Dáil debates

Wednesday, 29 March 2006

Criminal Justice Bill 2004: Motion (Resumed).

 

The following motion was moved by the Minister for Justice, Equality and Law Reform on Tuesday, 28 March 2006:

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.

8:00 pm

Photo of Gerard MurphyGerard Murphy (Cork North West, Fine Gael)
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If legislation and regulation could solve our crime problems we would soon have a crime-free society. The Minister constantly boasts about the amount of legislation he has introduced. Although much of it is welcome and may assist the Garda in combating serious crime, so far this does not seem to be the case. Serious crime is increasing, detection rates have decreased and most ordinary, hard-working citizens despair of the Government's ability to do its job. The Minister speaks much about his ability to solve the problem, confront vested interests and get the job done. As well as introducing a raft of legislation, he tries to manage a propaganda campaign depicting himself as the law and order man of the century. Since he and the Minister, Deputy O'Donoghue, are the only two people to have held the Ministry for Justice, Equality and Law Reform in this relatively young century, there may be hope for us as the century moves on.

For some years there has been a propaganda game and an effort to give the impression of progress despite the deteriorating situation. While I do not suggest that the propaganda campaign resembles that of another regime in the 1930s or 1940s, I worry that sometimes extreme right wing talk and curtailment of civil rights and liberties might have tones of similar right wing regimes of that period. Thankfully these regimes did not last and I am equally confident that the regime of the Ministers, Deputies O'Donoghue and McDowell, will soon end.

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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The Deputy may dream on.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Photo of Johnny BradyJohnny Brady (Meath, Fianna Fail)
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I wish to share time with Deputy Cooper-Flynn.

Photo of Pat CareyPat Carey (Dublin North West, Fianna Fail)
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Is that agreed? Agreed.

Photo of Johnny BradyJohnny Brady (Meath, Fianna Fail)
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There have been major reductions in levels of crime in recent years. However, criminal gangs are still operating in our society, engaging mainly in drug-related activities. The Government and the people are not prepared to tolerate gangs, drug barons and other criminals. Since 1997 the Government has been tough in dealing with these issues. We have recruited more than 1,700 extra gardaí into the force and the taxpayers must pay for them every year. Almost €1 billion is spent in the justice area. We provided more than 1,200 extra prison places. We have enforced some of the toughest laws ever, to the extent that those involved in civil liberties groups have been dubious about them.

In spite of this, in the area of criminal law, among others, we continue to put laws on the Statute Book and provide the necessary resources to implement them. It is essential we continue to review, reform and examine the issues that lead to gangland crime. If it is a question of laws, resources and the dedication of the Garda, the Government must continue to build on its record. Over the past few years the Government has taken many of the criminals off our streets and out of circulation. Many of them are in jail serving long sentences.

However, we face a new and dangerous problem today. A new seemingly fearless breed of criminal is operating in modern Ireland. This new strain of criminal is vicious and extraordinarily ruthless. These people think they are above the law. The good and decent people of this country have had enough. We must take action, focus on the problem and create real and concrete solutions. The amendments to the Criminal Justice Bill are aimed at tackling the changing nature of criminality head on.

The Garda has never been better staffed or resourced. Under the Opposition's watch Garda numbers fell by 67. Apart from providing the Garda with suitable resources it is vital the force is provided with every possible power to deal with these gangs. Members of the force risk life and limb every day. As elected representatives it is our duty to ensure the necessary legislation is in place to help them meet new and emerging challenges as best they can. The Criminal Justice Bill will do this with measures such as DNA profiling, increased powers of detention and the area of search warrants, among others. This area is essential in assisting the Garda to do its job.

Amendments to the Bill are also aimed at tackling gangland crime which has had such devastating consequences in recent months. All Members of the House have been shocked and appalled by recent events. The plan to include a gun amnesty is definitely a step in the right direction. A similar amnesty in Britain in 2003 saw more than 43,000 guns and other offensive weapons handed in by members of the public. These gangs have no regard for the safety of the public and have shown they are capable of mowing down anyone who gets in their way. These measures will be accompanied by the introduction firearms certificates. In future anyone who wants to own a gun will need to register with the Garda Commissioner.

The link between gangland crime and drugs is inextricable. The sale and importation of drugs is clearly fuelling gangland crime which has had devastating consequences in communities across the country. This Government introduced ten year mandatory sentencing for drug dealers. At the time the measure was opposed by Members the Opposition who now claim the Government has not done enough to tackle crime. They vote against measures that will strengthen our Criminal Justice Bill, yet propose nothing new. When in Government they rejected proposals made by the late Eamon Leahy for dealing with criminal assets and subsequently copied practically the entire contents into the Bill. If this is not a childish attempt to score political points I do not know what is.

Under the Bill, the ten year mandatory minimum sentence for drug trafficking, possession of drugs for sale and supply will be strengthened. A new offence of importing drugs having a value in excess of €13,000 will be created and will also carry a minimum ten-year sentence. Despite what the Opposition would have people believe the Government is tough on crime and tough on criminals.

As I said before the Bill is intended to address problems in a changing Ireland. Anti-social behaviour orders represent a vital measure needed to deal with thugs who are terrorising housing estates, destroying public property, parks, green areas and local amenities. Contrary to claims by the Green Party that ASBOs are eroding our civil liberties the Minister for Justice, Equality and Law Reform has given his assurances that anti-social behaviour orders will only be used as a measure of last resort and will not be issued without the authority of a garda of superintendent rank or higher. What is being planned here is significantly different from what is being used in Britain. I am confident that ASBOs have the support of the people on the ground and will be an effective weapon in helping communities who feel imprisoned in their homes.

In recent months Fine Gael has made numerous statements on anti-social behaviour and crime. However, if the party was really serious about tackling these issues it would support Government proposals to introduce anti-social behaviour orders and other anti-crime measures in the Dáil. Its only proposals of late have been to ban hoodies and to legalise brothels. These are just cheap attempts by Deputy Noonan and his party to grab headlines.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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Rubbish.

9:00 pm

Photo of Johnny BradyJohnny Brady (Meath, Fianna Fail)
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Perhaps Fine Gael is reluctant to support the Government's stance because it is more interested in ensuring that it does not upset some of its new pals in the Labour Party, who cannot seem to agree among themselves on the issue, and in the Green Party, who are strongly opposed to anti-social behaviour orders, than it is in dealing with the issues which are blighting communities across the country.

