Brendan Howlin (Wexford, Labour)

I have read and reread the Minister's opening contribution to the debate and find it hard to recall ever reading a sentence introducing legislation that was more full of self-importance or that belied the facts so much. The opening sentence reads: "From time to time this House is confronted with issues that go to the heart of our role as national legislators". However, the conduct and handling of this set of proposals is designed to undermine our role as national legislators, to minimise our input, to debase the Houses and to act as if we merely rubber stamp proposals that come from the Department of Justice, Equality and Law Reform. This is an assault on the integrity of the Members, of the House and of the capacity of the House to enact legislation properly in the name of the people.

It is only nine months since the House completed its deliberations on the Minister's last comprehensive Criminal Justice Bill — his last comprehensive response to criminality. It took many months for that legislation to go through the Houses. We engaged in serious debate on it and the Minister himself produced more than 200 pages of amendments, grafting onto a Bill a quarter of that size huge volumes of new law. We took time and great care and effort then to try and put in place an Act that met the needs of 21st century Ireland.

It is clear that criminal law needs to be modified and amended from time to time. Amendment should be an organic and constant process. We need to take account of new developments and new threats to the people from criminal elements. However, the announcement of the definitive crime package again and again is another matter. This undermines people's confidence in our ability as legislators to provide robust, strong and proper laws to defend their interests.

I do not believe it was a response to a completely altered environment that brought this new enthusiasm from the Minister to ensure this legislation was not just debated in the House but is made law in a timeframe that most people would regard as unacceptable. If it was not such a response that prompted the Minister, what prompted the current package? I suggest that what prompted the current package is fear, not fear of crime but fear of the judgment of the electorate. The package was prompted by the CSO crime statistics for the last quarter of last year, which showed the Government has lost the battle against crime with the proposals it put in place.

The fundamental mistake the Government made was that in the immediate aftermath of the last election it reneged on its commitment to resource the Garda and provide the numbers promised. The consequence was the statistics provided by the CSO last year, which showed drug possession up by almost one third in a year, murders up by 20% while detection rates dropped, assaults up dramatically, and robberies and thefts down. The figures on murders show that from the beginning of 1998 — the period 1997-98 is one the Minister is fond of capturing — to last November there were 113 gun murders in the State. Of these, 58, or 51%, were regarded by the Garda as detected. However, proceedings were commenced in only 36 cases, less than one third, and convictions obtained in only 19 cases, less than 17%. It is alarming that convictions were obtained in only one sixth of those murders over the past ten years, the ten years this Government has been in office. The full figures for last year proved even worse. The year 2006 was the worst for gun murder in the history of the State.

That record is the reason the Minister could not face the people. He had given his best shot, but his efforts had failed and he needed some new presentation for the people. He established an expert group and, as my colleague pointed out, demanded that it report on an interim basis. The work is incomplete and we have not seen it. The imperative of getting it all produced before the election is too much to allow proper process, debate and deliberation from anybody, whether the expert group, the House, interested parties or the collective community. The Tánaiste was right about one thing in his speech, that we as legislators will not defeat crime. We are part of the solution but we must arm all sections of the community in common purpose if we are to defeat crime.

This Bill was sent to the party spokespersons last week. I received its 128 pages by e-mail which I had to then distribute as best I could to my advisers. It was published and sent to the other Members last Thursday, this day a week ago, on the eve of the St. Patrick's Day holiday. Under Standing Orders the most minor Bills are published a fortnight before debate. A decision was taken to guillotine discussion on complicated and important proposals on Second Stage today and tomorrow. We have only two hours for debate today. The full complement of principal spokespeople will not even get a chance to speak today. The remainder of Second Stage is to be made up on what is normally a non-sitting day, a Friday, when there will be no votes and when, as the Tánaiste knew, on the cusp of an election most people would have firm commitments all around the country. It is a subterfuge to pretend that hours of debate are being given to this Bill today which is an insult to this House.

The original proposal the Tánaiste presented was that Committee, Report and Final Stages would be taken on one day next week in five hours, without even a break for a cup of tea — wham bam, that was to be it. There is no opportunity for the views of groups outside the House to be heard. The Human Rights Commission is preparing a comprehensive response to this but it will not be available until next week. The commission, which has a role to play, particularly in considering criminal justice legislation, will give its view after the House has passed Second Stage and after the closing date for amendments to this Bill. This is a sham and a fraud, a travesty of proper legislative procedure.

I say that from my heart, not as a political charge because I respect this House and the Tánaiste in normal circumstances, and when he sat on this side of the House, shared that respect. I have been in contact with the Law Society and the Bar Council, both of which are preparing comprehensive responses. How can they in a matter of days gather themselves to give a thoughtful response on the implications of fundamental changes to the criminal law?

On the Order of Business this morning the Tánaiste asked where the Labour Party stands on this Bill. He said he was clear about Fine Gael's position on it. We will not oppose this Bill. We support in general terms the principles in it but we will seek to amend, improve and question the implications of some of those principles. This is what legislative debate means. I spent last night preparing my amendments because I was required to submit them by 11 a.m. tomorrow before I even heard what the Tánaiste had to say today, and certainly before the conclusion of Second Stage, which is inadequate and unacceptable. Our objective will be to improve the Bill to the best of our ability.

