Tuesday, 28 March 2006
Criminal Justice Bill 2004: Motion.
A motion to instruction the committee is a technical procedure to enable a committee in effect to consider amendments wider than the scope of the Bill as passed on Second Stage. However, what appears to be a narrow technical motion is important from the parliamentary perspective in that it allows the principle of the new amendments to be discussed in a debate similar to Second Stage. Although these motions to instruct have not always been debated, I welcome the fact that this one will today be debated in the House and hope that will become the norm.
That, notwithstanding anything in Standing Orders, it be an Instruction to the Select Committee on Justice, Equality, Defence and Women's Rights that it has power to make provision in the Criminal Justice Bill 2004 in relation to:
—the Firearms Acts 1925 to 2000 including increasing fines and penalties generally for firearm offences, creating mandatory minimum sentences for certain offences, introduction of a gun amnesty and amendments governing the grant of firearm certificates;
—the Explosives Act 1875 to provide for new offences relating to fireworks and increased penalties;
—offences relating to organised crime including an offence of participating or contributing to any activity of a criminal organisation for the purpose of enhancing the ability of such an organisation to commit or facilitate a serious offence whether inside or outside the State, an offence of committing an offence for the benefit of a criminal organisation and an offence of conspiracy to commit a serious offence;
—the Misuse of Drugs Act 1977 in order to strengthen the existing sentencing provisions for drug trafficking offences, create a new offence of importation of drugs with a value of €13,000 or more, and a new offence of supplying drugs to prisons;
—a requirement in the interests of the common good, obliging persons convicted on indictment of certain drug trafficking offences to notify certain information to the Garda Síochána;
—sentencing including creating a statutory basis for suspended or partially suspended sentences, imposition of a fine and deferral of sentence, restriction on movement orders and electronic monitoring of offenders;
—civil proceedings in relation to anti-social behaviour by adults;
—the Children Act 2001 to provide for civil proceedings in relation to anti-social behaviour by children aged 12 or over and other juvenile justice matters, including amendments to facilitate the transfer of responsibility for the provision and operation of children detention schools from the Department of Education and Science to the Department of Justice, Equality and Law Reform;
—the establishment of a body to be known as the Criminal Law Codification Advisory Committee to advise on the drawing up of a criminal code and monitor its implementation;
—a new offence of possession of an article intended for use in connection with certain offences;
—section 19 of the Criminal Justice (Public Order) Act 1994 in order to expand the existing offence of assaulting or threatening to assault a peace officer to include medical personnel;
—the Criminal Justice (United Nations Convention against Torture) Act 2000 to clarify the meaning of 'torture' as defined in that Act;
—the Courts (Supplemental Provisions) Act 1961 to clarify that a district court judge may exercise his or her powers in relation to his or her district anywhere in the State.
This motion provides that the select committee be instructed to consider the amendments to the Criminal Justice Bill 2004 that I will present. I consider the amendments to be highly important and I am pleased to have the opportunity to address the House on the motion.
Before I outline the main areas involved, I will stress my overall objective in bringing the amendments to the Bill. I am concerned that the criminal law should not only be seen to be up to date and relevant to the needs of modern society, but must also be effective in responding to those needs. We must ensure that the criminal law is able to respond in a way that will retain the confidence of the public and that it provides a strong deterrent to those who seek to undermine the stability and good order of our society. The amendments I propose, together with other reforms I have introduced, especially in the Garda Síochána Act 2005, will go a long way towards achieving those objectives.
This Bill is the culmination of detailed and considered assessment of what enhanced powers the Garda Síochána need to combat crime, in all its manifestations, in the early 21st century. Although the level of headline crime in 2005 is lower than in 2002 by 4.4% and, by comparison with most western democracies, Ireland's crime rate is very low, crime nevertheless remains a significant problem. In 1995, with a population of almost 3.6 million people, there were 29 serious crimes per 1,000 of the population, while in 2005, with a population of more than 4.1 million, this rate had fallen to 24.6 crimes per 1,000 of the population. From that point of view, we should always keep everything in perspective. The crime rate per head of the population has declined quite significantly in the past ten years.
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.
To a large extent, these will pertain to issues already covered by the present set of amendments and to the Bill as initiated. However, I refer to a proposal on reckless endangerment of children arising from the recommendations of Mr. Justice Murphy in the Ferns Report. I also plan to bring forward some minor but necessary amendments to the European Arrest Warrant Act and the Garda Síochána Act.
l am sure the House will agree that my proposals go a long way towards meeting the objective I set out in the introduction to my remarks. They will complement elements of the original Bill which provide powers to search, preserve scenes, detain people for questioning in respect of serious offences and other powers recommended by the late Eamonn Leahy, SC, the husband of my colleague, the Minister for Education and Science, Deputy Hanafin. I pay tribute to Mr. Leahy for the work he did before his death in putting together a programme for the reform for Garda powers. My proposals address key issues, bring the law up to date in important respects and will go a long way towards assuring the public that the issues about which they are rightly concerned are being addressed in a serious and effective way. It is very well to give the Garda Síochána powers, but we must ensure these powers are exercised properly and in an accountable fashion. When the Garda legislation was going through the House, I indicated it was my intention in parallel with the Criminal Justice Bill 2004 to bring in the Garda Síochána ombudsman commission, the Garda inspectorate and other amendments made in light of the Morris report on the events in Donegal.
It is important we have accountability if the Garda Síochána is given extra powers. What we read about as having happened to innocent people in Donegal should not be permitted to recur. I am confident the measures in the Garda Síochána Act 2005, the ombudsman commission, the inspectorate, the duty to account, the new provisions regarding discipline and the other package of reforms of the Garda Síochána will mean the reforms being introduced today are not in any sense a tilt of the balance against the individual and in favour of the State.
All of us as citizens are entitled to have our constitutional rights vindicated. The right to life is just as much the right of the victim. The right to property and for a person's home to be inviolable is not just to be protected with regard to the State. A person must also have protection for all rights, such as bodily integrity, the right not to be raped, wounded, assaulted or mugged. All of these are human rights guaranteed by the Constitution. We must set the balance right between all of our citizens, not just those accused of crime.
