Gerard Murphy (Cork North West, Fine Gael)

It is almost 12 years since the zero tolerance campaign led by the Minister, Deputy O'Donoghue, began. The campaign made him Minister for Justice, Equality and Law Reform but did little for the concept of zero tolerance or crime reduction. During the five years of the O'Donoghue Ministry, the current Minister was a law officer to that Government and a member of the party that supported it. Yet nearly ten years after the O'Donoghue-McDowell regime, in the opening years of this century serious crime is on the increase and, as we are constantly told, detection rates are down.

What happened to the zero tolerance policy of the Fianna Fáil-Progressive Democrats administration over that ten-year period? Is the Government incapable of handling the task? Does it spend all its time drawing up laws instead of supporting the Garda in implementing the law? Did the Fianna Fáil-Progressive Democrats Government think for a minute that there might be a social dimension to the problem? Did anybody ask whether the division between rich and poor exacerbated under this Government had anything to do with the crime figures? Did poor housing and poor youth facilities in the more deprived areas contribute to the crime wave? Did the Government's failure to introduce a properly structured community Garda force with the ability to connect with the community and with young people contribute to the rising crime rate? Did the Government's failure over a nine or ten-year period to properly resource the Garda Síochána affect the crime rate?

In this rich, modern economy would it be too much to ask the Minister for Justice, Equality and Law Reform to provide a Garda radio network that works? Did anybody mention to the Minister that good communications are a key element in fighting crime, that a working computer system would be of enormous benefit to the Garda or that lay people could replace the 400 gardaí doing clerical work in Garda stations so that an extra 400 gardaí could be on the streets?

We are not talking about today or yesterday. It is ten years since the Minister, Deputy O'Donoghue, started ranting and raving about zero tolerance. The Minister's party was part of a Government that lost sight of the objective in its first five years and there has been no noticeable improvement in the past four years. If talking and legislating would have solved the problem, with the Ministers, Deputies McDowell and O'Donoghue, we would be well on our way to a crime-free society.

We must deal with the original Bill and the new Bill that has been created by the addition of over 200 amendments. As I said when I originally contributed to this debate, one of the main pitfalls of criminal legislation is infringing civil liberties and human rights. That is my central concern with the Bill and its amendments. A section of the original Bill infringes constitutional rights. A person's home enjoys special status under the Constitution of Ireland, protected by Article 40.5, which states: "The dwelling of every citizen is inviolable and shall not be forcibly entered". A person's freedom is protected under the Constitution and under other EU and international accords. The extension of the period of custody from six to 24 hours is sailing close to the wind and may contravene these essential rights, including the right to freedom. The change in regulations that allows the Garda to issue search warrants to gardaí without any input from the Judiciary or lay personnel could have major implications in the longer term. Our legal system, if it is to function, depends on checks and balances. The Minister claims the measures included in the Garda Síochána Bill and which apply in respect of the Office of the Ombudsman and the inspectorate compensate for the dilution of civil liberties in the Criminal Justice Bill 2004.

Section 13 in Part 3 interferes with the right of a person to confront his or her accuser. The Human Rights Commission has serious concerns about this but the fact remains that events in recent court cases seem to justify some change in this area.

The taking of forensic samples and the establishment of a DNA database are open to potential abuse in the future. One wonders whether provisions in the Garda Síochána legislation address the infringement of civil liberties in many sections of the Criminal Justice Bill.

Section 29, which concerns on-the-spot fines for public order offences, seems reasonable. As I pointed out, however, the interpretation of an individual garda can pose a problem. It is a matter of interpretation whether the behaviour he or she witnesses constitutes a bit of fun or an offence. Will young people, in particular, find it easier to accept the judgment and punishment of the garda and a consequential record of some kind rather than claim their innocence? Even judges differ substantially in their assessment of the seriousness of public order cases.

What role will the new Garda volunteer force play in implementing the provisions of section 29? Given that its members are to receive just 100 hours of training, will it become judge, jury and executioner when confronted with misbehaviour by young people? Any reasonable person would be concerned that civil liberties are being diminished, at the very least, by the implementation of these regulations, including those concerning anti-social behaviour orders.

