Dáil debates

Wednesday, 29 March 2006

Criminal Justice Bill 2004: Motion (Resumed).

 

10:00 pm

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

Far from being rushed through, the legislation is travelling at a snail's pace. I am then asked why I am going so slowly. I have sympathy with that question because the amendments have taken longer than I originally estimated. However, I remind the House that when the legislation on the Garda Síochána was being debated and the heads of this Bill were published, I said I would only proceed with those two measures in parallel because significant amplification of Garda powers is involved.

I also remind the House and, in particular, Deputies from the Green Party that the report on which the original Bill was based suggested that 48 hours' detention should be available for all cases in which a sentence of longer than ten years could be imposed. That would have covered the average mugging which, as a robbery, carries the maximum penalty of a life sentence. In fact, I cut back on some of the recommendations contained in the report of the expert group chaired by the late Eamonn Leahy SC. It is not as if I have gone mad with police powers, and I have cut back some of the powers sought.

When the Oireachtas Committee on Justice, Equality, Defence and Women's Rights sits, every Member is entitled to attend and have his or her say. Nobody is being kept out from even the most minute consideration of these issues. Everybody is entitled to attend and put in their tuppence worth. It is not restricted to members of the committee. If anybody has a particular interest in any part of the issue, he or she is welcome to come along to those sessions. It is my intention to be available as much as possible, to sit long hours and consider every possible amendment. I will consider not just Government amendments but Opposition amendments to this legislation.

There has been some comment on the drugs issue, and I will discuss the drugs legislation as some points should be made. In 1999, this House passed legislation with the purpose of bringing to the Judiciary the clear view of the Oireachtas in legislative form that substantial and wholesale drug trafficking must attract substantial sentences. This was the aim of the House at that time, and it decided to do it while at the same time respecting the independence of the Judiciary and the constitutional requirement that the Judiciary should never be tied to carrying out an action which was manifestly unjust.

Some years ago it could be said that only 4% of cases in which more than the threshold of drugs were present produced a sentence of more than ten years. Some people therefore argued that in 96% of cases, the minimum sentence was being undershot by the Judiciary in its sentencing policies. That situation has changed since Members across the House, including people such as Deputy Gregory, reminded the Judiciary that the law had been passed. I am now told that the percentage of cases where a sentence of more than ten years is imposed is over 20%. People are listening, and I am grateful to the Judiciary for listening to what has been stated in this House.

I wish the process would go further. It is my intention to tender amendments to counterbalance the legitimate tendency to temper every consideration of justice by mercy. It should be remembered that a mercy to an individual before the court in terms of sentence is not a mercy to the community. If people believe they can have €300,000 of cocaine on their person for transportation from one place to another in this State and that they will only get a three or four year sentence if caught in this context, the "Mr. Bigs" will never be apprehended or exposed. It will always be the case that those engaged in the drugs trade, which is so corrosive of Irish society, will find the rewards to significantly outweigh the risks.

It has been stated that no two cases are the same in the eyes of the Judiciary. Deputy Andrews and others have made that case, which is true. It could equally be said that most funerals are more or less similar, and the drugs trade is death to addicts and people who get in the way of drug and gangland criminals. Therefore, the effects on society of one person carrying €300,000 of cocaine compared with another person carrying the same amount of cocaine are more or less the same. Whereas the individuals involved may never be the same, the effects on society are.

I have the greatest respect for the Judiciary. As a barrister of many years, many in the Judiciary are personal friends of mine. This House is serious about drug and gun crime, and it is not jumping on some opportunistic bandwagon. It is not getting into a "hang them and flog them" mode. It is simply indicating to the Judiciary that it cannot be the case that these matters are dealt with other than with the greatest severity. This is because the effects on society are so corrosive and destructive of ordinary people's constitutional rights.

Deputy Eamon Ryan queried whether my approach to criminal justice is liberal, and I believe it is. I have a slightly different emphasis than he does, however. I do not believe that human rights under the Constitution are focused mainly on those who are accused of crime alone. The State's obligation under the Constitution is to vindicate the rights of every citizen, the vast majority of whom do not infringe the law and never stand in any dock, but who have the right to have their life, property, good name and bodily integrity vindicated by law.

I do not believe it illiberal in any way to stand up for everyone's rights and to hold the balance of justice evenly between those accused of crime on one hand and those who are victims of crime on the other. I do not accept the proposition that liberal credentials are judged only by how those who are accused of crime are dealt with on a political spectrum. It is also connected to whether one is willing to protect the rights of the great majority of citizens, who are also party to the great social contract of the Constitution and who have human rights that deserve to be vindicated in full.

A point has been made by Deputy Andrews about expunging criminal sentences after a period of time. That is a matter I intend to return to. Like the Deputy, I am conscious that there are people who are dogged for the whole of their lives by convictions which can seriously impair the right to participate fully as citizens in our society. I met an individual who attended one of my clinics who had been convicted of an offence involving dishonesty. He had many restless nights because he had concealed the conviction from his employer, even though the offence was 20 years previously. He had realised that in theory he could be dismissed instantly because he had kept knowledge of the conviction from his employer, although he was then in a position of trust. We should be capable of allowing a person in such a position to wipe the slate clean in some shape or form.

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