S.I. No. 74/1997:

CRIMINAL JUSTICE ACT, 1984 (ELECTRONIC RECORDING OF INTERVIEWS) REGULATIONS, 1997.

CRIMINAL JUSTICE ACT, 1984 (ELECTRONIC RECORDING OF INTERVIEWS) REGULATIONS, 1997.

I, NORA OWEN, Minister for Justice, in exercise of the powers conferred on me by section 27 of the Criminal Justice Act, 1984 (No. 22 of 1984), hereby make the following Regulations:

1. (1) These Regulations may be cited as the Criminal Justice Act, 1984 (Electronic Recording of Interviews) Regulations, 1997.

(2) These Regulations shall come into operation on the 1st day of March, 1997.

2. (1) In these Regulations, unless the context otherwise requires--

"the Act of 1939" means the Offences Against the State Act, 1939 (No. 13 of 1939);

"the Act of 1984" means the Criminal Justice Act, 1984 (No. 22 of 1984);

"the Act of 1996" means the Criminal Justice (Drug Trafficking) Act, 1996 (No. 29 of 1996);

"custody record" means a record kept under regulation 6 of the Custody Regulations;

"the Custody Regulations" means the Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations, 1987 ( S.I. No. 119 of 1987 );

"electronic recording" includes--

( a ) a record of an oral communication made on tape, and

( b ) a record, made on tape, of a series of visual images appearing as a moving picture whether or not including an accompanying soundtrack;

"equipment" means electronic recording equipment that has been provided to and installed in Garda Síochána stations for the purpose of recording interviews to which these Regulations apply;

"master tape" means the tape of an interview to which these Regulations apply on which the interview is recorded and which is sealed in accordance with these Regulations before it leaves the presence of the person being interviewed and is any one of the tapes used in the equipment;

"member" means a member of the Garda Síochána:

"member in charge" has the meaning assigned to it by regulation 4 of the Custody Regulations;

"station" means a Garda Síochána station to which these Regulations apply;

"tape" means any magnetic tape or other recording medium on which an electronic recording may be made or copied:

"working copy" means any tape, that is not the master tape, used in the equipment.

(2) Where provision is made in these Regulations for any matter to be recorded, then such matter shall be recorded--

( a ) on the tapes of the interview that is being recorded, or

( b ) in writing in the custody record of the person being interviewed where, because of the circumstances, recording on those tapes is not practicable.

(3) In these Regulations unless otherwise indicated--

( a ) a reference to a regulation is to a regulation of these Regulations, and

( b ) a reference to a paragraph or subparagraph is to the paragraph or subparagraph in which the reference occurs.

(4) A work or expression used in these Regulations and also used in the custody Regulations has, unless the context otherwise requires, the same meaning in these Regulations as in the custody Regulations.

3. (1) These Regulations shall apply to stations where the equipment has been provided and installed.

(2) These Regulations shall apply to interviews, including the taking and reading back of statements, that take place in a station with persons who have been detained under--

( a ) section 4 of the Act of 1984, or

( b ) section 30 of the Act of 1939, or

( c ) section 2 of the Act of 1996, or

( d ) section 2 of the Act of 1996 as modified by section 4 (3) of that Act.

4. (1) Subject to paragraph (3), interviews with persons to whom these Regulations apply shall be electronically recorded.

(2) The equipment used in a station shall be the equipment provided to and installed at the station for that purpose and no other equipment shall be used.

(3) An interview or part of an interview is not required to be electronically recorded:

( a ) where--

(i) the equipment is unavailable due to a functional fault, or

(ii) the equipment is already in use at the time the interview is to commence, and the member in charge considers on reasonable grounds that the interview should not be delayed until the fault is rectified or the equipment becomes available;

or

( b ) where otherwise the electronic recording of the interview is not practicable.

(4) Where an interview or part of an interview is not recorded for any of the reasons referred to in paragraph (3), the member in charge shall enter or cause to be entered in the custody record of the person to be interviewed a note setting out the fact that the interview was not electronically recorded and the reason.

(5) Notwithstanding that an interview is electronically recorded in accordance with these Regulations, regulation 12 (11) (b) (i), (ii) and (iii) of the Custody Regulations shall apply as if the interview were not electronically recorded.

5. (1) The member in charge shall, before an interview is commenced, in addition to the information to be provided pursuant to regulation 8 of the Custody Regulations, inform or cause to be informed, orally and in ordinary language, the person to be interviewed that--

( a ) the interview with him or her may be electronically recorded, and

( b ) where that interview is electronically recorded he or she is entitled to receive a notice as to what is to happen to the tapes of that interview.

(2) The member in charge shall give or cause to be given to the person the notice referred to in paragraph (1) (b).

6. (1) The member conducting an interview to which these Regulations apply shall, before commencing the electronic recording of the interview, and in the sight of the person to be interviewed--

( a ) unwrap the required number of unused blank tapes.

( b ) load the equipment with the tapes, and

( c ) set the equipment to record.