Although it has taken somewhat longer than I hoped it would to bring this motion before the House, I am very confident the package of measures being put here today are not extreme or imbalanced, but are necessary. The fight against crime is increasingly difficult in a complex world, and the sophistication of many offenders has grown enormously. We now record every Garda interview, but it should be noted that people may not make any statement for hours on end. We have problems and must have rights to take samples such as DNA samples, rights to preserve scenes and carry out searches and rights to detain people for questioning which are commensurate to the threat posed to our society.
In those circumstances I commend this motion to the House.
I am usually concerned about the very long delay in getting very necessary changes to criminal law on the Statute Book. The way in which the Minister has dealt with this Bill has contributed substantially to that delay.
It is another aspect of the Minister's approach to the crime problem. He has told us today that our crime rate is very low, he has it under control and that it is falling. Last week he produced a survey from his Department which showed that 85% of the respondents were concerned about crime. They were right to be concerned, as more serious crimes are now being committed by more criminals under this Government. More of these criminals are getting away with their actions.
It is important the Minister does not ignore that since the first full year of the coalition Government of Fianna Fáil and the Progressive Democrats, crime levels have risen 19%. This is a fact. Since the same year, the detection rate of crimes has fallen from 44% to 35%. This is also a fact. Even worse, and more worrying for people, is that the type of crime being committed is more violent, resulting in a far greater concern and anxiety for people. I am referring in particular to the increase in the murder rate, which is up 42%, and rape, sexual assault and firearms offences. Firearms offences reached a new level with the shooting gallery on the M50 on Sunday. Considering the issue, one could think of the innocent people who would have been on that highway at the time and could have been caught in a crossfire.
We have a crime problem. Rather than trading statistics that do not really apply, I wish the Minister would accept that we have that serious problem. We should deal with this on two levels, the first being to fill in any loopholes in the law, and more importantly, the provision of proper enforcement. Today we are mainly discussing the question of law, but if I have time I will return to the need for enforcement and proper resourcing of the Garda Síochána, and the provision of the 2,000 extra gardaí which should now be in place, not in two or three years time. Proper equipment should also be provided.
The way in which the Minister has handled this Bill means that necessary changes proposed nearly two years ago are still in legislative limbo. On Second Stage, the Minister spoke of updating our law to ensure criminal offences can be investigated and prosecuted in a way that is efficient, fair and which meets the needs of modern society. Those provisions in the original Bill are still in legislative limbo. Even on Second Stage, the Minister discussed a range of amendments. I looked for such amendments last May, but the first time I saw even a draft of the amendments was last week.
The approach adopted by the Minister was wrong. If the Bill is cleared before the general election, we will end up with a massive piece of legislation. In between we have lost much ground in the battle against crime. Important provisions which I supported in the original Criminal Justice Bill are still not in effect. This important armoury, which would have been available to the forces of the State in the battle against crime, is still not there and will not be there until this Bill goes through all Stages with all amendments. Even at this late stage, two years on, the Minister is telling us he is considering more amendments. It would have been far more sensible to break up this Bill, perhaps putting the original Bill through. Firearms offences clearly need to be dealt with separately.
I have another concern over the approach adopted by the Minister. Perhaps he wants this Bill, if passed into law, to be his legacy, his magnum opus which he can speak of in his declining years. We had two groups before the Joint Committee on Justice, Equality, Defence and Women's Rights making submissions on the Bill. One of them raised concerns regarding the constitutionality of some of these new proposals. I have not studied the 300 pages of proposals in enough detail to lend any credence to this, but the issue has been raised.
I am concerned we will end up with a Bill of 200 or 300 sections and that there could be a referral to the Supreme Court. If there is a referral, my understanding is that any decision on the part of the Supreme Court under Article 26 of a provision being unconstitutional would lead to the Bill falling. This is another danger in the process being followed by the Minister as any single aspect found to be unconstitutional could bring the entire Bill down.
I have another major concern, mentioned in the Minister's presentation and his frequent press statements, concerning mandatory minimum sentences. The Minister highlighted the matter in his speech. It is not realistic to refer to minimum mandatory sentences because they do not exist. As I understand it, and the Minister may clarify this, they will not exist when this Bill becomes law. A minimum mandatory sentence is a sentence which a person who commits a certain offence must be given and must serve. At present, exceptional circumstances can be taken into account by judges exercising judicial discretion. They have exercised that discretion in 96% of the cases that have come before them. How can we call those "minimum mandatory sentences"?
We are following the same course with firearms. I raised the issue at today's meeting of the Joint Committee on Justice, Equality, Defence and Women's Rights and was told that the same situation will apply — the judges will have discretion. The Minister will table amendments which require judges to bear certain circumstances in mind when passing sentence. If that is so, sentences will not be minimum mandatory sentences but ones which judges will pass using their judicial discretion. Is that the best way to nail hardened criminals? Are there not other ways to ensure those who commit serious crime do the time?
I worry that a fixation with an approach that is misnamed will lead us to fail to deal with hardened criminals effectively. A serious debate on sentencing is necessary, though we will not have time today, to examine how we can ensure that those who commit serious violent crime are imprisoned and kept in prison, while those convicted for non-payment of fines are kept out. The Minister's approach to this Bill will not achieve that outcome, despite the reference to minimum mandatory sentences. Why do we not have proper guidance, in the form of a database, or follow the approach in other countries where judges are required to explain in open court why they stray from set tariffs? A range of possibilities is available but the Minister has put all his eggs into one minimum mandatory sentence basket that is leaking all over the place.
I will touch on a number of other issues. The Minister said a year ago he would not provide for a DNA database in the Bill. Despite 300 pages of new amendments this Bill continues not to provide for such a database, which is an essential tool.
I would prefer to see it in another Bill. The Minister seems to be shovelling everything into this Bill, making another Bill unlikely during his term as Minister for Justice, Equality and Law Reform. If there is to be another Bill I call for it to be brought forward quickly because the database is an essential tool in the fight against crime.