The proposed amendments to the Criminal Justice Bill 2004 represent a fair and balanced response to this country's pressing and concerning social problems. There is a minority of parents who blame gardaí, teachers, the clergy, the Government and politicians of all parties rather than themselves for the misbehaviour of their children. When I am driving through some towns between 10 p.m. and midnight, when it is too late for children to be outdoors, it grieves me to see ten, 11 or 12 year old youngsters roaming the streets. I often ask myself where their parents, who do not seem to be taking any responsibility for them, are. I thank God that such parents are in a minority, but their failures are leading to serious problems like anti-social behaviour. Elderly people in towns and villages and in the countryside are being terrorised. A law should be introduced to ensure that the parents of children who engage in such activities are fined or imprisoned if they are not fit and capable of looking after their youngsters. It is unfortunate that I must say that. I thank God that the people who act in such an irresponsible manner constitute no more than a minority.

Photo of Beverley FlynnBeverley Flynn (Mayo, Independent)
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I am glad to have an opportunity to speak on the Criminal Justice Bill 2004. I support the amendments which have been proposed by the Minister for Justice, Equality and Law Reform. Everyone is hugely shocked that firearms seem to be so easily available in society. Recent horrific events involving firearms have caused alarm among the public. I welcome the Minister's decision to introduce a mandatory minimum sentence of between five and ten years for certain firearms offences. It is an indication of the Minister's willingness to deal with what has become an intolerable situation in a tough manner.

I also welcome the proposed introduction of a firearms amnesty, although we will have to wait to see whether it will be successful in encouraging people to hand in their firearms. It is important to assure people, as the Minister has done in the Bill, that the firearms in question will be forensically tested and that action will be taken if it is found that they have been used in serious crimes. I accept that every crime involving a firearm is serious. It is important to give such assurances in the context of the introduction of this amnesty.

People who hold licensed firearms have been quite sloppy in their storage of them over the years. That phenomenon is not just found in rural Ireland but it is not uncommon there. I am familiar with instances of shotguns being stored in unlocked cupboards, propped up against walls and left hanging around houses. Some people have a careless attitude to serious weapons. Many cases of this nature have been highlighted by the media in recent times. I do not want to get into the detail of the Padraig Nally case in my constituency, but lessons about rural policing can be learned from it. Many elderly people and people living on their own, especially in rural areas, feel insecure. They do not think the Garda is providing an adequate rural policing service. In many cases, they keep licensed firearms for their own security and to protect them in their homes.

It important that we should learn the lessons of the Nally case. When live bench warrants are issued for the arrest of certain individuals, they should be followed up. We need to improve the rural policing service, for example by ensuring that more gardaí live in the communities they police. I am aware of cases in my constituency of gardaí living in towns 20 miles from the localities they serve. For such gardaí to drop out to those localities for a while before returning home is not enough to reassure elderly people and people who live on their own that they are safe.

I would like to speak about the existing mandatory sentencing provisions in respect of drugs offences. The Department of Justice, Equality and Law Reform's research into the use of the mandatory ten-year sentence has found that an average sentence of between six and eight years was imposed over the course of 55 cases which were brought before the courts. The wider community has been given the impression that mandatory sentencing does not work. I understand that the relevant legislation allows mitigating circumstances to be considered, thereby reducing the length of the sentences imposed in some cases.

I welcome the Minister's attempt at a balancing act in this legislation. He is trying to act tough in respect of existing offences by ensuring that the mandatory ten-year sentence is implemented. Having said that, the mandatory sentencing provisions in the existing legislation mean that when people are caught, they are pleading guilty and saving a great deal of court time. The provisions also mean that many convictions are being successfully secured, which might not ordinarily happen if every case were fought in the courts.

Some positive developments have resulted from the existing legislation, but we are right to take an extra step to strengthen it further. Given that drugs are so freely available and there is so much gang warfare involving drugs, we need to reassure people that we are taking action. While these provisions have a preventative effect when people are caught, we want to deter people from getting involved in such crimes in the first instance. If it becomes clear that people are getting sentences of ten years or more in the courts, others might become convinced that they should not get involved in this way of life.

I welcome the Minister's proposal to introduce a drug offenders' register, which will be an important element of the Garda's attempts to keep tabs on offenders in this area. It will mean that offenders will be unable to move around the country to operate freely in different localities, which is a problem not just in cities but also in rural communities. Drugs have infiltrated every aspect of our society. It is important that we send a strong message that anyone who is getting involved in drugs offences will be punished in the severest way possible.

I think there is a great deal of public support for the introduction of anti-social behaviour orders. I am concerned about some aspects of the orders because I am not sure they will answer all our concerns. It is clear that people in our communities are fed up of anti-social behaviour. The residents of a housing estate in my home town of Castlebar contact the Garda daily to complain about the consistent harassment they suffer at the hands of a small number of people. Fire crackers have been thrown in doors, loud parties have been held, people have been harassed and fear has been instilled in the local community. When members of the Garda drive into the estate, the residents retreat behind their locked doors because they are scared to be seen to speak to gardaí in case they attract the attention of the individuals in question. They know that if they become the subject of further harassment, there will be a great deal of nuisance in their lives.

The introduction of anti-social behaviour orders is important. I am concerned that the definition of the orders in the Bill will give the Garda quite wide discretion in the use of the orders. Many people are concerned, having heard recent evidence from the Morris tribunal, that the Garda should use its discretion properly. We do not want vulnerable people who live in difficult circumstances always to bear the brunt of the orders. Many people who cause problems with their anti-social behaviour do not come from the low income sections of society. In many cases, they come from the high income end of society. The use of anti-social behaviour orders and civil orders through the courts should be an important and effective deterrent for people from all social classes. I look forward to seeing how these orders will work in practice.

The introduction of anti-social behaviour orders is an indication that the Minister is getting serious about dealing with problems caused by behaviour that might not constitute a criminal offence, but it is causing great upset among people in every part of the country. I live in a town of 15,000 people in the west. I assure the Minister that the problem of anti-social behaviour is as serious in that town as it is in some cities. I am afraid that much of the behaviour in question results from a lack of facilities for young people.

It is important for the Minister to introduce anti-social behaviour orders, but it is also important for him and his Cabinet colleagues with various responsibilities in other Departments to put in place facilities for young people so that they do not have to hang around on the streets. The only thing that 14 and 15 year olds in my home town can do is walk the streets and hang out around takeaways until all hours of the morning. Unfortunately, when there are gangs of young people in that situation, invariably trouble breaks out. I recall discussing with the local Garda why there were not more gardaí on the beat. It was explained to me that on any particular rota there might be 13 gardaí. There might be one monitoring the switchboard, one driving the patrol car, one out sick and another on long-term sick leave. It added up so that there were only two people available to walk the streets and deal with crime. I know this is something of which the Minister is well aware, given the proposed introduction of the Garda reserve. A Garda reserve might well be able to fulfil some of the functions currently being carried out by gardaí who would be much better deployed in looking after the people in our communities. A shop window might be broken and a garda cannot be found for half an hour. However, a car parked illegally on the street for five minutes will get a ticket. It may be a cynical attitude, but that is the way matters lie. When a crime is perpetrated against a person there is nobody to be found, yet sometimes one can get caught for a minor offence such as parking illegally within the shortest possible time.

