Michael McDowell (Dublin South East, Progressive Democrats)

I move: "That the Bill be now read a Second Time."

From time to time this House is confronted with issues that go to the heart of our role as national legislators. On such occasions, a courageous response on our part can give leadership and galvanise society into clear and determined action. The Criminal Justice Bill 2007, which I am pleased to introduce today, provides the House with an opportunity to send a clear and unambiguous message that, as a society, we are not prepared to allow organised criminal gangs set about the destruction of families and communities.

In October, and following the enactment of the Criminal Justice Bill 2006, I said I intended to examine broader issues in regard to the criminal law. I established the Balance in the Criminal Law Review Group under the chairmanship of Dr. Gerard Hogan SC, on 1 November. I requested that group to prepare an interim report on the right to silence at the beginning of February.

In December there were a number of serious atrocities, including the murders of Alan Cuniffe, Anthony Campbell and others. It became clear some criminal gangs believed they could act with impunity. The Government agreed a major package of anti-crime measures in mid-December. These included a further increase of 1,000 in the strength of the Garda Síochána to bring the total to 15,000; sanction for 300 additional civilian administrative support posts for the Garda Síochána; the recruitment of the seven senior civilian posts recommended in the recent reports from Kathleen O'Toole and Senator Maurice Hayes; an increase in the retirement age for gardaí, sergeants and inspectors from 57 to 60; a proportionate increase in the targeted strength of the Garda Reserve from 900 to 1,500; increased staffing for the forensic science laboratory, the office of the Director of Public Prosecutions and the Courts Service; and a clear statement there was no limit on the funds available for the witness protection programme, which is provided for in statute.

I outlined I would bring a legislative package before this House also. Over Christmas we worked on this package and published the scheme in early February with a view to enacting the legislation this session. The Bill was published last week and we now have three weeks on Second, Committee and Report Stages to consider the Bill.

I acknowledge the Bill contains what some may consider tough measures but, as I have said on a previous occasion, the measures are both necessary and proportionate to the threat we face from organised crime. All of us, without exception, accept we cannot tolerate the growing threat from that source. It is not a threat that is confined to certain areas around Dublin; it is a threat that, increasingly, we are facing in every part of the country and in every strata of society.

Although additional staffing and equipment are essential, it is equally important our laws are capable of responding effectively and speedily to new patterns of crime. It is in that context I bring forward the Criminal Justice Bill 2007, which provides an extensive updating of the law in that area. As a result, the law enforcement agencies will be in a much better position to react to the serious situation we face as a society.

I will give the House an outline of the Bill's main elements. The Bill has 51 sections, in 9 Parts, with two Schedules. Part 1 deals with standard items such as commencement and interpretation. Part 2 — sections 5 to 23 — updates the law on bail. In a moment I will deal more fully with sections 6, 7, 11 to 13 and 19 in particular. However, I wish to mention the remaining sections in Part 2 introduce a number of important changes to the administration of the bail system, to permit, for example, the setting of non-monetary conditions in cases where that would be appropriate.

Section 6 provides that the applicant for bail may be required to provide a statement on his or her net assets and income, as well as details of any criminal convictions and any previous bail applications. Section 7 provides that a chief superintendent may give his or her opinion that the applicant, if given bail, is likely to commit a serious offence and that the application should therefore be refused. Sections 11 to 13 provide that a person granted bail may be subject to electronic monitoring if the bail is conditional on the person being or not being in certain places at certain specified times. Section 19 provides the prosecution with a right of appeal against the grant of bail or in respect of any conditions attaching to bail, where it is granted. Such a right is not currently available to the prosecution. This section also allows the High Court to transfer bail applications to the Circuit Court in cases where the case can be tried by the Circuit Court.

The net effect of the changes being introduced by Part 2 is the prosecution authorities will be in a position to mount a more effective challenge to bail applications where there is a likelihood of the applicant committing serious offences if given bail. Part 3 — sections 24 and 25 — deals with sentencing. Before I outline the nature of the proposed provisions I wish to make a few general remarks on sentencing. When it comes to this issue, my views are well established and were set out in a speech in 2004. I made the point that there has to be consistency in sentencing. When it comes to the mandatory minimum sentencing provisions applicable to section 15A drug trafficking offences, the will of the Oireachtas, which is also the will of the people, must be given effect. It is not window-dressing. It should lead to a ten-year sentence, with seven and a half years served taking account of remission for good conduct. It is not disproportionate or arbitrary but a conservative measure to reflect the values of society put in place for the guidance of the Judiciary and to stop people in the drugs trade from serving short sentences and resuming their criminal activities.