There is no doubt that some young adults between the ages of 12 and 18 cause serious disruption to the lives of ordinary citizens in what seems to be a calculating and deliberate manner. The introduction of anti-social behaviour orders is one suggested way of dealing with this problem. Seeing that this Government has no intention of dealing with the root causes of misbehaviour in particular areas, it is left with no option but to introduce a new idea or propaganda to try to convince the public it is dealing with the issue.

Anti-social behaviour orders infringe upon the rights and civil liberties of young people. I understand why the Minister, having let matters deteriorate so far, feels these rights must be balanced to a certain extent against the rights of the ordinary citizen. It appears that anti-social behaviour orders, as they operate in England, are inconsistent with the European Convention on Human Rights and the UN Convention on the Rights of the Child. The major problem is that penal sentences are imposed for breaches of orders made in civil proceedings. This is done without the protection of due process and blurs the line between civil and criminal law, which is a dangerous precedent to set in any circumstances.

We must examine these apparent breaches of civil liberties on Committee Stage and try to introduce a system that does not automatically produce a conviction in a criminal court. The granting of an anti-social behaviour order should and, I hope, will be the final stage in a long process. This process, involving a warning, meetings, a contract, and the involvement of a Garda superintendent, social workers, teachers, perhaps a priest and, most importantly, parents, will, I hope, prevent all but the most serious cases resulting in the issuing of anti-social behaviour orders.

If the emphasis can be placed clearly on the social elements of a case rather than the law enforcement element, perhaps the anti-social behaviour order experiment will be as successful as the Garda diversion programme. Yet again, the inclusion of the Garda diversion programme in some amendments, irrespective of how successful the programme may be, introduces further potential for a breach of civil liberties. Until now, a young person would have had to have been involved in a criminal incident before being included in a diversion programme. Until now such a programme did not involve the imposition of a record of any kind. Under the proposed amendments, a young person who is not involved in criminal activity but perceived to merit an anti-social behaviour order can be assigned to a diversion programme which could subsequently be used against him or her in a future court hearing. This breach of civil liberties and human rights must be considered on Committee Stage.

On the new sections dealing with organised crime, the new Part 7 is to be welcomed. Membership of a criminal organisation will be an offence. Provision will be made to deal with those committing an offence for the benefit of a criminal organisation or an offence of conspiracy to commit a serious offence. Organised gangland crime is one of the major new challenges facing law enforcement agencies. It may be necessary in future, as is evident from the Canadian model, to give gardaí added protection when dealing with new types of gangland warfare and organised crime.

There has been much debate about mandatory minimum sentencing. However, under the Bill, discretion is largely left to the judges. The advice on the separation of powers between the Oireachtas and the Judiciary, as referred to in the Constitution, seems to be that neither the Minister nor the Oireachtas has the power to dictate to the Judiciary. We should stop talking about mandatory minimum sentences if we cannot legislate for them conclusively. The use of such terminology is yet another effort to con the public into believing that the Minister is adopting a stricter approach to crime. Having said that, the new sections introduce some interesting clarifications and the introduction of a drug offenders register is welcome.

The new Part 10, dealing with sentencing, is largely to be welcomed. We welcome the arrangements for placing suspended sentences on a statutory basis for the first time and also welcome the change whereby, when both a fine and custodial sentence are proposed, the former may be imposed and the sentence deferred on condition that the person in question comply with the conditions laid down by the court. This seems to be a very sensible proposal and way to do business. It involves imposing the fine first and giving the person fined a chance to redeem his ways over a period before imposing the ultimate custodial sentence.

On Committee Stage we will examine more closely the restriction of movement orders and electronic tagging. These two approaches also have implications for civil liberties and freedom of movement.

Under miscellaneous matters, the new categories of offence against Army personnel, members of the Civil Defence, particularly staff in accident and emergency departments, members of the fire brigade and other care workers, will be treated as if a garda was assaulted.

While I am not sure what effect the Bill will have on crime rates, it is extremely important from the point of view of civil liberties and human rights. It is important we closely examine the issue of civil liberties and do not cod ourselves, as the Minister has done in recent years, by hoping the introduction of new legislation will solve our problems. The only way to solve our problems is through providing the proper resourcing and equipment for the Garda. We need a comprehensive community police force based in the community with a clear line of promotion up to and including assistant commissioner. These gardaí are doing an exceptional job for young people in communities. While the Bill contains some provisions that will help the Garda and clarify matters for members of the force, the fundamental way to solve our problem is by properly supporting the force.

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