The Minister introduced other amendments dealing with superintendents being able to grant search warrants. I am not sure I am entirely comfortable with that. Obviously there is evidence available to the Minister whereby it may be impossible to get a member of the Judiciary to hear a case outside hours in the middle of the night. It is important to have a system in place to provide a check on what is being done. As regards the granting of a search warrant, it would be preferable for that to be done by bringing matters into court and I have some concerns in that regard. The amendments the Minister proposes are broadly welcome and we can only know in the fullness of time how they turn out in practice.

Photo of Mary UptonMary Upton (Dublin South Central, Labour)
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I welcome the opportunity to speak on this motion this evening. With the Ceann Comhairle's permission, I want to share time with Deputy Penrose.

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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Is that agreed? Agreed.

Photo of Mary UptonMary Upton (Dublin South Central, Labour)
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The Minister asked the House, as he introduced the Criminal Justice Bill for its Second Reading in February 2005, to accept the bona fides of his motivation in seeking to introduce a Bill substantively different on its Second Reading from what first came before the House. Now a year later we are being asked to approve a measure which will force a committee of this House to consider legislation that bears even less resemblance to the Bill which received a First Reading here. Having already introduced substantial amendments to the legislation, the Minister now has to ask the House to vote on driving a coach and four through Standing Orders. He finds himself in this anomalous situation because he wants to introduce more than 171 pages of new amendments to the Bill, as initiated.

The Minister is setting a precedent for the future that will be welcomed by anyone seeking to undermine democracy. In the words of the Irish Human Rights Commission: "bringing forward substantial amendments of this scale at the Committee Stage of the legislative process inhibits the proper consideration of the issues by the Oireachtas, as the effect of introducing substantive changes in this way is to circumvent the earlier legislative stages".

There may well be other measures that, with a little bit of tweaking, deserve to be passed into law by this House. However, there are no measures in this Bill whose necessity could not be foreseen when the original scheme of the legislation was approved by Government in 2003. If this motion is passed, we shall never have the opportunity to properly debate the issues involved. I question whether the Minister has fully thought through the implications of introducing such elephantine amendments to this Bill upon future generations of legislators in this House. Such legislators may be more interested than the Minister is in circumventing inhibitions on the freedom of the House to introduce undemocratic and anti-human rights legislation. I also question whether, given the long germination period of this legislation, he has properly considered the wide ranging human rights implications of the content he seeks to introduce into this Bill at this stage.

The Irish Human Rights Commission has stated the following general point of principle as regards criminal justice legislation: "Any legislative proposals to increase the powers of the Garda should be subject to careful scrutiny in order to ensure that the correct balance is struck between, on the one hand, the rights of everyone in society to have a police service capable of effectively detecting and prosecuting crime and, on the other hand, the rights of the individual to the enjoyment of the full range of his or her human rights and freedoms."

One of the chief safeguards the Minister has cited as an assurance that the correct balance is being struck between the right of people to have an appropriately empowered police force, on the one hand, and the right of individuals to the whole range of their human rights, on the other, is the Garda Ombudsman Commission. Yet the Garda Ombudsman Commission is not yet tested. How do we know it will work in its present form when confronted with existing forms of Garda misbehaviour? For instance, if the Minister has his way, a garda will be able to take a swab of DNA from the inside of a person's mouth without his or her consent. If the person keeps the mouth closed, then the garda will be able to use reasonable force to open it and swab him or her. Merely by keeping the mouth shut, in such circumstances, a person would be guilty of the offence of obstructing a garda in taking a DNA swab. I cannot say that I am against the principle of forcible DNA swabbing of suspects in all cases. Nor can I say that the Criminal Justice Bill 2004, where it refers to this, gets the balance wrong. Since I have not had sight of the Bill, that would be premature. Yet the Minister insists on introducing vast amounts of new powers into legislation without allowing for proper consultation to take place.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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That is in the original Bill.

Photo of Mary UptonMary Upton (Dublin South Central, Labour)
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That is all right. One of the main criticisms of this Government has been levelled, in particular, as regards the inadequate resourcing of Garda powers already in existence. This is primarily responsible for the increasing intensity in violent crime since this Government has been in power. One of the main reasons for my interest in the detail of the legislation is some of the events in my constituency. In the recent past there have been a number of gangland crimes. People have died in these, others have been seriously injured and whole communities have been intimidated. The perpetrators of these crimes seem to act with impunity, with scant regard for the safety of innocent bystanders. Yet these criminals seem to be able to escape the rigours of the law. Most of this type of crime is linked to drug dealing. The scourge of drugs will have to be tackled with much more resources and commitment. It is not right that decent ordinary people are living literally in fear of their lives on a daily basis, simply because of their bad luck in having found themselves in a particular street or that they are unfortunate to be housed in an environment where law and order is held in disdain by a few, to the cost of the majority. There is also the stigma involved for the people living in such communities. This is something they raise every time they mention the problem, that is, that the name of their community is linked to this type of crime. In so far as they are concerned it stigmatises the whole area and community, and clearly, they do not want to be named. It is very annoying for them and embarrassing and they feel they are victims as well.

I acknowledge the genuine hard work and commitment of the Garda in my area. However, the numbers simply do not back up the need to enforce the law. Ordinary people want to see gardaí walking their roads, patrolling their streets and being available to them. Over and over I listen to constituents who are living in fear. They contact me and my colleagues and ask us to make representations on their behalf, always seeking the assurance that their names will not be given to the Garda, for fear of reprisals — in case their names get into the public arena, somehow. Where is the justice for those people, who are usually old, frail and afraid, when they are forced to live sometimes like hermits, locking their doors like Fort Knox and refusing to go outside for fear of harassment?

I welcome the proposal as regards the guns amnesty. However, I doubt that many hardened criminals will voluntarily hand over their weapons. They seem to be totally immune to any level of fear. I ask that the penalties for those who do not comply be compatible with the crimes committed. One of the reasons for anarchy on our streets in some parts of the city of Dublin is that facilities for keeping young people out of trouble are simply not being provided. Most importantly the question must be put as to what resources and supports are provided to young people to stop them from getting involved in drugs and crime in the first place. The lack of commitment to sporting facilities at local level, for example, is a scandal. In areas where diversion is most needed, the availability of playing fields and youth centres is most conspicuous by its absence.