Some people may argue that a statutory scheme is not necessary for consistency in sentencing for drug or firearm offences, but if that were the case, there would be no need for legislation. The figures show that the policy laid out in 1997 has not been adhered to, and that is why I have had to make it more explicit. I cannot comment on individual cases, and I do not intend to start doing so, but people must be under no illusion that the people of Ireland expect coherent, rational and consistent sentencing from the courts, and if they do not see that, it amounts to potentially grave damage to the administration of justice.

As I said in 2004, my preference is the development of effective sentencing jurisprudence by the courts themselves, and I reiterate my strong view that, collectively and individually, the independence of the Judiciary is an important value enhanced rather than damaged by collective measures taken by the Judiciary to ensure consistency, rationality and coherence in sentencing.

My view remains unaltered. I do not want to be forced down the continental or USA model where the Legislature is forced to specify relatively inflexible sentences for every offence. To avoid that, there is a crying need for the development of sentencing guidelines by the Judiciary that are effective and are followed. It is not good enough to say that the DPP's right of appeal against judicial error in sentencing is sufficient to ensure consistency, coherence and rationality. I am strongly of the view that sentencing policy should be collectively formulated by the Judiciary and stress that I will give every backing through resources and legislation to achieve that end.

Section 24 provides that a person who commits any one of a list of scheduled offences and, within seven years, commits another of those offences will be subject to a penalty of imprisonment equal to at least three quarters of the maximum laid down by law for that second offence. Where the second offence carries a potential maximum of life imprisonment, a sentence of at least ten years must be imposed.

Section 25 provides that, upon release, a person who has been imprisoned for one of the scheduled offences may be subject to a crime prevention order. It will require the person to observe any conditions laid down by the court, which may include a condition that the person must keep gardaí informed of his or her movements. The order may last for up to ten years, or until the time when the maximum sentence for the offence, had it been imposed, would have expired.

The scheduled offences in Schedule 2 to the Bill are among the most serious known in criminal law and include all the offences typically associated with gangland crime, including, of course, drug-trafficking and firearms offences. In broad terms, they are racketeering offences, and the inspiration behind this is the racketeering-influenced corrupt organization, RICO, legislation in the USA. These provisions on sentencing are innovative in Irish terms and reflect the need to find new ways to meet the challenge that we face from organised crime.

Part 4, covering sections 26 to 29, deals with the right to silence. I will deal with sections 26 and 27 together. Section 26 inserts a new version of section 18 of the Criminal Justice Act 1984. Section 27 inserts a new version of section 19 of the 1984 Act. The provisions in sections 18 and 19, by virtue of coming under the 1984 Act, are applicable to all arrestable offences. Under the current provision, inferences may be drawn only if it is the arresting garda who asks the arrested person to account for, in the case of section 18, objects or marks or, in the case of section 19, his or her presence in a particular place, and the person refuses or fails to do so. That has proven to be a significant restriction on the operation of those sections.

Under the revised version now proposed for the two sections, any garda who is questioning the suspect may ask him or her to account for the objects or marks, or, as the case may be, his or her presence in a particular place. Several other changes are made that apply to both sections. It is proposed that the court may draw an inference only where the circumstances in question "clearly" called for an explanation. The court may draw inferences in situations where it is determining whether the person is guilty or considering an application for dismissal of the charge in the course of a trial, on the basis that there is no case to answer. An inference may be drawn only where it is, or is capable of being, treated as corroboration for any other evidence on the matter. A person may not, however, be convicted solely or mainly on an inference.

The court must not draw inferences unless it is satisfied that the accused had been given a caution in clear terms and had access to a solicitor before failing or refusing to answer the question put to him or her by the investigating garda. The court may take account of the point in time when the accused first gave an account regarding the objects or marks or his or presence at the place. An electronic recording of the interview must be available before an inference is drawn, unless the accused had refused to have the questioning recorded.

The new sections provide that the arrangements that they set out shall not prejudice the admissibility in evidence of the silence or other reaction of the accused in response to anything said in his or her presence relating to the conduct regarding which he or she is charged, where evidence about that reaction would otherwise be admissible. Similarly, neither section precludes the drawing of an inference from the silence or other reaction of the accused where an inference might be drawn other than on the basis of those sections. That is also the case regarding a failure by the accused to account for an object or mark or the condition of clothing, where the inference could be drawn other than on the basis of section 18.