The Minister refers to anti-social behaviour orders as if they alone were the answer to anti-social behaviour. I do not object to ASBOs. I have reviewed their operation in other countries and believe they have a minor role in dealing with the problem. I am concerned that the Minister, having made the case for and introduced ASBOs, will sit back and consider his job done. That would be the wrong approach. I have always believed that we need a comprehensive approach to anti-social behaviour, which has become a worrying phenomenon in our towns, cities and estates today. I referred to the increased crime rate since Fianna Fáil and the Progressive Democrats came to power in 1998 but the enormous increase in anti-social behaviour has not been recorded. I do not have figures, but anecdotal evidence from every town and estate makes it clear that there has been an enormous increase. That is why the comprehensive approach, advocated by Fine Gael in its 30-point programme, is needed to confront anti-social behaviour.
I and my colleague, Deputy Kenny, the leader of Fine Gael, have recommended dealing with the issues separately, such as by the introduction of a separate firearms Bill, which I proposed a year ago. The existing Firearms Bill goes back to 1925 and needs to be updated but the changes proposed in that area are a mere add-on to the Criminal Justice Bill. It would have been far more sensible to address it separately. Another opportunity was missed in the amendments to the Explosives Act, which goes back even further, to 1875.
As I said at the outset, Fine Gael has always been associated with law and order and I am happy to continue that association as spokesperson for the party. However, I put more emphasis on order than law. We must fill legal loopholes and we will approach this Bill at its relevant stages constructively. We will try to ensure that necessary amendments are made but I am worried that the Bill contains such a hotchpotch of measures that it will not receive the detailed treatment it needs. There is no point enacting provisions unless they have been carefully examined and we can be sure they will constitute the most effective way to deal with the issues under discussion. Given the vast number of amendments we are confronted with, that may not be allowed to happen. At the very minimum we must ensure that adequate time is allowed to tease out the proposals on Committee and Report Stages. It is very important that there is no guillotine to aspects of the Bill. I invite the Minister to give a commitment in that regard, because if he does so he will get constructive co-operation from my party to ensure we have legislation that is as effective as possible.
There is a danger that, even if we are able so to do, the Minister will lapse into his self-congratulatory mode, believing his own rhetoric and refusing to accept that closing loopholes in the law is only a minor part of the fight against crime. The shootings and murders we have witnessed in the past year or two will not be dealt with merely by changes in the law. A clear message must be sent to hardened criminals that there is a good chance they will be prevented from breaking the law and committing violent crime, and if they do, there is a good chance they will be caught and there is every chance they will end up in jail. Unless this fear exists I do not see such people taking any notice of arcane debates in this House or in committee meetings or changes to the law. The only way to confront these people is to ensure the Garda Síochána is properly resourced and equipped with manpower and equipment to pursue these criminals day and night. Unfortunately, that is not happening at present and that is what concerns me about this motion.
This concern was accentuated by the Minister's opening remarks in which he congratulated himself on the low crime rate and the fact that it is falling. Crime is not low here and it is not falling. The Garda Síochána does not have the resources to properly confront crime. I wish to see the necessary resources made available and I will support any changes to eradicate loopholes in the law but not at the cost of ignoring the basic problems outlined above. Resources and equipment should be made available and used to maximum effect through proper rostering, intelligence-led policing and ensuring a police presence at the right time and place. That has not been addressed sufficiently.
I do not oppose the motion and am pleased these provisions will be debated in committee. The Opposition will constructively table amendments and ensure the proposals are adequately debated. The Minister has chosen to put one gargantuan Bill on the Statute Book and he must accept that it will take considerable time to ensure it is in proper shape. The Opposition will give adequate time to ensure the Bill is on the Statute Book during the lifetime of this Government. If it is not, the Minister will have to bear the responsibility.
I welcome the Minister to the House. I expected to discuss this Bill much earlier and with fewer amendments. I previously articulated my disappointment with the manner in which the Minister produces legislation. He does not seem to have learned his lesson and does not listen to us despite his experience as Attorney General, senior counsel and Minister for Justice, Equality and Law Reform.
It is almost two years since the heads of this legislation were presented — I remember attending the press conference in Government Buildings. The heads of the Bill were presented in April, the Bill was published in July 2004 and it was debated in the Dáil in January 2005 and the autumn of the same year. Now, 15 months after we last spoke on this legislation, the Minister has produced approximately 200 new amendments and the Bill has expanded by a multiple of five or six times its original size. This is a legislative shambles.
As well as the delay and the stop-start approach, the Minister has put the cart before the horse, resulting in Members debating the original legislative offering from July 2004 on Second Stage. There is no opportunity to debate the meat of this legislation, the new amendments. Two years and 200 amendments later the Minister is considering tabling further amendments to prolong the issue further. One cannot emphasise how unsatisfactory that is, given the co-operation by the Opposition in agreeing to take Committee Stage next week, when the Minister wishes to deal with a large part of the Bill. We received these amendments last week — and they are still not properly printed — and it is ridiculous that we must put forward our amendments in the space of a couple of days, given the disparity in the availability of resources to the Minister and the Opposition. We do not have the resources to respond in this fashion, yet we have agreed to co-operate with the Minister because we are keen to see the legislative process expedited. Given the two-year timespan since publication of the heads of the Bill, the Opposition should be given a decent opportunity to prepare amendments.
The amendments contain provisions for major new offences, including anti-social behaviour orders, firearms offences and firearms amnesties, organised crime and drug trafficking. While most of these are welcome, many of them are controversial and the Minister's actions have prevented a full Dáil debate on them. Despite the plethora of amendments produced, many important areas have been omitted. One of the most glaring omissions is the failure to address interviews with suspects in Garda custody. The Criminal Justice Bill 2004 confers extensive new powers on the Garda Síochána and extends the period of detention for questioning from six hours, as provided for in the 1984 legislation, to 24 hours, with an eight-hour break, amounting to 32 hours in Garda custody without judicial supervision or guaranteed access to a lawyer.
