Dáil debates

Tuesday, 28 March 2006

Criminal Justice Bill 2004: Motion.

 

5:00 pm

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)

While the Fine Gael leader is fond of referring to the number of crimes committed in recent years, he may be interested to note that during the two year term of the rainbow Government there were 102,484 headline crimes recorded in 1995 and a further 100,785 headline crimes recorded in 1996. Despite the fact that there were 600,000 less people living in Ireland and despite the fact that the more accurate PULSE system for recording crime was not in operation at the time, the number of headline crimes was heading for well over 500,000 if the rainbow Government had remained in office for five years.

The Bill, as initiated, was debated at length and thoroughly in this House on Second Stage. I also discussed the subject matter of the proposed amendments when I appeared before the Joint Committee on Justice, Equality, Defence and Women's Rights in September last year. The drafts of the amendments, which had been approved by the Government in November and December last, were also circulated to the committee as well as being sent to the Irish Human Rights Commission. In addition, I ensured they were available on my Department's website as soon as they were approved by Government. Since then the drafting process has been in hand and it has been a detailed and painstaking process. In other words, I have made every effort to encourage debate on the issues covered by the amendments I now propose. At the September session of the Oireachtas joint committee I emphasised that if Opposition members wanted to table amendments of their own or draw them to my attention for inclusion in the Bill, I would give them every positive consideration.

I am now in a position to bring the formal amendments before the committee and, in keeping with my approach to open debate on the issues, I have already made my proposed amendments available to all the Opposition spokespersons on justice in the House. I will now outline the main areas of my package of amendments and highlight what I consider are the main issues.

The first major group of amendments will update the law on firearms and explosives. I am bringing forward a wide range of amendments to the Firearms Acts 1925-2000. First, I propose the introduction of mandatory minimum sentences, of between five and ten years, for certain firearm offences, including possession of a firearm in suspicious circumstances, possession of a firearm with criminal intent, possession of a firearm with intent to endanger life or cause serious injury to property, possession of a firearm while hijacking a vehicle, and use or production of a firearm to resist arrest. In addition to the introduction of mandatory sentencing I will also introduce a new offence concerning the modification of firearms such as "sawing-off" a shotgun and increasing fines and penalties generally for offences under the Firearms Acts.

I have indicated previously my intention to introduce a gun amnesty in the context of introducing minimum offences and I am now bringing forward proposals to that effect. I propose introducing a statutory basis for an amnesty during which firearms may be surrendered to the Garda Síochána before new penalties and minimum mandatory sentences are introduced. The reason is that there may be people in whose property there are firearms and who may feel that it would be dangerous, embarrassing or whatever to hand them up, but if we are introducing a new system where knowingly being in possession of those firearms after a certain date attracts a mandatory minimum penalty, it seems only fair to persons in that situation to state that they have one chance to come clean and hand up the firearms before they attract the mandatory minimum sentence. This would enable those in possession of firearms, who are not in compliance with the legal requirements, to regularise their position, and thus enable the Garda Síochána to concentrate on more serious offenders. During the amnesty period persons who surrender weapons will not be prosecuted for the simple illegal possessing of the weapon. However, surrendered weapons will be forensically tested and where found to have been used in a crime, the weapon and the forensic evidence will be admissible in any proceedings subsequently brought. The amnesty is for possession of the weapon; it is not in respect of a crime committed using the weapon.

I understand, through Deputy Haughey and Deputy Bruton, that the parents of the late Ms Donna Cleary wish to be associated with this amnesty proposal and have asked me to indicate to this House that they support it and will publicly support it when the time comes.

I am also bringing forward amendments governing the grant of firearms certificates. Under these amendments I propose that I, as Minister, may deem certain firearms as "restricted" by reference to specific criteria, including the calibre of the weapon which relates to the size of the bullet it fires, the action type, in other words, whether it is automatic, semi-automatic or whatever, and the muzzle energy — whether these are high velocity weapons, for instance — of the firearm. In future any person wishing to obtain a certificate for such a firearm will have to apply directly to the Garda Commissioner. It will not be a matter in which one applies at one's local Garda station. The conditions under which firearms certificates may be granted are also being amended and will include, among other things, a condition that safe and secure storage be provided for the firearm before a firearms certificate is granted.

The amendments I propose to the Explosives Act 1875 include the introduction of a new offence of possession of fireworks for sale without a licence and I will also increase fines in that regard.

Deputies will be all too aware of the need to continue the fight against organised crime and therefore I will propose a number of amendments in this area. These amendments will have the additional benefit of ensuring our law is brought into line with our commitments under UN and EU instruments. I have examined Canada's provisions on organised crime. We can usefully draw from those provisions. I have also taken account of useful comments made by the Irish Human Rights Commission in framing my proposals in this area, as I have done in other areas.

When I addressed the committee in September last year on this issue, I said there were problems with criminalising membership of a criminal gang because relationships in such gangs are fluid, complex and more a state of mind than a matter of provable fact. Nevertheless, that should not deter us from putting an offence of participation in a criminal gang into our law and I will propose such a course.

I propose that the offence will be one of contributing to or participating in an activity of a criminal organisation, not necessarily to the commission by a criminal organisation of a serious offence, although the intention behind the contribution must be to enhance the ability of the organisation to commit or to facilitate it in committing a serious offence. It will not be necessary to prove the commission of a specific offence. The offence is to be punishable by up to five years imprisonment. I also propose an offence of committing an offence for the benefit of a criminal organisation, based on the Canadian criminal code, which is to be punishable by up to ten years imprisonment. In addition, I will provide for the offence of conspiracy to commit a serious offence. Although conspiracy is already a common law offence here, it does not cover conspiracies in Ireland to commit an act abroad, as required by the international conventions. My amendment will close this loophole.