(2) While the equipment is recording, the member conducting the interview shall--

( a ) caution the person being interviewed in the following terms:

"You are not obliged to say anything unless you wish to do so but whatever you say will be taken down in writing and may be given in evidence. As you are aware this interview is being taped and the tape may be used in evidence",

and,

( b ) state all of the following:

(i) the name and rank of that member and the name and rank of any other member or members then present;

(ii) the name and status of any other person present;

(iii) the name of the person being interviewed;

(iv) the date, time of commencement of the recording and the location of the station; and

(v) that the person being interviewed has been given a notice pursuant to regulation 5 (2).

7. The electronic recording or an interview may be interrupted--

( a ) where a tape requires to be replaced with a further unused blank tape,

( b ) where the equipment requires attention in order for the electronic recording of the interview to continue,

( c ) where a break is to be taken in the interview, or

( d ) where a person being interviewed objects, at any time after the procedures specified in regulation 6 have been completed, to the electronic recording of the interview.

8. (1) Where the electronic recording of an interview is or is proposed to be interrupted for the reason referred to in regulation 7 (a), the member conducting the interview shall--

( a ) subject to paragraph (3), when the equipment indicates that a tape has only a short time left to record, inform the person being interviewed that the tape is coming to an end and record the time and reason for the interruption.

( b ) switch off the equipment,

( c ) remove the tapes,

( d ) seal one of the tapes with a master tape label and give it an identification number,

( e ) sign the master tape label and ask the person being interviewed to sign it also, and

( f ) before recommencing the interview, follow the procedure specified in regulation 6 (1) and remind the person being interviewed that he or she has been cautioned.

(2) If the person being interviewed refuses to sign the master tape label, the member in charge shall be called to the interview room and be asked to sign it.

(3) Where the application of the procedure specified in paragraph (1) (a) is not practicable, the member conducting the interview shall, before recommencing that interview--

( a ) follow the procedure specified in regulation 6 (1),

( b ) remind the person being interviewed that he or she has been cautioned, and

( c ) record--

(i) the reason for the interruption,

(ii) the duration of the interruption, and

(iii) the time at which the interview recommenced.

9. (1) Where the electronic recording of an interview is interrupted for the reason referred to in regulation 7 (b), the member conducting the interview shall--

( a ) subject to paragraph (3), record on the tape the time and the reason for the interruption, if practicable,

( b ) switch off the equipment if it is still recording,

( c ) remove the tapes,

( d ) seal one of the tapes with a master tape label and give it an identification number,

( e ) sign the master tape label and ask the person being interviewed to sign it also, and

( f ) before recommencing the interview, follow the procedure specified in regulation 6 (1) and remind the person being interviewed that he or she has been cautioned.

(2) If the person being interviewed refuses to sign the master tape label, the member in charge shall be called to the interview room and be asked to sign it.

(3) Where the application of the procedure specified in paragraph (1) (a) is not practicable, the member conducting the interview shall, before recommencing that interview--

( a ) follow the procedure specified in regulation 6 (1),

( b ) remind the person being interviewed that he or she has been cautioned, and

( c ) record--

(i) the reason for the interruption,

(ii) the duration of the interruption, and

(iii) the time at which the interview recommenced.

(4) Where the application of the procedure specified in paragraph (1) (a) is not practicable, and it is not practicable to recommence the electronic recording of the interview in accordance with paragraph (3), the member conducting the interview--

( a ) shall cause to be entered in the custody record of the person being interviewed, a note setting out the reason for the interruption of that interview and as to why those procedures are not practicable, and

( b ) may proceed with the interview without the electronic recording thereof.

10. (1) Where the electronic recording of an interview is or is proposed to be interrupted for the reason referred to in regulation 7 (c) and the person being interviewed is to vacate the interview room, the member conducting the interview shall--

( a ) record that a break is to be taken and the reason for the break,

( b ) record the time,

( c ) switch off the equipment,

( d ) remove the tapes,

( e ) seal one of the tapes with a master tape label and give it an identification number,

( f ) sign the master tape label and ask the person interviewed to sign it also, and

(g) before recommencing the interview, follow the procedure specified in regulation 6 (1) and remind the person being interviewed that he or she has been cautioned.

(2) If the person being interviewed refuses to sign the master tape label, the member in charge shall be called to the interview room and be asked to sign it.

(3) Where the member conducting the interview and the person being interviewed are to remain in the interview room during the break, the member shall--

( a ) record that a break is to be taken and the reason for the break,

( b ) record the time, and

( c ) switch off the equipment,

and the member conducting the interview shall, before recommencing that interview--

(i) set the equipment to record,

(ii) remind the person being interviewed that he or she has been cautioned, and

(iii) record the time at which the interview recommenced.

11. (1) Where the electronic recording of an interview is discontinued for the reason referred to in regulation 7 (d), the member conducting the interview shall--

( a ) subject to paragraph (3), record the time and the reason for the discontinuance,

( b ) switch off the equipment if it is still recording,

( c ) remove the tapes,

( d ) seal one of the tapes with a master tape label and give it an identification number, and

( e ) sign the master tape label and ask the person being interviewed to sign it also.