The Morris tribunal revealed shocking admissions of serious abuse of two women suspects in Garda custody in Donegal, the bugging of the interview rooms and unauthorised obtaining of telephone records. It is over 25 years since Mr. Justice Barra Ó Briain recommended to the government of the day that all interviews of suspects in custody should be taped. The Minister should consider a statutory provision in this legislation to make audio and video recording of Garda interviews mandatory. Given the technology available, such a measure should not pose a problem. This would prevent abuse of those held in custody and would protect gardaí from false or spurious allegations made against them. Dundalk Garda station, one of the largest in the country, still has no audio-visual equipment in its interview rooms. The two reports of the Morris tribunal influenced the formulation of the Garda Síochána legislation we passed last year, particularly on the ombudsman commission, the inspectorate and the improvement of management structures. All these were highlighted by Mr. Justice Frederick Morris and that was important in the legislation the Minister introduced. Now Mr. Justice Morris has again presented a serious situation as illustrated by yesterday's revelations. I do not know what has emerged today. Today's edition of The Irish Times reports what Detective Sergeant John White said when he withdrew his original statement to the Morris tribunal. He admitted to abusive, excessive and inappropriate language during the interrogation, acknowledged that the spirit and the letter of Garda custody regulations were breached, accepted his conduct fell below acceptable standards and agreed with many claims made by the two women. He said graphic photographs of the body of Mr. Richie Barron were shown to the women and crude accusations of infidelity by Ms McConnell's husband, Mr. Mark McConnell, were made to her and Ms Brolly. Ms Brolly was denied access to her husband and a chair was roughly skidded across the room during Ms McConnell's interview. The lights were switched on and off during the interview and information was kept out of the interview notes. Detective Sergeant White said:
The mood in the Garda station was one of high excitement and anticipation at the prospect of solving the murder. It was made clear to me that my role was to "break" the persons to be interviewed for the purpose of corroborating the suspicions of An Garda Síochána.
He said he has always believed the interview rooms at Letterkenny Garda station are bugged and claims he was supplied with the telephone records of Ms Brolly's husband but was warned not to include them in interview notes because they had been obtained in an unauthorised manner.
This is a litany of breaches of proper procedures and law, and is not a report but one day's revelations of the Morris tribunal. We must take those into consideration and one way to do so is to make a statutory provision that all interviews of suspects are audio-visually recorded. While the Minister has done much good work on installing this equipment throughout the country, when an important station such as Dundalk does not have it, there are obviously major gaps. I mention this as one of the glaring omissions because this legislation gives enormous power to the Garda in many areas including detention and search and we must ensure that safeguards are in place.
There are other important areas of omission. When the Ferns Report was published the Minister made a commitment to bring forward appropriate amendments to the Criminal Justice Bill to deal with the failure to alleviate the risk of the sexual abuse of a child when somebody knows about such abuse but neglects to bring that information to the authorities. While I understood this was to be one of the major amendments, and that the Minister may make a further amendment to that effect, it should be among the amendments before us because the Minister promised it during the Ferns Report debate. There is no mention of indexation of fines, which could easily have been brought forward in this legislation. It would be useful when we wait for such long periods of time.
The DNA database Bill is also coming, like Christmas. There is no provision for something like restorative justice, which would have been good. While we have had to wait a long time, many items are not included.
We can examine the legislation only in the context of what is happening in society. The situation regarding criminal activity is unattractive. While the Minister says headline offences, when looked at in a general context, have not substantially increased over a period, some of them have increased dramatically. In the past 12 months murders have increased by 47%, firearm offences by 20% and aggravated rape by 33% while drugs seizures increased by 20%. The drugs seizure increase is alarming because drug crime is out of control and the junior Minister with responsibility for it is unable to provide proper leadership, show commitment and provide the resources to get the national drugs strategy up and running again. It has lost its morale and is going nowhere. The situation is going from bad to worse.
The increase in gangland killings has been enormous since the Minister's infamous remark about "the last sting of a dying wasp" in October 2004 when we thought everything was under control. Since then gangland murders have increased to an inordinate degree. With what happened on the M50, the tragic killing of Donna Cleary, the explosive devices that have been deployed and the availability and use of firearms, including automatic and semi-automatic weapons, it is only a matter of time before some terrible tragedy takes place in the community. With the settling of minor scores through the use of firearms, Ireland will become something like we have seen in Hollywood mobster films. This is a real concern and it is important we be seen to take substantial action on it.
The detection rate does not encourage. As Deputy O'Keeffe said, the overall crime detection rate has decreased. Last year it was down 1% from 35% to 34%. We do not want it to go in that direction. I got some statistics from the Minister on the detection rate of serious crimes in my constituency and they make unhappy reading. Burglary is one of the major crimes that is increasing while the detection rate is decreasing. Only when one examines such statistics and sees the broader picture does one realise how bad the situation is in certain areas. Meanwhile the Garda is up in arms over the introduction of the volunteer Garda force and claims it is not properly resourced. The Garda does not have proper telecommunications, the promised 2,000 gardaí, stab vests or cars in proper condition, as we saw in today's newspaper reports on the recent tragedy. I hope many of the provisions will be useful — they are certainly logical and overdue.
It is time we had a firearms amnesty and sought to acquire all illegal weapons in the community. It should be made clear that those in possession of illegal weapons after such an amnesty will be hit very strongly with tough custodial sentences. I hope this will be the case.
I do not expect the amendment of the Explosives Act 1875 to have any effect on the possession of fireworks for sale because fireworks are readily available in Northern Ireland, where their sale does not constitute an offence. We have made no attempt to create a common policy for the two jurisdictions. Unless this happens, amending the legislation will not have any effect. Perhaps progress will be made when European standards are co-ordinated, as I understand is being proposed.
I am happy enough with the proposal to deal with organised crime in terms of conspiracy, matters pertaining to domestic law and the United Nations Convention against Transnational Organised Crime. It will be interesting to see how the provisions dealing with offences in terms of contributing or participating in criminal activity or criminal organisation and benefiting from a criminal organisation will operate in practice. It is time we began to target gangland criminal activity in a more focused fashion than is possible at present. I certainly hope the legislation will work.
I am not so sure about the amendments regarding the misuse of drugs and whether they will result in much progress. It certainly seems ill-advised not to alter the value of drugs that will warrant a minimum sentence of ten years, which value was set at €13,000 on the enactment of the 1997 legislation ten years ago. It seems it is necessary to distinguish, in the first instance, between hard and soft drugs, and also to have a threshold of value that would encourage judges not to find loopholes, as they seem to be able to do at present. That mandatory sentences have been imposed in only 4% of cases where they could have and perhaps should have been imposed under the legislation is not very satisfactory.