Most low level anti-social activity takes place in the evenings and when it is dark. The level of intimidation that can affect elderly people is often ignored or is treated as being relatively unimportant. I hear very little about the provision of services that will take these young people off the streets at that time of night. Is there no imagination that would allow youth services and sports facilities to be open late at night and for youth workers to get involved in an active diversion programme to bring young people under control, in a positive way, when they are most likely to cause trouble? The provision of such facilities will take resources, imagination and commitment. I ask the Minister why there is so little imagination in addressing these types of problems so as to nip them in the bud. Such an approach would protect communities from the ravages of drug abuse, drug dealing, and drug trafficking at a later stage.

The former mayor of New York, Rudolph Giuliani, was credited with cleaning up the city by tackling low level crime and clearing that up before it escalated into a major social and justice problem. Perhaps there are some lessons to be learned from his approach that would have a positive long-term effect for all. In 1994 he took a fairly simple approach. He stated that the drug problem must be fought at every level and by every legal means so that children would not grow up with drug dealers as role models. That is a serious issue which must be confronted in parts of the city of Dublin where it is most regrettable that drug dealers have attained the status of folk heroes for impressionable young people.

I am concerned about rushing through this legislation without the opportunity for the House to debate the implications of the raft of amendments. There is always the danger that by fast-forwarding this important legislation the fine detail will be compromised. I accept there is a need for the legislation but I would be much happier if standard parliamentary practice had been observed in regard to it. The point was made by other speakers that if one small detail is found to be unconstitutional, the entire Bill will be found to be unconstitutional. On issues as important as those defined in this Bill it is appropriate to ensure there are no loopholes that can be challenged.

When the proposed legislation and its many amendments are addressed on Committee Stage the fundamental question that will underpin the success of the legislation is whether the resources will be provided to enforce the law. It will not be enough to point to strong legislation, we will be back to square one without the resources to back it up.

Photo of Willie PenroseWillie Penrose (Westmeath, Labour)
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The Labour Party is not opposed to the motion before the House that basically authorises the committee to consider amendments that were not covered by the text of the original Bill as published in 2004. We will not therefore be voting against the motion tonight. Neither, however, will we vote in favour of the motion lest it be seen as approval of the extraordinary legislative incompetence of the Minister.

Let us remind ourselves that the amendments as circulated by the Minister, almost two years after the Bill was printed and more than a year after the commencement of the Second Stage debate, run to almost six times the length of the original text of the Bill. If it was a once off, one might be prepared to forgive the Minister but this is but one example of a consistent pattern of legislative incompetence on his part.

Yesterday, before the debate on this motion commenced, the Minister was issued with the parliamentary equivalent of a yellow card by the Ceann Comhairle. This warning was unprecedented in my experience in the House and I hope the Minister will heed it. When the Committee Stage debate proper begins we will have to consider each of the amendments proposed by the Minister and judge them on their own merits. We will also table amendments, as is our right and obligation to ensure that the legislation is scrutinised so that when it goes through this House it is the best legislation to deal with the many problems that are causing great angst and grief in the community and to ensure it is immune from challenge on the grounds of unconstitutionality. I know the Minister is concerned about that also.

The changes to the Bill include significant new elements, anti-social behaviour orders, firearms offences and a firearms amnesty, which I genuinely hope work. I heard Paul Williams speak recently on the radio on this matter and he is not hopeful, but in so far as it is a new attempt to address a problem, it may well advance matters and should be tried. I see nothing wrong in that. The legislation proposes to introduce drug trafficking courts, tagging, electronic identification and amnesties. These are all significant measures. Together with the health services, this is a pressing issue for communities. There is a genuine fear and a real and justified concern about escalating crime levels, especially serious crime. A day does not go by without the national media covering the latest ratcheting up of serious crime which causes great distress and anxiety in communities.

In our rush to introduce legislation that will help to curtail this problem and deal with the serious crimes that are being perpetrated I hope we do not throw out the baby with the bath water. As the Minister is aware, I have some involvement with the criminal justice system. I do not advocate any particular view from that perspective, but 25 years ago Mr. Justice Barra O'Briain recommended that all interviews of suspects in custody should be video-recorded. That is a simple thing and I accept the Minister has made progress, but such a system is still absent in some of the larger Garda stations. The judges' rules and custody regulations exist for good reason. I will not spell this out to the Minister as he knows more about them than I.

I believe it is intended to do away with the system whereby a garda types out statements. One of the things that always worried me is that the statements that emanated from ordinary individuals looked more like the work of Shakespeare than the individuals to whom they were credited. This matter always caused me grave concern. Videotaping is the way to deal with this issue and to safeguard both the garda in the interview room and the rights of the person being interrogated.

Rights exist and we cannot just throw them out altogether. We cannot become a totalitarian state no matter what way we look at it. The Minister should ensure that audio-visual equipment is made available in interview rooms throughout the country. Another benefit of its introduction is that this would save Garda time, to which the Minister referred. This approach would protect everybody, particularly in view of matters which have emerged in evidence before the Morris tribunal. We must be careful in the way this issue is handled. I know the Minister would see this approach as an essential safeguard. That is one way to ensure the matter is properly addressed.

The Minister has indicated that other measures covering the indexation of fines and a DNA database will follow. Restorative justice is a worthy and laudable principle but it appears to get lost in the whole system. At the end of the day, whatever approach we take, the first issue is effective policing. The Garda is stretched to the limits of its capacity and abilities. There is no doubt about that. The Minister has stated that Garda numbers are increasing and I do not wish to get into a row over that, but they must increase given the increase in the population.

In my constituency there are large populated areas such as Kinnegad, Rochfortbridge, Tyrellspass and Kilbeggan on the N6, yet there is not one 24-hour Garda station between Lucan and Mullingar or Lucan and Athlone. The Minister might ask why it is necessary to have one. The N4 and the N6 are two of the principal motorways across the country and many small shops along these routes have been subject to robberies. Such crimes are a significant blow to the proprietors and cause trauma and stress for them. In many cases these crimes go undetected.

Sometimes the Minister participates on the "Today with Pat Kenny" show. If he listened to him today he would have heard a reference to Ballymahon, which is not in my constituency but will be if I am re-elected. It is only down the road from me. An incredible number of robberies have taken place there. A great deal of trauma was evident in the accounts of the local people who were interviewed. A garage owner was driven around in a car for three quarters of an hour. The Garda is doing its best. The garda serving Ballymahon has to come from Athlone and it takes 20 minutes to get there no matter how fast he drives. Garda drivers are very skilled at their job.

