Radical changes in the criminal law, including new restrictions on the right to silence and an extension of Garda search powers, are expected to be brought to Cabinet by the Minister for Justice shortly. Mr O'Donoghue's proposals stem from a report by an expert group appointed by him last May.
Curbing the right to silence for all offences liable to a prison sentence of five years or more is one of the main proposals in the group's report which has yet to be published.
The group, chaired by a leading criminal lawyer, Mr Eamonn Leahy SC, was appointed to consider changes in the criminal law recommended in the Garda Strategic Management Initiative (SMI) report. It is understood that Mr O'Donoghue, has already decided to accept the thrust of the 60-page report, which makes recommendations covering a wide body of criminal law. It says positive consideration should be given to introducing video-recording of interviews with people in Garda custody. If this is not possible, consideration should be given to allowing a suspect to have a solicitor present during questioning, it says.
The proposals to change the right to silence are expected to provoke the strongest public reaction. The expert group says an extension of Section 7 of the Criminal Justice (Drug Trafficking) Act 1996, would be "worthwhile". This section allows adverse reference to be drawn from an accused's failure to mention during Garda questioning, a fact that he later relies on in his defence.
The report also urges the removal of anomalies which it claims exist in relation to the detention of a suspect.
It says it is reasonable to detain a person suspected of a serious crime for 24 hours, a period that could be extended for a further 24 hours on Garda authority.
The group suggests an extension of the power to arrest without a warrant, to be exercised in relation to serious offences which it defines as punishable by five years or more in prison.
In addition, it proposes extending Garda search powers. Where a District Judge cannot be found to issue a search warrant, a garda at or above the rank of superintendent should be allowed to do so if there is a danger of a delay hampering an investigation.
The report proposes changes in relation to finger-printing, photographing of suspects, and forensic evidence. In the case of procuring non-intimate samples from suspects, the group says it would be useful to make it clear that where consent is not required, gardai would be entitled to use "reasonable force" if necessary.
According to the report, legislation should be introduced for the exclusion of persons from a crime scene "for a reasonable length of time". A garda should be able to arrest, without warrant, anybody attempting to obstruct a garda in this area or failing to comply with the prohibition. Sources last night said that, given the expansive nature of the recommendations, changes to several Acts might need to be drafted.
The six-strong expert group was asked to consider the changes in the criminal law proposed in the SMI document, with particular reference to constitutional implications and the European Convention on Human Rights. After nine meetings, it produced its report which has now been considered by the Minister and his officials.
The group was also mandated to have regard to the traditional balance between the needs of gardai and the rights of the individual in Irish criminal law.
In addition to recommending legislative change, the report outlines the shape that future provisions might take. However, the document states any proposals would be subject to the advice of the Attorney General.