Part 2 of the Bill amends the law on bail, including the Criminal Procedures Act 1967, the Criminal Justice Act 1984 and the Bail Act 1997, which was brought in subsequent to the rainbow coalition's proposal for a referendum on bail. I will not have time to deal with 50 odd sections, nine Parts and two Schedules in the short time I have but had hoped to deal with them in detail over several weeks on Committee Stage. I have serious reservations about the nature, meaning and intention of section 7. It appears to be drafted on the assumption that opinion evidence by a member of the Garda Síochána in a bail application is inadmissible. That is clearly wrong. Whether a bail applicant is likely to commit a further offence if granted bail can be only an opinion, informed or otherwise. It is a matter of routine opinion evidence given in the courts on virtually every bail application.

Section 2(2)(b) of the Bail Act 1997 provides that in deciding whether to grant or refuse bail:

a court shall take into account and may, where necessary, receive evidence or submissions concerning—

...

(b) the nature and degree of seriousness of the offence apprehended and the sentence likely to be imposed on conviction,

That is opinion and speculation. To "apprehend" that someone might commit an offence is nothing more than to have an opinion that he is likely to commit one. The Labour Party has no difficulty with opinion evidence or it being admissible in bail applications, provided it is an informed opinion, in other words, that the opinion is reasonable and reasoned. That requires that the reasons that underlie and give rise to the opinion be made available to the court for it to decide.

I have a difficulty with the thinking which seems to lie behind section 7, that a court should accept an opinion as reasonable simply because a garda says so. That undermines a basic distinction between the function of the court and the prosecution authorities. It seems to be calculated to remove the existing requirement that a Garda witness should be able to give a court the reasons for his or her opinion as drafted. I am advised that the section states that proof that a chief superintendent has a belief is itself proof that the opinion is reasonable. There are two problems with that formulation, one, neither I nor those whom I have asked to check this can think of any precedent in law in which a witness's evidence to a court that his opinion about future apprehensions is reasonable becomes without further elaboration proof of the reasonableness of that opinion.

Comparisons have been made with section 3 of the Offences Against the State (Amendment) Act 1972 but those comparisons are false. That section allows a member of the Garda Síochána, not below the rank of chief superintendent, in giving evidence on a charge of membership of an unlawful organisation to state his or her belief that the accused was, at a material time, a member of that organisation and that opinion is admissible that the accused was then such a member. The section was and remains concerned with the opinion as to fact and the court can test the factual basis on which the opinion was formed. Since IRA members abandoned the earlier stance of refusing to recognise courts and began to engage actively in their defence in the Special Criminal Court that any form of cross-examination of a Garda officer as to the basis of his opinion or any form of defence evidence contesting the basis of that opinion was often sufficient to rebut evidence of a garda that the opinion was reasonable. As I understand it, there have been no recent cases in which a garda opinion about membership of an unlawful organisation has been sufficient, of itself, to secure a conviction. What is new is section 7 is that we are asked to stipulate that a garda opinion is not just evidence of the opinion but of the fact. The section seeks to ensure that the fact a senior garda holds an opinion becomes, of itself, proof that the opinion is reasonable without any need for the reasons underlying that opinion to be proven in a court. The garda is no longer required to provide some reason to the court why the opinion is held.

The second reason I query the new section is that it seems to be drafted on the basis of confusion over the respective roles of the court and prosecution. The 16th amendment of the Constitution allows a court to refuse bail where it is reasonably considered necessary to prevent the accused from committing subsequent offences. Quite clearly, having regard to the separation of powers and to judicial function, it must be the job of the court to decide whether such a course of action is reasonably necessary. In other words, it cannot be enough for a court to decide the garda considers it necessary to refuse bail, or even that the garda's opinion is objectively reasonable. The Constitution requires that the court itself be satisfied, on its own objective reasonable grounds, that bail should be refused. A court cannot be satisfied as to the reasonable necessity of refusing bail unless it is given reasons therefor.

To say a garda's opinion that refusing bail is necessary is proof of necessity and then say the fact a garda holds such an opinion is proof that the opinion is reasonable is to attempt to legislate to remove the judicial function in a bail application in its entirely. In other words, it would not be the court that would decide objectively on bail but a member of the Garda Síochána of a certain rank. I am advised there are significant and serious constitutional difficulties posed by the section in question. I hope we will have the time to deal with them in some detail.

Section 10 inserts a new provision in the Bail Act 1997 to allow a court, when admitting a person who is appealing a sentence of imprisonment imposed by the District Court, to make the recognisance subject to a wider range of considerations. I welcome this development and believe it is very important.

Section 13 allows for the operation of electronic tagging. My Fine Gael colleague mentioned this. What has happened since we last debated this issue? On 16 May 2006, during our consideration of the Criminal Justice Bill 2004, the Minister stated:

I shared the Deputy's ebbing enthusiasm [for electronic tagging] when I studied some of the figures. Rather than walk away completely from this, I thought it better to leave it on the Statute Book in the hope the GPS system would be improved and costs would come down. It is not something into which one would rush or to which one would grant an unlimited line of expenditure. One would need to be sure it would work before investing heavily in it.

He also stated expenditure would amount to €1,200 per month and expressed his concern over this.

This debate arose from the technical briefing note I asked the Minister to provide on the issue, which note he handed to the Opposition spokespersons. The GPS system on which the proposal is based has difficulty working in the presence of tall buildings, low clouds or high trees. This makes it problematic in Ireland. We would have to have Machaire Méith na Mumhan on a fine day. Why have electronic tagging if it does not work and if the Minister, as late as last May, had ebbing enthusiasm for it and would be unwilling to spend money on it?

See this speech in context