The powers that the police have in any society are a marker of democracy. Too little power inhibits the investigation of offences and simultaneously, as history has shown, pushes police to use unacceptable policing methods, with the ends used to justify the means.
Too much power discounts civil liberties and human rights, and destroys the relationship between society and the police.
A balance must be struck, giving the police enough power, but not too much, with effective safeguards for each power. The police bring the resources of the state to bear on suspects, who are not yet proven to have committed any crime.
In the face of that, everyone is vulnerable and needs safeguards to ensure that their rights are protected. Layer on top of this the fact that the majority of people arrested by police are inherently vulnerable (for want of a better word) through mental illness, addiction, learning difficulties, age and so on, all of which impair their ability to assert their rights.
In this context, the regulation of police powers, with legally enforceable statements as to what is and is not permitted, as well as clear delineation of the equally enforceable safeguards in place, is essential in a democracy.
Ireland has been weak on this front.
Garda powers are piecemeal, spread across dozens of acts, making comprehension difficult.
Our safeguards are worse. The regulations that cover how people in custody are to be treated date from 1987 and still refer to 'handicapped' people. They are sparse and out of touch with current understanding of human behaviour.
Legislation that consolidates, codifies, clarifies and expands on both Garda powers and safeguards is essential. We need these things set out in law, very clearly, giving gardaí the powers they require, while ensuring that we are protecting people’s rights effectively.
The new Garda Síochána (Powers) Bill is an opportunity to ensure the gardaí have the powers they need and that everyone in society has access to the necessary protections and safeguards, a long-awaited opportunity.
It was recommended by the Commission on the Future of Policing, which stated that, in order to ensure the legitimacy of policing and the protection of the rights of all, “there needs to be clarity and transparency about police powers and codes of practice as to how to exercise those powers. This should be based in legislation.”
We have been presented with the heads of such a bill, which codifies gardaí use of powers of stop and search, arrest, searches and seizures, and detention.
There are some very positive developments in the bill. It clarifies the law on stop and search: what was found in provisions in over a dozen obscured pieces of legislation is now reduced to two clear powers to stop and search.
Stop and search is hugely controversial as the impact on community relations severely counters the minimal policing benefit. Very small numbers of stops and searches lead to any arrests. So it is positive that a relatively strict line is being taken on when they can occur — mostly where there is reasonable grounds for believing someone has possession of prohibited items. There are serious questions about what constitutes such an item, but the premise is positive.
Other positive developments in the bill include records being made of stops and searches, recognition of impaired capacity as an issue to be safeguarded, and a legislative provision for lawyers to attend garda interviews for the first time ever. This is a hugely significant development.
Further, the Garda caution is being amended. Previously everything that was said in a garda interview had to be handwritten, despite video recording. This will no longer be required, speeding up interviews and saving gardaí, lawyers’ and interpreters’ time, but it should also reduce the length of time that someone spends in Garda custody.
Some garda powers are being significantly expanded: much was made in initial commentary about the ability, when searching a premises under warrant, to demand passwords and encryption keys to access data on phones and computers.
Further, the power of arrest without charge is being expanded very significantly. It is not clear where the demand for this emerges from.
There are expanded powers on what can be seized from you if you are arrested and breaching any of the provisions of the bill is an offence, which in itself is a significant power. Certain detentions are being lengthened.
However, my greatest concern is the paucity of safeguards. In relation to stop and search, there is no statement that gardaí cannot remove clothing in public, nor does it require the recording of the ethnicity of the person stopped.
Stops and searches are globally used in racist, gendered and class-based ways. Black people in England and Wales are nine times more likely to be stopped. It is imperative that legislation requires the recording of this data so that we know exactly how this is experienced in Ireland and can start to combat it.
Provision is made for solicitors attending interviews but, in certain circumstances, interviews can proceed without even a consultation and, if the gardaí believe the solicitor is prejudicing the interview or they are unhappy with their behaviour, a solicitor can be removed.
They should be replaced but, mid-interview, that generates all kinds of problems. Under European law, we have a right to a lawyer in interview and it is not for gardaí to say they dislike their behaviour. Contrary to recommendations in recently published research, children will be able to waive their right to a lawyer.
Very worrying is that substantial detail on the safeguards is being left to codes of practice, including the safeguards for children and vulnerable persons, how seized property will be treated and how lawyers will be selected for attendance at Garda stations.
As detailed in the bill, these codes will not have a statutory footing, meaning they are not legally enforceable. This undermines the effectiveness of these safeguards.
The provisions around the impact of police breaches of the bill on the admissibility of evidence are not sufficiently rights based.
There is an opportunity here to create legislation that is based in the reality of modern policing. Head 6 requires gardaí to act in accordance with constitutional and human rights, principles of fairness and non-discrimination, the rights of victims and society as a whole.
If we are to be realistic about what gardaí do and who they interact with, a requirement that they operate from a trauma-informed approach must also be included.
This bill provides an opportunity to enhance policing and confidence in policing. We need to take that more seriously.
- Dr Vicky Conway is associate professor of law at Dublin City University and host of the podcast.