Section 28 inserts a new section 19A into the Criminal Justice Act 1984. Two points must be made about section 19A. First, it relates to all arrestable offences. Second, it must be distinguished from sections 18 and 19 of the 1984 Act. Whereas section 18 deals with a failure to account for certain marks, substances or objects, and section 19 deals with a failure to account for being in a specific place, section 19A will deal with a failure on the part of the accused to mention while being questioned specific facts that he or she later relies on in his or her defence. In all other respects, section 19A is to be applied in the same way as sections 18 and 19. For example, it must be a fact that "clearly" called for explanation. In the same way as arose in sections 18 and 19, the failure to mention the relevant fact may give rise to an inference where it is, or is capable of being, treated as corroboration for any other evidence on the matter. However, the person may not be convicted solely or mainly on the inference alone. The safeguards regarding access to a solicitor and electronic recording of the interview also apply.

Since the new section 19A, along with sections 18 and 19, have general application to all arrestable offences, it is no longer necessary to have more specific provisions. As a result, section 7 of the Criminal Justice (Drug Trafficking) Act 1996 and section 5 of the Offences Against the State (Amendment) Act 1998 are being repealed. That is being effected by section 3 and Schedule 1 to the Bill. Section 7 of the 1996 Act and section 5 of the 1998 Act covered the same ground as the new section 19A, as is clear.

Section 29 amends and updates section 2 of the Offences Against the State (Amendment) Act 1998. Section 2 is more specific than section 5 of the 1998 Act, in that it relates to inferences that may apply in cases relating to membership of an illegal organisation. It would not, therefore, be appropriate to repeal it but it is being amended to include, in particular, the safeguards now generally available under sections 18, 19 and 19A of the 1984 Act in the case of arrestable offences. Those safeguards relate to the need for a clear caution, access to a solicitor and the need for an interview to be electronically recorded. The provision that the court may take note of the time or stage at which the person first gave an account is also included.

I am satisfied that the new situation improves considerably on the existing one and that this balanced set of proposals allows for reasonable and common sense inferences to be drawn but nevertheless also provides strong and enforceable safeguards.

Part 5, section 30, deals with the Misuse of Drugs Act 1977 and, in particular, section 27 of the 1977 Act, which deals with the question of mandatory minimum sentences. Deputies will note that section 30(2) of the Bill helpfully contains a table that restates the consolidated version of section 27. I will refer to that table to identify the amendments being made by the Bill. The first amendment is in subsection (3C). A new paragraph (a) is added. It is a "construction" clause that sets out in the clearest terms the intentions of the House and the Seanad regarding mandatory minimum sentences for drug-trafficking offences. It will be perfectly clear that the mandatory minimum term of ten years must apply in all but the most specific and exceptional cases.

In subsection (3CCC), a new paragraph (a) is added. At present, the subsection provides that in the event of its being a second or subsequent drug-trafficking offence, the mandatory minimum sentence of ten years imprisonment must apply, without consideration of any exceptional or specific circumstances. It is now proposed that, where the drugs are valued at €500,000 or more, the mandatory minimum of at least ten years is to apply, without reference to any other factors and regardless of whether it is a first, second or subsequent offence. The maximum sentence of life imprisonment remains unaffected by those changes.

Having discussed the matter with the Attorney General, I feel that specifying a value of goods is justified by constitutional jurisprudence, particularly in Canada, which says it is proportionate to have a less flexible approach where the value of the drugs is very large. I have no doubt the proposed approach is correct. I see the danger that, given the €15,000 to €500,000 limits, somebody will ask whether this is a hint to the Judiciary that it is free to ignore the ten-year minimum mandatory sentence. No such inference is warranted, however, or should be drawn. All it is saying is that, in the case of a second or subsequent offence, major participation in drug dealing is by itself incapable of being dealt with on the exceptional cases basis. I am satisfied that section 27 of the 1977 Act, as it is now set out, represents a clear statement of when the ten-year mandatory minimum is to apply. For the present nothing more needs to be said on this matter.

Part 6, sections 31 to 37, deals with firearms, and in particular with the circumstances where the mandatory minimum term of either ten or five years imprisonment is to apply. Each section repeats the construction clause I have already referred to in the case of drug trafficking. The new clause puts beyond doubt the intentions of this House concerning this matter, if anyone could have been in doubt about them in the past. A number of minor and technical amendments are also included that addresses issues arising from amendments made to the firearms legislation in the Criminal Justice Act 2006.