I fail to understand the argument for having a maximum sentence of seven years for the supply of drugs to prisons, irrespective of the quantity, given that there is a minimum sentence of ten years for possessing drugs to the value of €13,000. There is no logic behind the penalties for those two offences.
I am in favour of the establishment of a register of drug offenders. I like the idea of notifying victims on the release of an offender.
I welcome the provisions to have a statutory basis for the imposition of fines and to defer sentences subject to good behaviour. I am not sure how the restrictions on movement will work out in terms of electronic tagging. This has not been provided for sufficiently.
I do not have time to discuss anti-social behaviour orders, but it is very clear the Government has failed drastically to resource the implementation of the Children Act 2001. Having failed to do so, it must introduce a short, sharp solution, namely, the criminalisation of young people through the imposition of anti-social behaviour orders.
We need a package of legislation and resources that includes leadership and commitment. We have had very little in this regard to deal with crime in recent years. I hope we expedite the legislation in the House and that the Minister will take on board some of my suggestions and those of other Members in respect of providing the necessary gardaí, resourcing the Garda sufficiently, providing the necessary back-up and equipment and instigating real action in the not-too-distant future.
I am substituting for Deputy Cuffe. The last time I did so was rather eventful and I hope, for my sake and that of the Minister, that today will be less exciting.
We are critical of the hotchpotch approach of the Criminal Justice Bill 2004, which throws everything into the mix. It attempts to legislate for a broad range of issues, from the use of fireworks and drug trafficking offences to torture, anti-social behaviour and the Children Act 2001. It is wholly inappropriate that such a wide range of issues be dealt with under one Bill. My colleague, Deputy Cuffe, is critical of the undemocratic manner in which the Minister is forcing this legislation through the House without allowing Members to digest fully the 255 pages of draft amendments he has tabled. Deputy Cuffe believes this to be unacceptable.
Let me comment on a number of aspects of the Minister's speech. He quite rightly spoke of the need for enhanced powers for the Garda Síochána to combat crime. I had occasion recently to meet representatives of the Garda Representative Association and noted that their real complaint concerned the lack of resources. Deputy Jim O'Keeffe was to allude to this but did not do so in the body of his speech. When one reads some of the complaints of members of the force, one will realise they are quite shocking. I find it difficult to believe they do not have batteries for their torches and have to purchase them themselves. During the recent riots in Dublin, their radios did not work, and this is one reason they want an independent inquiry into those riots. They claim they were left in the lurch on the day and that Garda management and the Minister should be held accountable. Many members of the Garda ended up in hospital and it was a terrible, traumatic day for so many of them. They want accountability and in this regard Members, at least all those on this side of the House, would welcome an independent inquiry into the riots. It is very important that we get to the bottom of what happened and understand why certain decisions were made.
Some of the Minister's claims have been rebutted. On the issue of crime statistics, 85% of burglaries, 65% of thefts and 62% of robberies go undetected. I know from my constituency that people have given up going to the gardaí. There have been repeated burglaries in the constituency and many of those living there are at the end of their tether. We now have fewer gardaí per head of population than we did some years ago — this fact has been confirmed in the response to a parliamentary question to the Minister tabled by my colleague, Deputy Cuffe. It is up to the Minister to resource the Garda. To do so we require extra gardaí on the beat, which the Green Party has repeatedly requested.
Deputy Jim O'Keeffe spoke about minimum sentencing to which the Minister referred. Deputy Gregory has often spoken about this matter. Judges are now adopting minimum sentences as the rule rather than the exception. While people are now getting ten-year sentences, they have become the maximum sentences in many cases.
I very much welcome the introduction of a gun amnesty, for which my colleague, Deputy Cuffe, has repeatedly called. It makes sense when one considers what is happening in our city at the moment. It would be a first step in trying to deal with serious gun related crime.
I refer briefly to anti-social behaviour orders, ASBOs. We already have a wide range of measures to combat anti-social behaviour, which are being starved of the resources to allow them work. Rather than introducing new and conflicting solutions to problems, such as ASBOs, let us implement the Children Act 2001 in full and give it a chance to work. ASBOs are also in direct contravention of the Children Act 2001 which contains a plethora of measures designed to deal with the problem of anti-social behaviour perpetrated by young people. Why would the Minister not implement the Act in full rather than introduce irrelevant legislation which will serve to stigmatise and marginalise troubled youngsters further?
Many measures are available to combat anti-social behaviour. I have referred to the Children Act 2001. We should give the juvenile liaison officers sufficient resources, provide more community gardaí, fill the vacant posts on the National Educational Welfare Board and invest in proper facilities in disadvantaged areas as was promised under the RAPID programme. Let us be tough on crime, but certainly let us be tough on the causes of crime. We know that many people involved in drug gangs come from disadvantaged areas.
One of the main causes of anti-social behaviour is alcohol. While I welcome the Minister's miscellaneous proposals to protect staff in accident and emergency departments, one of the main causes of these attacks and problems in accident and emergency units is alcohol. We spend €6.6 billion each year on alcohol and yet the cost of alcohol related problems is €2.4 billion, including anti-social behaviour, absenteeism etc., which represents an enormous cost on society. I would like to see more joined-up thinking from the Government on alcohol. It is our biggest drug problem and yet the Government chooses to ignore it. The alcohol products Bill was shelved by the Government, which was kowtowing to the vested interest of the very strong alcohol industry.
I agree with the comments made about the Morris tribunal. We need to introduce mandatory audio and video recording. The frontline staff dealing with problems in these areas need to be funded properly.
The Government is inserting more than 200 amendments into a Bill with just 38 sections. The time allowed to comment on the new sections and even to digest them has been grossly inadequate. The Minister's war on fundamental rights is at the heart of this overwhelmingly regressive Bill and at the heart of the process surrounding its introduction. The Bill should be withdrawn. If the Minister is hell bent on introducing the wide-ranging provisions contained in this legislation, he should submit a number of focused Bills allowing full Oireachtas scrutiny and debate on each one.