(2) If the person being interviewed refuses to sign the master tape label, the member in charge shall be called to the interview room and be asked to sign it.

(3) Notwithstanding paragraphs (1) and (2) and regulation 7 (d), the member conducting an interview may, as he or she sees fit, continue the electronic recording of the interview.

12. (1) At the conclusion of the interview, the member conducting that interview shall--

( a ) enquire of the person interviewed if there is anything further he or she wishes to say or to clarify,

( b ) read back any notes and memoranda taken in that interview and enquire of the person interviewed if he or she wishes to make any alterations or additions,

( c ) record the time,

( d ) switch off the equipment,

( e ) remove the tapes,

( f ) seal one of the tapes with a master tape label and give it an identification number, and

( g ) sign the master tape label and ask the person interviewed to sign it also.

(2) If the person interviewed refuses or is unable to sign the master tape label, the member in charge shall be called to the interview room and be asked to sign it.

13. The member who conducted an interview to which these Regulations apply shall as soon as practicable after the conclusion of the interview give the sealed master tape to the member in charge who shall enter or cause to be entered in the custody record of the person interviewed a note of the following:

( a ) that the interview has taken place;

( b ) the date of the interview;

( c ) that he or she has received the master tape;

( d ) the date and time of receipt of that tape, and

( e ) the identification number of that tape.

14. (1) A person interviewed pursuant to these Regulations may apply, to the Superintendent of the District in which the interview took place, after the expiration of six months from the date of that interview, for the destruction of the master tape and any working copies of that interview in the possession of the Garda Síochána and those tapes shall be destroyed as provided by this Regulation where--

( a ) proceedings for an offence in respect of which those tapes may be used in evidence are not instituted against the person interviewed within the period of six months from the date of that interview and the failure to institute such proceedings within that period is not due to the fact that he or she has absconded or cannot be found, or

( b ) such proceedings have been so instituted within that period and the person interviewed is acquitted or discharged or those proceedings are discontinued.

(2) The person interviewed, his or her legal representative or some other person authorised by him or her in writing to act on his or her behalf shall be entitled, on request, to witness the destruction of the tapes.

(3) Destruction of the tapes shall be carried out by the effective removal of the electronic recording on those tapes.

(4) Where civil proceedings are instituted, before a particular tape in respect of which a request has been made for its destruction under this regulation is destroyed, and a party to the proceedings serves notice on the Commissioner of the Garda Síochána that the tape may be required in connection with the proceedings, then, notwithstanding anything in this regulation, that tape shall be preserved until six months from the conclusion of the proceedings or until the conclusion of any proceedings on appeal, whichever is the later.

(5) Notwithstanding paragraph (1), the Superintendent of the District in which the interview took place may authorise the preservation of a tape, in respect of which a request has been made for its destruction, for a further period not exceeding six months on being satisfied that it may be required for the purpose of proceedings, including further proceedings, in relation to an offence referred to in paragraph (1) (a).

15. (1) The seal on the master tape shall not be broken by any person except--

( a ) at the request, in writing, of the person interviewed or his or her legal representative,

( b ) pursuant to a direction given by a court,

( c ) pursuant to a direction given by the Garda Síochána Complaints Board, or

( d ) a member not below the rank of chief superintendent in the case of disciplinary proceedings.

(2) ( a ) Whenever the seal on a master tape is to be broken pursuant to paragraph (1), either the person interviewed or his or her legal representative, or both that person and his or her representative, shall be given the opportunity to be present when that seal is broken and throughout the period when the master tape remains unsealed.

( b ) If the person interviewed and his or her legal representative are not present, the seal shall be broken by a member in the presence of a member not below the rank of superintendent.

(3) ( a ) The master tape shall then be resealed with a master tape label by the member in charge and either the person interviewed or his or her legal representative, or both that person and his or her representative, shall be invited to sign the master tape label when that tape is resealed.

( b ) If the person interviewed, or his or her legal representative, refuses to sign the master tape label, when that tape is resealed, the master tape label shall be signed by a member not below the rank of superintendent.

16. A working copy shall be provided to the person interviewed or to his or her legal representative on receipt of a request in writing, from that person or his or her representative, to the Superintendent of the District in which the interview took place, unless that Superintendent believes, on reasonable grounds, that to do so would prejudice an ongoing investigation or endanger the safety, security and well being of another person.

17. A tape of an interview that has been electronically recorded shall not be made available for the purposes of--

( a ) producing a photograph, or

(b) otherwise for the identification.

of the person interviewed except with the written consent of that person.

GIVEN under my Official Seal, this 11th day of February, 1997.

NORA OWEN,

Minister for Justice.

EXPLANATORY NOTE.

The Regulations provide for the electronic recording of interviews with suspects detained under section 4 of the Criminal Justice Act, 1984 , section 30 of the Offences Against the State Act, 1939 , section 2 of the Criminal Justice (Drug Trafficking) Act, 1996 , or section 2 of that Act as modified by section 4 (3), in Garda stations where equipment has been provided and installed for this purpose.