Part 7 — sections 38 to 40 — deals with amendments to the Garda Síochána Act 2005. Section 38 inserts a new chapter 3A into the 2005 Act providing for the establishment and functions of a Garda Síochána executive management board. The board will consist of executive members — the Garda Commissioner as chairperson, the Deputy Garda Commissioners and a member of the civilian staff of the Garda Síochána, at a grade equivalent to that of a Deputy Garda Commissioner — and three non-executive members. The three non-executive members, who will have appropriate management experience, will be appointed by the Government on the nomination of the Minister. The non-executive members will serve in an advisory capacity.

The function of the board will be to keep under review the performance by the Garda Síochána of its functions, as well as the arrangements and strategies in place to support and enhance the performance of those functions. In particular, the board will keep under review the arrangements and strategies in place to support and improve the performance of the organisation and the corporate governance arrangements and structures within the force. The board will produce six-monthly reports on the performance of its functions to the Minister and they will be laid before the Houses of the Oireachtas.

Section 39 provides for the replacement of section 42 of the 2005 Act.

Section 42 enables the Minister to order special inquiries to be carried out into Garda activities in certain circumstances. I have come to the conclusion that the provision should be strengthened and extended. Therefore, inquiries under the current section 42, which are limited to the administration, practice or procedure of the Garda Síochána, will be broadened to include "operations" of the force and "the conduct of its members". The person appointed by the Minister to undertake the inquiry may interview not just members of the Garda, but any other person who has information or control over a document or thing of interest to the inquiry. That person will also be empowered to apply to the High Court for an order of compliance backed up, if necessary, by the possibility of an order for contempt being made by the court where there is a failure to co-operate with the inquiry.

Section 40 provides for a number of amendments to the Garda Síochána Act 2005. Some of these amendments arise from suggestions made to me by the Garda Síochána Ombudsman Commission. The remainder are mainly technical in nature and involve minor changes to clarify certain matters that have come to light since the passing of the 2005 Act.

Part 8, section 41 is somewhat extraneous. It amends the Sea Fisheries Acts 2003-06. These amendments are necessary to strengthen controls concerning the detection of illegal fishing activity and enforcement of the law in that area. They are included in this Bill at the request of the Minister for Communications, Marine and Natural Resources, Deputy Noel Dempsey, and with the approval of the Government. The amendment provided for in paragraph (a) will allow a sea fisheries protection officer to apply to a judge of the District Court for a search warrant to enter and search places where there are reasonable grounds for suspecting that there is evidence of an offence under the Sea Fisheries Acts. The necessity for this amendment was highlighted by a recent case where sea fisheries protection officers were denied access to premises. Their legal right to enter was subsequently vindicated by the High Court. This amendment, within the normal safeguards that apply to such searches, will ensure that in future serious investigations will not be hampered or compromised by the unlawful obstruction of sea fisheries protection officers carrying out their duties. Paragraph (b) sets down a provision for penalties for offences committed somewhere other than on board a sea-fishing boat. That circumstance was not specifically provided for in the Sea Fisheries and Maritime Jurisdiction Act 2006. Penalties for offences under the 2006 Act committed on land, as well as at sea, will now apply in both circumstances. Paragraph (c) is merely a technical amendment following from the amendment in paragraph (b).

Part 9 — sections 42 to 51 — deals with several important issues. Section 42 amends certain provisions in the First and Third Schedules to the Garda Síochána (Complaints) Act 1986, which relate to the terms of office of members of the Garda Síochána complaints board and the appeals board respectively. It is necessary to provide that those members cease to hold office upon the repeal of the 1986 Act, when the relevant provisions of the 2005 Act are commenced.

Section 43 substitutes a new version of section 183 of the Criminal Justice Act 2006. That section deals with possession of articles intended for use in connection with kidnappings and false imprisonment. The scope of the section is being expanded to cover several other offences, namely murder, capital murder and drug trafficking. An offence is committed where a person has possession of an article in circumstances that give rise to a reasonable inference that they have it for purposes of committing one of the offences listed. It is a defence for the person to show that he or she did not possess it for the commission of an offence. Therefore, if a person had plastic bags, weighing scales and sugar piled up in a flat in Dublin, in circumstances that would give rise to a reasonable inference that they were preparing to engage in drug dealing, this section would criminalise that behaviour. It would be open to a person to say they had the items for some other reason — perhaps he or she is a baker.

See this speech in context