I propose significant updates to the laws pertaining to drug offences, including changes to strengthen the provisions on the ten year mandatory minimum sentence for drug trafficking inserted into the Misuse of Drugs Act 1977 by the Criminal Justice Act 1999. The 1999 amendment provided for minimum sentences of ten years on conviction for possession of drugs of a certain value for sale and supply. The court was provided some grounds which it could take into account if it felt a sentence of less than ten years was appropriate but the legislation was clear in stating that this was to happen only where exceptional and specific circumstances would make a ten year sentence unjust. My new proposals will seek to ensure that the grounds for considering a sentence of less than ten years are clarified further. It is being proposed that, as against mitigating factors such as co-operation and a guilty plea, the court will also be required to take into account evidence of previous drug trafficking convictions. A record of such convictions will be a counter balance to any reduction that may have been felt to be appropriate. In this context, I propose to direct the courts when applying the exception to have regard to the public interest in deterring and preventing drug trafficking.

I will provide for a new offence of importing drugs having a value in excess of €13,000. This offence will attract the minimum ten year sentence.

In line with a commitment in An Agreed Programme for Government, I will propose a new offence of supplying drugs to a prison. A further commitment in the agreed programme is the establishment of a drug offenders register, whereby convicted drug offenders must register with the Garda. The proposal is based on the same principle as the sex offenders register and will enable the movement of convicted drug dealers to be recorded in a similar fashion, so that it will be a requirement that the Garda is notified of changes of address and movement in and out of the State. This register will assist the Garda in monitoring illegal activity and should provide useful intelligence in the fight against drug crime.

My main proposal in the area of sentencing policy puts the arrangements for suspending sentences on a statutory footing for the first time. I will provide that, where both a fine and custodial sentence are proposed, the fine may be imposed but the sentence deferred on condition that the person keeps the peace, is of good behaviour and meets any conditions stipulated by the court. I have in mind that a District Court judge will be able to impose a fine immediately for certain kinds of behaviour, while deferring a decision on a custodial sentence so as to determine whether the offender can reform himself or herself.

I propose provisions for new restriction on movement orders, which in some circumstances may entail electronic tagging of offenders. These proposals will give the courts significant new and additional means of dealing with offenders, especially those convicted of public order offences and minor assault type cases.

My proposals on anti-social behaviour orders will address a serious and pressing issue for many in society. There will be two distinct sets of arrangements, one for children between 12 and 18 years of age and the other for adults. My colleague, the Minister of State at the Department of Justice, Equality and Law Reform, Deputy Brian Lenihan, will address the issues pertaining to children later in this debate but I wish at this stage to draw attention to the fact that there will be significant similarities between the two sets of proposals, for example, the same definition of anti-social behaviour will apply in both cases. The application for an order will be a last resort after other options have been tried and have not been seen to work. In both cases, only a senior Garda may apply for an order. The orders will be granted by means of civil rather than criminal procedures, thus ensuring that those who are the subject of an order do not acquire a criminal record. Breach of an order will be a criminal offence, much like breach of a barring order. In the case of children, the proposals are closely tied to the philosophy and procedures of the Children Act 2001. In other words, every effort will be made to divert the child from the criminal justice system and there will be parental involvement at all significant points. Overall, my proposals represent a fair, balanced and proportionate response to an urgent social problem. I have been at pains to ensure we learned from difficulties experienced with the British model and I am satisfied that I have achieved that in my proposals.

The Minister of State, Deputy Brian Lenihan, will address the House later on proposals to amend the Children Act 2001. For now, I will just mention that, in addition to amendments to provide for the introduction of anti-social behaviour orders, the amendments will serve two other main purposes: to give effect to reforms in the youth justice system; and to amend provisions pertaining to the age of criminal responsibility.

The programme for Government includes a commitment to codify all substantive criminal law into a single crimes Act. In January 2003 I established an expert group to consider possible approaches to codification. The group published a report on 29 November 2004 which, among other matters, recommended that a criminal law codification advisory committee be established on a statutory basis, similar to the Company Law Review Group, to oversee the codification project in order to cement commitment to the process on a long-term basis. Pending the enactment of the provisions in this Bill and in line with the wishes of the expert group, I intend to proceed with the establishment of this committee in shadow form and on a non-statutory basis. I have already obtained the necessary approval of the Government in this respect, as well as for the implementation of an innovative co-operative arrangement between the committee and a third level institution to facilitate the research function of the committee. I have appointed Professor Finbarr McAuley, who also chaired the expert group, as chairperson of the committee and I am considering other possible appointees to the committee in accordance with the recommendations of the expert group.

My package will include several other miscellaneous proposals to address various issues. I want, in particular, to mention a proposal to protect staff at accident and emergency departments in hospitals and other emergency workers, including ambulance crew and fire brigade staff, from attacks and assaults and a proposal to create a new offence of possession of an article connected with certain offences. I will address the fall-out from a Supreme Court judgment relating to the issuing of search warrants by District Court judges. This is a very important aspect of the administration of justice and I want to move quickly to address certain doubts arising from that judgment.

I may wish to bring a limited number of additional amendments on Report Stage and Members of the Opposition are free to do likewise.

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