeded without this?

35. The common law power of arrest for breach of the peace is being repealed and replaced with a statutory power, that allows for arrest for any breach of the peace. Again very wide.

36. Head 25 provides for citizen arrests. I need to consider further but I suspect more detail would be helpful

37. Head 27 provides for a new caution: You are not obliged to say anything unless you wish to do so, but whatever you do say will be recorded and may be given in evidence.
This is very significant: currently guards have to write down everything said in an interview. This will go

38. It'll speed up interviews significantly, saving gardaí time and reducing the time people should be detained. But it'll make interviews much more fast paced

39. Head 28 deals with right to information on arrest, but limits this to the fact that you are being arrested and why. Again, details to be in Codes of Practice

40. Head 29 addresses the gardaí power to enter a premises to effect an arrest. Nothing here about doing this at reasonable time, where this is possible (which is included for search warrants)

41. The gaurds are also being given a very broad power of seizure of items in your possession on arrest - anything that could harm another. Question whether it's justifiable

42. A Code of Practice on arrest, written by Commissioner, approved by Minister. The Department seems to have really latched on to this idea but it's not good enough. There's a lot more detail than is in this bill that needs to be on a statutory footing.

43. For instance, the Code on Arrest is where the safeguards for children and vulnerable persons will be located. They need to be on a statutory footing.

44. Members in Charge to be renamed Custody Officers. Very disappointingly there is no requirement that the person fulfilling this role be of a certain rank. This was asked of by Justice Morris 15 years ago. It can be a civilian and it can be someone involved in the investigation

45. The role of custody officer is absolutely essential in the protection of rights in custody and there is very little in this bill on that role. Needs to be fleshed out a great deal more.

46. Head 38 sets out the right to information on arrest, and what specifics the custody officer must provide. Gonna take some detailed analysis to see if it's thorough and complete (@BinchyShalom @charliesboots @michaelfinucane might be able to help with that)

47. There is insane detail on rest periods and when the gardaí are permitted to interview you at night. It's really stark the level of detail here compared to other places where this would be good (like the role of custody officer, how they are appointed, training, duties etc)

48. Head 40 deals with medical attention and only requires it to be sought where the garda thinks its necessary - not a solicitor, or a parent/guardian. Again v scant on detail on an aspect that has been severly criticised before

49. What we really want to see are the development of custody suites that have health and mental health workers in situ. But no, nothing of that sort indicated here. Maybe it's not for legislation but it needs to be addressed.

50. Really excellent to see it stated in legislation that your solicitor can attend the interview. This is huge progress. But there is nothing in the bill on how lawyers are contacted. @yvonnedaly and I have an article coming out on how the current systems are failing on this

51. Spoke too soon! Having a lawyer in the interview is not guaranteed. An inspector can prevent their attendance if it would prejudice any investigation or criminal proceedings regarding the offence, or, owing to the behaviour of the person, would be unduly disruptive

52. This is far too subjective. Surely far too easy to say that a solicitor who is advising no comment is prejudicing an investigation? And the behaviour point?

53. And your consultations with your solicitor, which are supposed to be in private, can be in the sight of the gardaí. There is no justification for this. That's not privacy.

(ya, I'm getting annoyed now. This is an opportunity to do so much good and this bill does not do that)

54. Head 43 says that a person under 18 can waive their right to a lawyer. I'm pretty sure that @Ukilkelly and @LouiseForde recommended this shouldn't be possible? All kinds of wrong factors could be taken into account in those circumstances

55. Head 43 also permits questioning to proceed before someone has managed to consult with a lawyer in certain circumstances and when authorised by an inspector. This is, by my reading, in direct conflict with Supreme Court jurisprudence.

56. There's codification of the times for which you can be detained. For detentions past 72 hours an application has to be made to the court. This used to be a Chief Super that applied, now it's a Super.

57. And there's a lot of detail about how those hearings can be conducted - like "in the public interest, the particular evidence shall be given in the absence of every
person, including the person to whom the application relates and any legal representative"

58. any period in which a person is taken to court to contest the lawfulness of his or her arrest shall not be counted in calculating the period of detention
permitted. - but they are not free to leave?

59. There's detail about when the gardaí can take photos, finger and palm prints, and how they can use reasonable force to do so. Nothing about destruction of these at any point

60. Provides for a custody record and states it can be kept in electronic or written form. We need to go electronic on this. there is no way to analyse the data in these while they are on paper. For instance we do not know how many people the gardaí detain annually.

61. Sets out what should be in the custody record. This needs to be more specific. In particular it should require a risk assessment be conducted on arrival and departure at a garda station. We've covered this on @PolicedPodcast

62. The custody record should also be recording ethnicity, so that we can analyse any issues of racism and discrimination in who is arrested and how they are treated. (@drlucymichael @shaneocurry )

63. Head 60 covers electronic recording of interviews, and says if it can't be recorded or the equipment fails then a written record will suffice. In this day and age we should be past that. ALL interviews should be required to be recorded.

64. Head 61 provides for a supplementary note of interview, which seems like a summary, including any admissions. The justification is that it will help the DPP in deciding whether there is sufficient evidence to prosecute. So DPP's office won't be reading transcripts?

65. Another Code of Practice for regulations around detention. Again, needs to be on a statutory footing. We really can't keep saying that a failure to observe a code won't affect the admissibility of evidence. That's just not acceptable.

66. Head 65 covers garda use of force. Again its flimsy and we get things like - If the member believes it is necessary to use force likely to cause serious harm to a person or the person’s death, the member must, if practicable, first call on the person to stop doing the
act.

67. We need to a lot more detail in legislation about when the gardaí can use lethal force, and the factors to be taken into account

68. Not a fan of this either - For the purposes of this section the question as to whether an arrest was lawful under this
Bill or whether paragraph (a) or (b) applies shall be determined according to the circumstances
as the person using the force believed them to be.

69. This may be the opportunity to update this, no?
"thereafter the Police (Property) Act 1897 shall apply"

70. Provides for the seizing and retaining of communications between a client and a lawyer where a garda has reasonable grounds for believing that the communication was not made solely for legal advice.

71. If you obstruct the gardaí in doing anything under the Bill it's an offence, with 12 months on summary conviction or 5 years on indictment.

72. Wow, amazing catch all at the end that if the gardaí fail to comply with the Bill it won't affect the admissibility of evidence. I'm not sure that's legal. But also- you breach this act, 5 years in prison. They breach the act, evidence still admitted.

That's a first run through. It'll take time to work through the details, and understand the impact of the Schedules/Repeals etc. It'll also take time to think of what's not covered

But my first impression is that for those who believe the gardaí should have more powers this is a good piece of legislation. I'm very concerned by some of the expansions of powers and the lack of detail on safeguards. #gardapowers

Also, slightly contrary to how it was reported today the gardaí are not being given a blanket power to access your phones/computers, forcing you to provide passwords. This only arises where the gardai have a search warrant.

Not saying it should happen then, just that it's not quite as broad as may have been interpreted.

I would also make the point that this Bill comes alongside the Policing, Security and Community Safety Bill which I have argued presents something of a backward step in garda oversight. So we're expanding police powers, not putting in the right safeguards and weakening oversight

This Bill really should be the equivalent of the Police and Criminal Evidence Act from the UK. So I'm now going through that a creating a list of things that are absent from the Irish bill. It's as inspiring as you'd imagine legislation.gov.uk/ukpga/1984/60/…