Over the course of the debate on this motion my colleagues will highlight the threats it poses to the most basic and fundamental civil liberties. Deputy Ó Caoláin will outline our concerns relating to the Minister's efforts to roll back on child protection by lowering the age of criminal responsibility, failing to address the plethora of grave problems in St. Patrick's Institution, removing responsibility for the detention of children from the Minister for Education and Science, and lifting restrictions on the identification of children in criminal proceedings.
Deputies Ó Snodaigh and Ferris will examine the motives behind and the potential effectiveness of new sections relating to gangland crimes, conspiracy, drugs, sentencing and electronic tagging. They will focus on the human rights compliance of the proposed legislation or rather the non-compliance of same.
I wish to focus on the provisions for anti-social behaviour orders contained in the new sections, Parts 11 and 13, of the Bill. ASBOs are flawed in that they are contrary to fundamental human rights and they do not work. Sinn Féin opposed the introduction of ASBOs to the Six Counties and will continue to oppose their introduction here. The Irish Youth Justice Alliance, a coalition of organisations and individuals who work towards reforming the juvenile justice system, has outlined many of the problems with ASBOs. Among these are the fact that as ASBOs involve the imposition of penal sanctions for the breach of an order made in civil proceedings, they are inconsistent with the European Convention on Human Rights. Furthermore, the conditions imposed by an ASBO may involve a disproportionate interference with personal and private rights, and civil liberties.
Breach of an ASBO is a criminal offence but because ASBOs are civil orders, the rules of evidence are reduced and the burden of proof is on the balance of probabilities rather than beyond reasonable doubt, which undermines and denies the right to a fair trial. In cases involving criminal proceedings against children in particular, the normal safeguards should be augmented and not diminished. ASBOs run contrary to the UN Convention on the Rights of the Child and to international standards and guidelines on youth justice.
In particular, the Government's proposals run counter to the central logic of the Children Act 2001 which, by the admission of the Minister of State with responsibility for children, is an Act that "is regarded as setting a framework for a modern and progressive youth justice system [and] reflects best international practice". The Children Act 2001 was 30 years in the drafting. In the past five years, the Government has failed to put into operation and resource the Children Act.
While the definition of anti-social behaviour employed by the Minister is a marginal improvement on that used by the British, it is still too vague and the core problems I have outlined still stand. In addition, the stages prior to the application for an ASBO on a child suffer from an unfettered assumption of Garda infallibility. This is neither in the interests of the child nor in the interests of the Garda Síochána. Of equal importance is that it is not in the interests of public confidence in it.
In Tallaght today before coming to the House I met a single mother of one child who told me of her family having been petrol bombed. The Garda was investigating the incident. Her house was petrol bombed because young thugs from the area called to the house looking for money for cigarettes and when she told them to get away from the door, a petrol bomb was thrown at the house. Another woman to whom I spoke in recent days had her garden wall knocked down and every night young thugs sit on bollards beside her house shouting, roaring and basically terrorising her in her home.
The Government is attempting to legislate away complex problems that, by contrast, Sinn Féin recognises require the resourcing and implementation of existing laws and investment in communities. The Bill, old and new, amounts to a grave and disproportionate assault on fundamental human rights.
It gives me no joy to make the comments I am about to make. When the members of Cabinet were announced, I warmly welcomed the appointment of the Minister for Justice, Equality and Law Reform. However, since then, to put it mildly, I have become disillusioned. Public confidence in the rule of law and the ability of the justice system to deal with the current lawlessness is at an all-time low. When mob rule is rampant, society demands and expects to receive leadership. That should come from Government and specifically from the Minister for Justice, Equality and Law Reform. It is very disappointing, therefore, that the Minister's recent utterances did not address the current lawlessness enveloping our country. His recent hysterical, over the top, inappropriate and irresponsible comments did not relate to crime but to statistics concerning the number of gardaí in the Dublin region.
He has also spoken recently about the type of person responsible for the attacks on his party's headquarters in Dublin. It was embarrassing, to put it mildly, to see our Minister for Justice, Equality and Law Reform making a fool of himself in a bullying manner on national television and, in the process, letting himself and all of us down. I say "our" Minister for Justice, Equality and Law Reform because he is this country's Minister for Justice, Equality and Law Reform. He should act accordingly, rather than like some local tribal warlord whom one dares not cross, question or disagree with. Our citizens are entitled to be represented by Ministers who have a capacity for balance, understanding and leadership. The Minister for Justice, Equality and Law Reform has not displayed any of those qualities in recent times, unfortunately. He has shown himself to be self-centred, dictatorial and intolerant of views that are contrary to his own. As Ireland is a democracy, people are entitled to make up their own minds on issues and express their views without fear. The Minister for Justice, Equality and Law Reform should take the lead in protecting the rights of our citizens and ensuring that freedom of expression is guaranteed. The protection of the rights of citizens should come without any qualification, should be unequivocal and should not be accompanied by any side-swipes unbecoming of a Minister for Justice, Equality and Law Reform.
When the Criminal Justice Bill 2004 was published, it comprised 38 pages. The amendments to the Bill which have been published by the Minister comprise a further 326 pages, which means they are 8.5 times the size of the original Bill. The House has been asked to take this legislation seriously, but how can it do so? How can Members be confident that the Minister knows what he is doing when he has made such a monumental cock-up when introducing legislation to this House? His mistake has been highlighted by the need for him to issue bizarre instructions to the Select Committee on Justice, Equality, Defence and Women's Rights telling it that it has the power to make provisions in the Criminal Justice Bill 2004 in respect of 13 separate matters. It is unacceptable that legislation is being put through the House in such an incompetent manner.
The continuing evolution of serious crime in the global economy has become a subject of great concern. It has been estimated that the annual turnover of what is known as "organised crime" is €1,200 billion. Organised crime, which has become transnational as criminals have taken advantage of the globalisation of the world's economies, is part of criminal behaviour known as "group delinquency", which is a complex phenomenon that is difficult to distinguish from the operations of organised gangs and mafias. Contrary to common perception, organised crime is not a modern phenomenon. It evolved in the 17th and 18th centuries, when crime gangs engaged in illegal group activities across central Europe. The Sicilian Mafia was the linchpin of organised crime in the New World, particularly after the prohibition of alcohol in the United States, which allowed crime families to dominate the alcohol market and various other trades which generate enormous profits.