It is a question of visibility in terms of policing. When we were growing up the local garda was always visible. It was not a case that one was terrified but we were afraid and if we had it in our heads to do something we quickly disabused ourselves of the notion. Under the old system the gardaí were there to make sure people attended school and so on. They knew everybody on the ground because they lived in the local community and had contact with it. If something strange happened it was relayed to them and they were quickly able to effect arrests or to administer warnings to ensure people did not stray from the right path. It would be unfair not to say that parents also have responsibilities. I am a parent and I cannot expect the State or everyone else to do something for me and I cannot expect them to rear my children. I have to do something myself. As a parent I cannot allow children to walk around the streets at 10 p.m., 11 p.m. or midnight, unrestricted and uncontrolled and not worry about where they are. The first responsibility of parents is to ensure they know where their children are and that some form of time bar is applied. When I was growing up, if you were told to be home at 8 p.m., you returned at that time. This may be old-world but we must participate as parents and as a community in this job.

I am in this House to be constructive rather than critical regarding this legislation. Resources for the Garda Síochána are very important as is garda visibility and community policing. Many elderly people are terrified. My grandmother lived to be 97 years of age. She lived in great peace and happiness because an uncle of mine in his 60s lived with her. Many elderly people live on their own and they become the subject of unwarranted threats and intimidation such as people putting things through their letterboxes. The intimidation of an elderly person is the lowest form of cowardice.

I am not in favour of mandatory sentencing although I am in favour of it in the case of murder. Being a lawyer, the Minister will know it is very easy to blame the judges but no two criminal cases are ever the same. The individual who committed the crime or the circumstances are different in each case. I am not a strong proponent of mandatory sentencing but I will support this measure because it is worthwhile. People are too ready to blame the Judiciary. Judges have a duty under the Constitution to administer the law.

My biggest complaint to the Minister is that he emasculated the missing persons helpline service. I appeal to him to give €100,000 to that service. He has argued that the Garda Síochána can undertake that service but this is not the case. It is a vital service. Deputy Nolan has people in his constituency who are concerned about it as are people in my constituency. Gardaí cannot provide this service; it requires a trained person to give on the spot help. I plead with the Minister to restore that service and a good organisation is prepared to take it on board. A total of 5,000 people are missing. The latest figures available show that in 2004, category A missing persons amounted to 2,600. I appeal to the Minister to reconsider that decision.

Photo of Barry AndrewsBarry Andrews (Dún Laoghaire, Fianna Fail)
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I wish to share time with Deputy Nolan.

Fine Gael has spent Private Members' time in the past two days discussing mobile phone usage in cars. This was a terrible waste of time. Many things happen in cars which can be dangerous, such as people applying make up, scolding children and changing the CD, yet the House has spent three hours talking about mobile phones as if they were the only dangerous things. I cannot understand why Fine Gael has wasted so much time on this issue. I wonder whether it was absolutely necessary for the Government to support their proposal.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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Why did the Government not propose this measure?

Photo of Barry AndrewsBarry Andrews (Dún Laoghaire, Fianna Fail)
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The Government supported the proposal. Fine Gael could have made the proposal in many other ways. I am amazed. What happened to the single original proposal which Fine Gael put before the House under the crime heading? It patched up some cut and paste proposal about crime a couple of years ago that was more or less the Criminal Justice Bill with its own heading on it. Fine Gael's one original idea came last November when it gave a knee-jerk reaction to the Nally case. What happened to its plan to introduce a Private Members' Bill to amend the Non-Fatal Offences Against the Person Act? It has disappeared and been forgotten about.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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It is not forgotten.

Photo of Barry AndrewsBarry Andrews (Dún Laoghaire, Fianna Fail)
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The reason it has been forgotten is because it was a knee-jerk reaction. It was alarmist——

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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The Deputy will eat his words shortly.

Photo of Barry AndrewsBarry Andrews (Dún Laoghaire, Fianna Fail)
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——and was forgotten about straight away. If that suggestion had been introduced to force the prosecution to prove a person's use of force was unreasonable, it would have been a charter for finishing off the punter who is coming up one's driveway because he would be the only person who could give evidence against you. It was a hare-brained, crackpot idea and I am glad Fine Gael has forgotten about it and its inaction is typical, unfortunately.

I welcome the amendments proposed by the Minister. I welcome the gun amnesty and I congratulate my colleague, Deputy Curran, who made representations to the Minister on this issue over a number of months. I also welcome the drug offenders' register, the extension of offences regarding membership and association with criminal gangs.

I add my voice of concern to that of Deputy Penrose on the subject of mandatory sentencing. Many speakers have spoken in favour of the measure without realising the effect it would have. I have been unable to identify any data on this issue but I admit I am not perfect at research. I could not find any data to show that mandatory sentencing is an effective deterrent. Currently a trial judge can decide whether a guilty plea should result in a reduction in a sentence, whether there is some hope of rehabilitation of the offender, or whether the offender has gone to some lengths to remedy the situation. He can use all those issues in mitigation. The trial judge may also consider circumstances that may aggravate the sentence and cause it to be increased. Deputy Penrose is correct in stating that no two cases are the same. I would be very reluctant to propose mandatory sentencing.

The Law Reform Commission reported ten years' ago that it would be a retrograde step. Information on the effect of sentencing is required, such as information on the effect of a custodial sentence on the rehabilitation of an offender, the rate of recidivism and whether mandatory sentencing serves as a deterrent. I doubt if the criminal gangs will watch "Oireachtas Report" tonight and say, "I had better hand up my guns because they are making mandatory sentencing a bit tougher".

The purpose of sentencing has many dimensions such as punishment and public safety but mandatory sentencing seems to be directed towards a view that the trial judges are failing in their work. I do not share that view. If it was the case that they were failing in their work with regard to drug trafficking, it would be logical to presume they were failing in their duty in other areas of equal public importance and concern. Why therefore would mandatory sentencing not be extended to other areas of the law? Why not introduce it for crimes such as car hijacking because of the reckless driving which causes so many road deaths? Why is it not used in the case of abuse of public office by a politician, a garda or a planning official if we abhor what is going on? The reason is that we are not in knee-jerk reaction mode with respect to these issues. It is dangerous to react in this manner.

The deferral of sentence in the District Court following a fine is a good proposal. The purpose of this provision is to encourage an offender not to re-offend and to monitor behaviour over a period which is what the probation service is supposed to do. We need to go further again and examine the question of rehabilitation. I have raised this issue with the Minister on a number of occasions. It is necessary to consider whether a convicted offender who has shown good behaviour should be able to expunge his or her criminal record. This proposal would be limited to shorter custodial sentences with a period of good behaviour being correspondingly shorter. This would not apply to later court proceedings. The offence could be raised in a court. It would not apply to cases relating to visas but would apply to matters of employment and insurance. We are fooling ourselves if we think sentencing and punishment are the only elements of criminal justice. We must actively consider the question of what is happening to those being released from prisons and what we will do to encourage them not to re-offend. If one tenth of the time we spend discussing punishment and retribution, and all the issues Members raise in the House about people not being safe in their homes or cowering behind their curtains, was spent considering what we will do with offenders following their release, we would go a long way towards making society safer.

