Barry Andrews (Dún Laoghaire, Fianna Fail)

I refer to the Morris tribunal. The judge is fearless and his report points up serious misdemeanours on the part of gardaí in Donegal. Perhaps the time has come to consider that the circumstances are exceptional enough to sanction legal aid for the McBrearty family because, clearly, the tribunal would benefit from proper legal analysis of the issues facing Frank McBrearty and his family.

However, I am concerned when everybody criticises the Garda because it is an exceptional public agency and morale is key to the proper discharge of its functions. Gardaí put themselves in harm's way to protect the public and their work is associated with constant danger. They put their lives at risk at times and it should be borne in mind that, while their behaviour should be analysed and scrutinised with due rigour, the Garda is a different public agency and its work is different from anything else.

When I contributed previously to the debate on this legislation, I raised concerns about Part 3. I refer to the issue of anti-social behaviour orders, which are the subject of wide debate. They are good in theory and I support the inclusion of such orders in the legislation, which the Minister stated he would address later by way of amendment. However, a clear and simple definition of "anti-social behaviour" must be provided and obvious dangers must be avoided such as creating a charter for bullies in local communities. People forget that the Minister has proposed the equivalent of a yellow card for offenders so that they know if they reoffend, they face the possibility of criminal sanction but if they do not, there is no danger of them being criminalised. People have the will, volition and capacity to change their behaviour and the intention of a punishment, sanction or penalty is to change a person's behaviour.

Some of the opposition to the ASBOs, particularly where children are concerned, is fair but some is unreasonable. A recent editorial in Hot Press compared ASBOs to kneecapping by provisional republicans. It said it was a State version of such street thuggery because the Garda would act as judge, jury and executioner. That is way over the top and that analysis is hardly worthy of comment, except that Hot Press goes into detail about its concerns about ASBOs.

I agree with the need to review whether such orders should apply to children. Much has been said about the non-implementation of parts of the Children Act 2001, which is a concern for everybody. For example, the power of a court to bind parents to the peace has not been provided. That has been raised by many members of the public. The Act also provides for a parental supervision order to be imposed by a court but that has not been implemented. This would require parents to engage in parenting courses and courses to deal with addictions. Such orders would address concerns being expressed by the public without going down the road of using ASBOs for children.

Restriction of movement orders were also provided under the Children Act 2001 but they have not been implemented. These would allow a court to restrict the movement of a child through a curfew if he or she has committed an offence. If these provisions were implemented, people's concerns would be reduced. Until the Children Act 2001 is fully implemented, the further criminalisation of children should be avoided. I do not support ASBOs for children but if they are introduced for them, they should only be used as a last resort.

Many members have commented on the success of juvenile liaison officers throughout the system. Community service orders should also be considered for 16 and 17 years olds. They are provided for in legislation but they have not been implemented. The Criminal Justice (Public Order) Act 1994 identifies offensive conduct and threatening behaviour as a crime. In addition, when a person is brought before the District Court, he or she can be found guilty of an offence but the judge can exercise discretion to impose the Probation Act, which means no criminal offence has been recorded but if a further offence is committed within a certain period, the offender faces criminal sanction. This is a "yellow card" procedure in existing legislation. To think we are dealing with an empty canvas would be wrong.

Regarding Part II of the Bill, the issue of a DNA database was discussed at a conference hosted last week by the Director of Public Prosecutions. Such a database is not included in this Bill but the Minister said on Second Stage that he hoped the Law Reform Commission would table proposals on the matter. I agree with this suggestion absolutely. I attended a lecture approximately ten years ago by the famous defence lawyer, Mr. Barry Sheck, who defended OJ Simpson. He described how a DNA database is of benefit to not only prosecution lawyers but also defence lawyers. I would welcome such a database. A forensic scientist in the UK commented that, so successful has such a database been in Scotland, police there cannot remember what it was like trying to prosecute and resolve investigations without one.

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