Ireland has not escaped the phenomenon of transnational organised crime — organised crime that is carried out across borders — which is an aspect of organised criminal activity that has flourished over the past decade. The secret and illegal trafficking of human beings for involuntary servitude in places like Ireland is the world's second most profitable enterprise, after drug trafficking. We all remember that the bodies of eight people, who had suffocated over a period of time, were found in a freight container in County Wexford five years ago.
It is natural that eliminating the trafficking of human beings should be a priority, but we should not lose sight of our obligations to genuine asylum seekers who are fleeing persecution. There is an urgent need to impose stiff penalties on those involved in the recruitment, transportation and harbouring of people for the purposes of exploitation. I consider the proposed fine of €13,000 in cases of drug trafficking to be somewhat conservative, when one considers the massive profits that can be made from this insidious trade. If a criminal knows he will get 15 years in prison for firing a gun, he might think twice before he pulls the trigger. I know we have heard about people who were off their heads when they pulled the trigger, but we should not forget that many of the people to whom I refer are not off their heads when they use firearms.
I agree with the proposed imposition of mandatory fines and penalties for firearms offences. I suggest that a minimum sentence of five years be imposed on those who use guns in criminal activities. Such a term of imprisonment would be in addition to any sentence imposed for the crime itself. I propose that the five-year term be increased to ten years if a gun is fired and to 15 years if someone is shot. Such penalties would make people think twice. That illegally obtained automatic handguns are the weapons of first choice for most criminals was shown graphically last weekend on the M50. I think all Deputies know about the dangerous situation that arose on that occasion. Increased penalties like those I have proposed should also apply to serious offences committed with any weapon — not just a gun.
Brian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Dublin West, Fianna Fail)
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The amendments to the Criminal Justice Bill 2004 include a range of amendments to the Children Act 2001, which arise from a youth justice review initiated by the Minister, Deputy McDowell, and me in October 2004. A project team was established in the Department of Justice, Equality and Law Reform to review the delivery of youth justice services and to make recommendations on how the structures could be improved. The project team examined the system in place, consulted widely in the statutory and non-statutory sectors and compared our structures with best international practice. The team's findings indicated that the Children Act 2001 provides a sound legislative basis for a modern and progressive youth justice system that compares favourably with international practice. Most Deputies will agree with that. However, the team also found that the structures in place for the delivery of services under the Act and throughout the youth justice system are fragmented and involve a wide range of Departments and agencies that do not always work together in an effective manner.
The report of the youth justice review suggested that a single body was needed to provide clear and effective leadership across all youth justice services and to bring a coherent and co-ordinated approach to the delivery of services to young offenders. It recommended that a new youth justice service be established to provide this leadership and to develop a national strategy for youth justice. The review further recommended that the new service should assume responsibility for managing services across all areas of youth justice, including detention, community sanctions, restorative justice and the implementation of the outstanding provisions of the Children Act 2001. I brought some proposals to the Government last December on foot of the review. The Government agreed a number of major reforms to the youth justice system, including the establishment of an overall youth justice service with responsibility for all youth justice services. The Government also agreed to the drafting of legislative amendments to give effect to the proposals.
The fundamental decision to establish a youth justice service with responsibility for all youth justice matters was taken by the Government. For the first time since the foundation of the State, a single youth justice service will exist within a Government office — the office of the Minister for children — to administer these services. This is a remarkable development. I take considerable pride in the Government's decision to put in place a single youth justice service, which is fundamental to making progress. Taking responsibility for the implementation of the youth justice provisions of the Children Act 2001 was ducked when the Act was passed. It was ducked in the sense that it was not clearly or coherently stated that an agency or service was put in charge of the implementation of the Act.
The new youth justice service, which has been established as an executive office of the Department of Justice, Equality and Law Reform, will be located with a number of other services for children in the office of the Minister for children. The office, for which I will have responsibility, will place the interests of children at the heart of government and will build on what was achieved under the national children's strategy. I have outlined the responsibilities of the new office. I remind the House that the office will be responsible for policy and legislative work on child welfare and protection under the Department of Health and Children. It is essential that such work should be located with the youth justice work that will be devolved to me from the Department of Justice, Equality and Law Reform. The Departments in question will retain responsibility for these areas, but the innovative approach being pursued will provide for a more integrated and strategic approach to this issue. I attend Government meetings on these matters on a regular basis.
On the proposed amendments to the Children Act 2001 to be made in the Criminal Justice Bill 2004, the first set of amendments about which I will speak provides for the transfer of responsibility for children's detention schools from the Department of Education and Science to the Department of Justice, Equality and Law Reform, in which the youth justice service will be located. This will bring the schools in question under the same administrative structure that will develop the youth justice strategy, manage the delivery and development of non-custodial sanctions and co-ordinate youth justice services at national and local levels. It has the added benefit of bringing detention services under the strategic direction of the office of the Minister for children to ensure that detention is addressed within the wider context of children's services generally. The amendment to the definition of "Minister" provides for the transfer of these responsibilities. A number of other amendments follow consequentially from the transfer.
Education, not detention, is the core business of the Department of Education and Science. Transferring responsibility for detention to the youth justice service will allow the Department to concentrate on delivering educational services to young offenders, both in custody and within the community. The new section 159A of the Act of 2001 provides for the vocational education committees to assume responsibility for the delivery of educational services within the children detention schools. The VECs are best placed to deliver the continuity of education and training services in detention and the community that these children need. The Department is also developing an education strategy to address the wide range of educational needs of offending children.
The second matter, consequential on the first I have outlined to the House, is the abolition of children detention centres. As a consequence of the transfer of responsibility for detention for those under 16 years, the Department of Justice, Equality and Law Reform, through the youth justice service, will have responsibility for the detention of children up to the age of 18. Responsibility for 16 and 17 year olds will transfer to the youth justice service from the Prison Service. Under the Children Act 2001, children aged 16 and 17 years were to be accommodated in detention centres, separate from adult offenders, under the Department of Justice, Equality and Law Reform. While the centres were separate from those in which adult offenders were incarcerated, they could be built and constructed as integral parts of prison complexes, with a simple physical separation. This group of 16 and 17 year olds were necessarily separated from children under 16 because such children were the responsibility of another Department. Under the new arrangements, with one Department responsible for the detention of all children up to the age of 18 years, the separation at age 16 becomes redundant.