Photo of Séamus HealySéamus Healy (Tipperary South, Independent)
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We could give them decent health services, housing and education beforehand.

Photo of Barry AndrewsBarry Andrews (Dún Laoghaire, Fianna Fail)
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There is much evidence to suggest that those in socially deprived circumstances have a worse crime record. However, Deputy Healy can be quite sure that 90% of people in such areas have no inclination to crime.

Photo of Séamus HealySéamus Healy (Tipperary South, Independent)
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It is 95%.

Photo of Barry AndrewsBarry Andrews (Dún Laoghaire, Fianna Fail)
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It is reckless of those like Deputy Healy to make excuses for people to commit crimes.

Photo of Séamus HealySéamus Healy (Tipperary South, Independent)
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I make excuses for no-one.

Photo of Barry AndrewsBarry Andrews (Dún Laoghaire, Fianna Fail)
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Let us forget about that issue. It is a total red herring, as Deputy Healy well knows.

Some of the comment on anti-social behaviour orders is misdirected as there is no agreement as to what constitutes anti-social behaviour. "Prime Time" confused the issue by showing footage of people using shotguns in housing estates. That is not anti-social behaviour; it is simple criminal behaviour which has no connection with anti-social behaviour.

The issue has been politicised and an inflated sense of vulnerability in the home has been created. We are all responsible for this if we claim in the House that people are afraid in their homes, that the streets are not safe or that people are dodging from doorway to doorway on O'Connell Street to avoid the bullets. This is the kind of language that feeds an irrational social panic that is not matched by reality. As the Minister rightly stated in his contribution, the incidence of crime has reduced in the past five years. Unfortunately, this reduction is not matched by a reduction in the level of exaggeration heard in the Chamber.

I have reservations about ASBOs for children, although I have not considered the detail of yesterday's contribution from the Minister of State, Deputy Brian Lenihan. We need to bring in the Children's Act. As for the issues to which Deputy Healy refers, local authorities experience results where they are proactive with estate management, as my local authority is in Loughlinstown and Shanganagh. Great results have been experienced where estate management has been in a proper partnership with local authorities and communities. Such results will be improved further under the Garda Síochána Act sections dealing with local policing committees.

While we have the Garda Síochána Act, we need to consider the issue of rural policing for many reasons. I am not from a rural constituency but, given the anecdotal evidence, I know rural Garda stations are virtually a law unto themselves, especially the one-man shows, where many gardaí have other jobs. This area needs to be tackled.

I continue to have serious reservations about the admissibility of witness statements, a point I made on Second Stage. I support the motion.

Photo of M J NolanM J Nolan (Carlow-Kilkenny, Fianna Fail)
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I commend the Minister on tabling the amendments. Like previous speakers, I also spoke on Second Stage of the Bill. Most Deputies speaking in this debate acknowledged the difficulties they experience in their various constituencies, given the significant increase in criminal activity and anti-social behaviour in towns and rural areas such as my own area.

Photo of Séamus HealySéamus Healy (Tipperary South, Independent)
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The previous speaker said the opposite.

Photo of M J NolanM J Nolan (Carlow-Kilkenny, Fianna Fail)
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It is of great concern to us all. The House enacts a Finance Act and Social Welfare Act every year. Given the changing nature of criminal activity and anti-social behaviour, we could consider an annual update of legislation dealing with criminal activity.

For the observer, it seems criminals with access to huge amounts of money can employ the best legal brains. In some cases, it seems they can drive a coach and four through legislation. I hope this will not be the case with the Bill under discussion and that it will be enacted without constitutional challenges. If so, at least we, as legislators, will have done our bit to ensure that the public can live in comfort and peace in their homes. The disregard for the rule of law is of concern. I know I reflect the views of many vulnerable people in our society, particularly the old, young families and single parents in communities where anti-social activity takes place.

There is much forward thinking and enthusiastic management at local level. I refer to Carlow in particular where there is good local authority management in Carlow County Council and Carlow Town Council which work closely with the vocational education committee, teachers, schools and the Garda. However, a difficulty arises in that there does not seem to be continuity at the level of senior Garda management. Carlow has had four superintendents in the past four or five years. It is difficult to bring a team together to try to tackle social problems in a large town like Carlow when one of the pillars of that team moves on every 18 months to two years. This does nothing for cohesion and should be addressed. I realise that the problem is not unique to Carlow but arises throughout rural Ireland.

Photo of Séamus HealySéamus Healy (Tipperary South, Independent)
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Absolutely.

Photo of M J NolanM J Nolan (Carlow-Kilkenny, Fianna Fail)
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The nature of the Garda force is that individuals are on a promotional trail and I do not want to be seen to interfere or suggest there is anything wrong with that. However, we must be mindful, as must senior Garda management, of the significant and important role played by superintendents and senior gardaí in a county or town.

Much of the debate has focused on the increase in gun crime and the number of shooting incidents in recent months. There has been a serious proliferation in the use of guns and I welcome the Minister's amendment to introduce mandatory sentencing for the use of guns. Something must be done. Unfortunately, it took the death of a journalist ten years ago for us to tackle the drug barons of the mid-1990s. Many of them are behind bars but their places have been taken by accomplices. When one is brought before the courts and put away, perhaps ten are ready to take his place.

I am glad the Bill makes a distinction between children of 12 to 18 years and adults. I support the Minister and the Minister of State, Deputy Brian Lenihan, who is bringing forward ideas in the area of anti-social behaviour orders.

The legislation in 1999 which provided for a minimum ten year sentence on conviction for possession of drugs for sale and supply was positive at the time. It provided some grounds where the court could decide if it considered a sentence of less than ten years was applicable. The new proposals the Minister will bring forward will clarify that position. I do not want to criticise the judges but recent cases were highlighted in which, to the lay person, the sentencing policy of some of the courts seems very lenient.

Many problems in society can be and are detected at an early stage, particularly in schools. The support given to primary and secondary schools is positive. I am advised by professionals in the education sector that they can at a very early stage identify students who have the capacity to cause problems for society at a later stage. It is extraordinary that at a time of almost full employment we see such individuals aged 16, 17 or 18 roaming the streets. It is important that parents accept responsibility for them. I was pleased to read of a recent court case where a parent was convicted for the poor school attendance record of a child. Such example is important. Parents have a major responsibility for the actions of their children of school-going age.

A previous speaker raised the issue that in some communities drug dealers with their obvious wealth including high powered expensive cars, who live the good life and have no visible means of income apart from trading drugs, are seen to a certain extent as role models. That is unfortunate.

