Proposals on the right to silence are likely to attract most attention, but there is a great deal more in the report of the expert group appointed by the Minister for Justice to advise on changes in the criminal law.
The report's recommendations propose significant changes on the issuing of search warrants. It says video-recording of Garda interviews with suspects should be considered as an in-built safeguard in the criminal justice system.
The group was set up in May to consider criminal law changes recommended by the Garda Strategic Management Initiative report published last November. It was chaired by a leading criminal lawyer, Mr Eamonn Leahy SC.
Other members were Mr Richard Barrett from the Attorney General's Office; Garda Deputy Commissioner, Mr Noel Conroy; Mr Simon O'Leary, Deputy Director of Public Prosecutions; Mr Michael Flahive from the Department of Justice; Ms Mary Devins, a solicitor; and Mr Martin Power, also from the Department of Justice.
The report sees no reason why curbing the right to silence should not be extended to all serious offences, since such a provision applies in drug-trafficking cases and given the existing safeguards.
It says Section 7 of the Criminal Justice (Drug Trafficking) Act, 1996, introduced after the murder of the journalist Veronica Guerin, provides that where a defendant relies on a fact in his defence, which he could reasonably have been expected to mention during Garda questioning or on being charged, a court may draw an adverse inference from failure to state it.
"In our view, such an extension of Section 7 would be worthwhile," the report says.
The group says it was conscious throughout of the need to balance additional powers on curbing the right to silence with appropriate safeguards.
In line with the drug-trafficking law, it proposes that the new provision should not apply unless the suspect is "told in ordinary language what the effect of failure to mention a fact might be".
The report says that, of course, there may be reasons for an accused person's silence during questioning - shock or embarrassment at revealing the truth - which are consistent with innocence.
That is why the provision permits only such inferences as appear proper to be drawn and provides that a jury is subject to the judge's direction on the matter. A further safeguard is that such an inference would only be corroborative and could not of itself support a conviction.
The report says it would be wrong in principle that adverse inferences could be drawn from silence unrelated to suspicious circumstances, and it concludes that there should be no change in existing measures under the 1984 Criminal Justice Act.
Positive consideration should be given to the introduction of video-recording of interviews in Garda custody. Where this is not possible, or in certain cases desirable, the Government should consider allowing the suspect the right to have his or her solicitor present during questioning.
According to the report, certain anomalies which exist in relation to detention should be removed as far as possible since they inhibit the proper investigation of serious offences. A person suspected of murder can normally be detained for only 12 hours under the 1984 Criminal Justice Act but, if the murder weapon is a firearm, the suspect can be held for up to 48 hours under the Offences Against the State Act, 1939. "It is difficult to justify this disparity in treatment," the report states.
The expert group agrees with the concept that the power to arrest without warrant be exercised in relation to serious offences, crimes punishable by five years or more in prison. This power has, with one exception, been provided for in the Criminal Law Act, 1997. The exception relates to offences punishable under common law, but, the report says, this can be removed by a straightforward amendment of the Act.
The report argues that provision should also be made to allow significant Garda search powers to be extended to "all serious offences".
It suggests that, where a District Court judge cannot be found to issue a search warrant, a Garda not below the rank of superintendent should be able to do so instead if there is a danger of any delay hampering the investigation.
The Criminal Justice (Miscellaneous Provisions) Act, 1997, already allows a judge of the District Court to issue a warrant authorising a garda to search a place for evidence of certain offences. But the law only applies to a limited number of indictable offences involving death, rape and other sexual offences, serious bodily injury and false imprisonment. The report contends that the relevant Section 10 of the Act should now be applied to all serious offences.
In its recommendation dealing with fingerprinting, photo graphing suspects and forensic evidence, the report says it would be useful to make clear that, where consent is not required in the taking of non-intimate samples, "reasonable force may be used by the gardai if necessary".
But the group has reservations about making it an offence to refuse to permit the taking of an "intimate sample" such as blood, urine, saliva, a swab or pubic hair. But there is scope for reclassifying saliva as a non-intimate sample, it says. Current technology permits a complete DNA profile to be established from saliva.
It would be "useful" if gardai were permitted to photograph every person arrested so as to have a reliable means of identification. At present, gardai have the authority to photograph those detained, but not persons arrested, released and dealt with by way of summons. Meanwhile, the existing period of six months - unless proceedings go ahead - allowed for retaining photographs, prints and forensic samples should be extended to 12 months.
The report judges the nature of the identification parade, which requires the complete co-operation of everyone involved, to be peculiarly open to frustration by an unwilling participant. But it would not favour the creation of an offence for refusing or failing to take part in an identification parade.
"It seems to us that the further one might go, although it would be far from free of difficulty, would be to provide for adverse inferences to be drawn, where proper, from the refusal or failure of an accused, without reasonable excuse, to take part in an identification parade," the report states.
According to the report, legislation should also be introduced for the exclusion of individuals from a crime scene "for a reasonable length of time" to allow proper investigations and examinations to take place. A garda should be able to arrest, without warrant, anybody attempting to obstruct a member of the force in this area or failing to comply with the prohibition. Anyone found guilty of the offence should face a £1,500 fine or up to six months in prison.
The group suggests an "absolute limit" of 12 hours should be put on any exclusion time, unless there is judicial authority for its extension. Such an extension should be made to a judge by a senior garda and the judge should be satisfied that not only is the extension necessary, but the inquiry "is being conducted diligently and expeditiously".