A series of amendments remove references to "children detention centres" from the Act, leaving a streamlined system based on a child detention school model for all children detention services. This model is focused on addressing the underlying needs of the offending child or youth and rehabilitating him or her. Children detention schools combine care staff with a secure setting which offers facilities and programmes specifically tailored to meet the needs of children. Under these new structures, no child will be detained within the prison system. Neither will any child be detained in an annex to the prison system. What was envisaged in the 2001 Act was that 16 and 17 year olds would be detained in what were dedicated annexes to the prison system. That is no longer provided for under this legislation. Provision is contained in the legislation to ensure St. Patrick's Institution can continue to be used on an interim basis, pending the development of the new detention schools that will be required. The underlying legislative provisions, however, can be commenced with alacrity. The new structures provided for in the amendments focus on addressing the needs of offending children within the wider strategic environment of children's services and create a single cohesive system for youth detention services.
I turn to the subject of the age of criminal responsibility. The age of criminal responsibility provided for in the Children Act 2001 is 12 years. I am anxious to ensure this aspect of the Act is commenced within three months from the enactment of this Bill. In my consideration of this issue several practical problems have arisen. There is a need to secure effective control of all prosecutions of children under the age of 14 years. Accordingly, it is proposed to require the consent of the Director of Public Prosecutions before proceedings can be taken against a child aged under 14 years. I have consulted the Director of Public Prosecutions as regards this proposal and he is agreeable to it. The current position is that the Garda Síochána can prosecute a child under the age of 14 years without the leave of the Director of Public Prosecutions.
It is essential that there be a measure of control. Children aged 10 or 11 years who engage in criminal behaviour should be accountable under the juvenile diversion programme for their behaviour. One of the effects of the original provisions of the 2001 Act was that a juvenile liaison officer could not have any dealings with a child aged 10 or 11 years who engaged in criminal behaviour. This is not a reasonable position and the provisions in the 2001 Act are to be modified to permit children, aged 10 or 11 years, to be admitted into the Garda diversion programme. Admission into the programme does not involve any conviction or culpability or reference to the character of the person concerned. The very low number of ten and 11 year olds who engage in serious criminal behaviour such as manslaughter or rape may be charged for their behaviour under another modification I am introducing to the 2001 Act. That said, the intention, subject to these reasonable amendments, is to commence the entire provision with three months of the Bill's enactment.
I turn to the subject of anti-social behaviour orders, which were subject to considerable discussion in the course of preparation of these amendments. The Minister for Justice, Equality and Law Reform, Deputy McDowell, asked me to look at this issue and devise a scheme which would be consistent with what was envisaged by the Oireachtas in the Children Act 2001. Despite this, the suggestion has constantly been made by many in the public debate that the Minister is introducing the same type of order for those under 18 years as for those over that age. That is not the case. The amendments will entail the insertion of a new Part into the Children Act to provide for anti-social behaviour orders for children aged between 12 and 18 years. The Minister in his contribution to this debate has pointed out that the proposal for anti-social behaviour orders in the case of children is framed in the context of the overall philosophy and policy that underpins the Children Act. Every effort is made to provide an opportunity for the child and his or her parents or guardians to address the behavioural problems in a way that minimises contact with the criminal justice system. These proposals will also ensure there will be full parental involvement at all relevant stages.
Before outlining in more detail how the arrangements will work, I want to say a few words about the definition being used for anti-social behaviour. Anti-social behaviour will arise where a child causes or is likely to cause harassment or where significant or persistent alarm, distress, fear or intimidation is caused or is likely to be caused to anther person. It will also arise where there is significant or persistent impairment in the use and enjoyment of their property by the other person as a result of anti-social activity. I am ensuring a series of checks and balances is included because I do not want a situation where unreasonable complaints by, for example, some householders would result in an order being issued. While it is true that the effect of the behaviour as experienced by the householder must be a critical factor, it will, in the first instance, be a matter for the Garda to determine if, in all the circumstances, a complaint is well founded. Ultimately, it will be a matter for the court to decide. I am keen to ensure young people should not feel harassed and victimised by the new procedures but I am equally determined that we must put in place effective remedies that will address the serious problems in many neighbourhoods and town centres.
Turning to how the procedure will operate, the first step will entail a garda issuing a "behaviour warning" to the child. A warning may arise from a complaint or the direct observation by the garda of the activity in question. The warning will remain in place for three months. In cases where, subsequent to the warning being breached, an order is sought from the court, the warning will remain in place until the court reaches a decision. After a warning has issued, the local Garda superintendent may convene a meeting to discuss the child's behaviour. The meeting will be attended by the child, his or her parents or guardian, the garda who issued the warning and, as appropriate, the juvenile liaison officer and any other person whom the superintendent thinks may assist the child. The meeting may result in a "good behaviour contract". The superintendent will also have the option of referring the child to the diversion programme. This can happen at any time after the behaviour warning has issued. Where the superintendent believes a placement on the diversion programme would not be appropriate, he or she may apply to the Children's Court for an anti-social behaviour order. The parents or guardians will be required to attend any court hearings. The court will apply the civil standard in the proceedings, thus ensuring the child will not acquire a criminal record in the event of an order being granted. The court may grant the application if it considers an order is a reasonable and proportionate remedy. A child who breaches an order will be liable to a fine of up to €800 or €1,500, if costs also arise. Full rights to appeal against an order or have it varied are being provided. Special arrangements are being included to ensure legal aid is available when necessary.
I have outlined the main aspects of the new procedure. I expect we will have a further opportunity to consider the details of the proposals when the committee examines these amendments. However, it will be clear that the local superintendent will have a key role to play. I am sure we will be able to rely on the good judgment and experience of the Garda when it comes to operating the new arrangements. It is also very clear that an application for an order will arise as a last resort, after several other options have been considered and found not to be suitable. It is also worth saying that if the activity in question is sufficiently serious, the option of bringing criminal charges will remain unaffected by the introduction of anti-social behaviour orders.