This legislation is necessary. I hope it has the support of Members on all sides of the House. Unless we are seen to bring forward legislation that will tackle the difficulties we are encountering, we will reach a stage where, if we are not careful, they will escalate to a level where they will be too much for us to manage.

Jerry Cowley (Mayo, Independent)
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I wish to share time with Deputies Healy and Boyle.

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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That is agreed.

10:00 pm

Jerry Cowley (Mayo, Independent)
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I am pleased to speak on this Bill. An MRBI survey on crime and law enforcement in March 2006 commissioned by the Department of Justice, Equality and Law Reform shows that people are much more concerned about crime than they used to be. At the top of the list is drug abuse at 68%, followed by violent crime at57%, juvenile and teenage crime at 50%, disorderly conduct in public at 43% and so on with burglary, car crime and graffiti appearing towards the bottom of the list. People have a fear of lawlessness and of crime. Every community is ravished by drugs. There is not a community that does not have some type of a drug problem, although some people may not want to believe that.

In my area the presence of a local garda has made a big difference to people's behaviour. Rural areas have been relatively crime free in the order of things compared to the large built up areas. If people could be encouraged to remain in rural areas where there is a strong sense of community we would have a better chance in dealing with this issue. People drift to cities. In cities where there are built up housing estates and a lack of services and facilities more people appear to become involved in crime.

This issue goes back to a sense of community and a sense of belonging. In our area where everybody knows the local garda there is considerably more respect for the garda and the work he does. The local garda plays a large part in crime prevention and that element is lacking in urban centres. There is a loss of a sense of community in cities. People are more anonymous and often they do not know their next door neighbour. The opposite is the case in rural areas.

There is a drift of gardaí to urban areas and more gardaí are being moved from rural areas and brought to large centres, perhaps to make up for a lack of manpower. The populations of cities have increased, yet the garda numbers have not increased as they should have. Some 2,000 additional gardaí were promised and they need to be deployed. It is up to the Minister as to whether that will happen. He said it will happen in the near future. We hope it does because there has been an erosion of the Garda presence in rural areas.

Increasingly more gardaí are not living in their own areas. It would be useful if in future there was not a compulsion but an incentive to encourage gardaí to stay in rural areas. Garda stations are as much a part of a rural community as any other institution, be it a school or doctor's surgery. They are all part of the essential infrastructure that knits a rural area and community together. If there is a loss of service, there will be a loss of population. Who would want to stay in an area where there is no protection from marauding criminals or where there is no school or teachers? All the services down the line are a part of the essential infrastructure of a community.

I wish to briefly diverge from the Bill and raise a point concerning a naturalisation application, which is the responsibility of the Minister. I am aware of the case of a doctor who is a plastic surgeon and who has been living here since she was a young girl, was educated here and has contributed greatly to our economy and is currently contributing to our health service. She cannot leave this country which she now regards as her home without ensuring that she has a visa on her return. This poses a great difficulty for her. She applied for naturalisation in September 2005 and it will be September 2007 before her file is considered. Will the Minister respond to this case? This person is contributing greatly to our country and her father is also a consultant in one of our hospitals and an Irish citizen. All her family are citizens with the exception of herself. It seems ridiculous that she has to wait two years for her application to be dealt with. I do not know what has happened in this case and perhaps the Minister might be able to deal with it.

Returning to the Bill, I can understand the rationale for it as regards the basic idea of where evidence is submitted that it could be withdrawn at some other stage. I welcome that aspect of it. I also welcome the controls on fireworks as I have seen too many people with very bad injuries to their hands and with fingers having been blown off. It is essential that the Bill address all these areas.

There are many other items on which I could speak but I am conscious of the time constraint. The introduction of ASBOs is not a good idea and it would compound the problem. They do not address the core issue which is lack of community support for families and individuals. In the event of there being civil proceedings the burden of proof is different and applies the balance of probabilities principle rather than the principle of being beyond reasonable doubt. That would result in penalising people who need a different type of help. I had cause to visit the Rossport Five during their 94 days in detention. I saw many young people in that jail who had no education and they asked Micheál Ó Seighin, who was a teacher, to teach them how to read and write. There are many others like them.

Photo of Séamus HealySéamus Healy (Tipperary South, Independent)
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As many other speakers have said, the Bill was introduced in 2004 and it is now 2006. It was introduced initially in a shortened form having regard to the number of amendments to it. The manner in which this Bill has been brought before the House and changed out of all recognition is unfair to Members. It is also unusual, as is the procedure that we now are adopting.

I take this opportunity to make a few points on this entire area. Last week the Minister wrote to us all pointing out the strength of the Garda Síochána. He took the opportunity to refer to the record of the rainbow coalition. I have no difficulty with that. The figures show that during the course of the rainbow coalition, Garda numbers fell. I accept that that was the case. It obviously should not have been the case and it was not acceptable.

For a number of years I, Clonmel Borough Council, South Tipperary County Council and the Clonmel RAPID organisation have been asking the Minister to provide community gardaí in Clonmel and south Tipperary and at all stages he has refused to do so. No gardaí are dedicated to community policing in south Tipperary. The Minister has been asked to provide those gardaí on numerous occasions and he has failed to do so.

In the large town of Clonmel there are approximately 41 gardaí. Tralee, a comparable town, has 75 gardaí. At any one time in Clonmel there are a maximum of eight gardaí on duty, at least one of whom is in the station. One can understand that the manning levels are ridiculously low and need to be increased substantially. To add insult to injury, in the town of Fethard, which is also covered by the Clonmel area, up to two years ago there were three gardaí but when one of those gardaí retired on health grounds, she was never replaced and there is now one third less cover in that area. When the Minister refers to the record of other parties, he should also look at his own record in this area of resourcing the Garda and the manning levels in many towns and cities.

In County Tipperary there are only two garda dedicated to drug work. Everybody knows that people in every village and crossroads in every town in this country have access to illegal drugs. The level of Garda manning in this area, which is as low as two for the entire county of Tipperary which has a population of 120,000, is a matter which should be addressed immediately.

I concur with a point Deputy Nolan made about senior garda manning levels. As in Deputy Nolan's constituency, in my constituency there has been what can only be described as a revolving door of senior gardaí over recent years. There have been no long-standing senior appointments in the past three years in Clonmel. We have had three or four superintendents in that time and that simply does not help the situation.

I agree with much of what has been said about anti-social behaviour. Community gardaí, working with young people and communities, can go a long way towards solving that problem. As I stated to Deputy Andrews, there are small numbers of people involved in anti-social behaviour and much can be done by dealing with them on the basis of community gardaí liaising with the people concerned, with their parents and with the communities.

Obviously, there must be punishment and sentences. No doubt there must be severe sentences for serious crimes. While we must use the stick, we also must use the carrot. It is important that human services are funded by this Government. Unfortunately, since this Government came into power it has de-prioritised human services. There are 50,000 families on local authority housing waiting lists, there is a chaotic health service and the largest class sizes in education in Europe. The cycle of crime will continue unless money is put into those services and we get reasonable and proper services for ordinary people. One can put the gang leaders in jail but they will be replaced by others and the cycle of crime will continue. One must use both the stick and the carrot. Unfortunately, this Government has de-prioritised the human services and if that is not reversed, it will lead to untold difficulty in the future.

Photo of Dan BoyleDan Boyle (Cork South Central, Green Party)
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This motion is a political nicety. The Minister for Justice, Equality and Law Reform would be procedurally quite in order to take this raft of amendments to committee even though it is far out of proportion with the Bill as originally published. It has only been the criticism of the Opposition benches that has brought this motion to the floor. Even the time spent debating this motion over the past two days is out of proportion with the amount of time this House spent debating the Bill on Second Stage. On those grounds we might even anticipate what will follow the Committee Stage in that the Minister has given no guarantee on the number of amendments that will come before this House when the committee returns the Bill to this Chamber. On the mathematical applicator that we could apply between the publication of the Bill and the Committee Stage, we expect a three volume tome to come back on Report and Final Stages because this is the nature and the habit of legislating with this Minister.

In the short time available, I will concentrate on one aspect of the plethora of amendments that the Minister has put before the House, a section that I find most objectionable. Although I am only ankle high to the Minister in terms of achievement, I have 20 years' experience of youth work. That was spent providing diversionary programmes funded pathetically by successive Governments to date. The funding for the youth affairs section in the Department of Education and Science is 0.3% of the budget of that Department. When one's tools are pool tables, table tennis tables and decks of cards, one can see what the State really thinks of diversionary tactics and programmes to provide young people with a safe and comfortable environment in which to socialise and develop properly. That is the reality of this Government's programme. While it is a reality it has inherited from previous Governments, this Government has been in power for nine years and has done nothing to increase exponentially the amount of funding available in that area.

My objection arises from the Minister's attempt in these amendments to change the age of criminal responsibility, which is a direct repudiation of a provision of the Children Act 2001. The Minister did not explain in his opening speech to the debate on this motion why he felt the need to do so but he has stated in public, where most of his policy announcements seem to be made, that he felt that the age of criminal responsibility of 12 was wrong. He further stated that there would be chaos if this section of the Act to which I refer was commenced. The Act to which he refers was presumably passed on the say so of the law officer of that Government, the then Attorney General who is now Minister for Justice, Equality and Law Reform. The Minister might like to explain why he, as Attorney General, approved to the Government a provision in a law which he subsequently believes to be wrong and which the Government is now inclined to change.

The Children's Rights Alliance, an umbrella organisation representing 80 non-governmental organisations, has questioned the usefulness of bringing children as young as ten into the criminal justice system. It also points out that it directly undermines the excellent work carried out by the Garda diversion and juvenile liaison programmes. This reflects not merely a lack of joined-up thinking on the part of Government but the devising of policies as repelling magnets. It makes no sense.

The UN standard of minimum rules for the administration of juvenile justice states: "The beginning of that age shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity". The Minister may think that a great advertisement for the health and education policies of this Government but the reality is that ten year old children in most developed countries are not considered to have legal responsibility. However, for reasons best known to himself, he has decided this should be an essential element of the Bill. He may, in his normal way, suggest that mine is an even more lily livered liberal approach than he expects of the Green Party but alternatives exist in terms of diversionary programmes for young people, programmes which he and the Government of which he is part have failed to put into practice. This Government must be indicted for passing the Children Act 2001 but failing to implement its provisions. This may partly have been due to the Minister's problems with a number of provisions contained in the Act.

This issue can be linked to the Government's re-jigging of anti-social behaviour orders. The Minister of State at the Department of Education and Science with special responsibility for children indicated a specific form of ASBO for 12 to 18 year olds, a concession which I believe he had to wring from the Minister. Many on the Government benches are uncomfortable with the idea of ASBOs which truly represent cartoon justice. This ticking boxes legislation is intended to give the impression that action is being taken when that is not the case. ASBOs will not be used as a last resort but, as is the case in the United Kingdom, as a means to soften the impact of crime detection and prosecution figures.

The Minister and the Government are engaging in nothing more than headline type legislation, which ill serves this House, the quality of legislation we produce and ultimately will end up producing a justice system that fails to meet the needs of citizens intimidated by criminal behaviour or to help those we seek to divert from such behaviour.

Photo of Denis NaughtenDenis Naughten (Longford-Roscommon, Fine Gael)
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The Minister can bring through all the legislation he may care to but unless he commits resources to reform the existing structures, we will waste our time producing hot air.

Deputy Andrews claimed that the majority of gardaí in one-man rural stations have other jobs. He is correct that they do other jobs but this is because they have been redeployed to urban centres and are not available to rural communities. Many rural Garda stations exist in name only, although the Minister's colleague with responsibility for the Office of Public Works has in the past valued many of them. Often, they are closed but for a couple of hours each month, as people realise when they try to renew their gun licences.

My local station in Clonard has been physically closed and is completely dilapidated, yet the Department of Justice, Equality and Law Reform is not prepared to invest any resources in it. Recently, I tried for three weeks to contact a local Garda station by telephone but it did not even have an answering machine. If it had been a residential station, I could have met the garda assigned to it. The Minister should encourage gardaí to reside in rural Garda stations rather than allow them to be closed by stealth.

The Nally case, in which four bench warrants were outstanding, would not have arisen if sufficient resources had been allocated to the Garda Síochána. That is but one example of bench warrants which are not being enforced because people know they will get away with it.

The Minister, during his term in office, could have addressed the civilianisation of the Garda Síochána. More than 556 gardaí are assigned to desk jobs. In the original report of 2001, a garda was described as running the tuck shop in Templemore training college. That is an unacceptable situation which should no longer be tolerated.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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I thank all the Deputies who contributed to this debate over the past two days. People may say that only a handful had a chance to air their views but more than 50 — excluding Deputy Naughten, who had only a few minutes at the end — had an opportunity to contribute.

The process which led to the tabling of these amendments has been one of the most transparent in the history of criminal justice legislation. Nearly all these amendments were canvassed by me on Second Stage. I put them before a committee of the House last September, on which occasion I discussed their principle. I also put them before the Human Rights Commission and received the views of that body. They have been available on a website in the Department for God knows how long. Every one of these propositions has been the subject of extensive public debate. The notion that they are coming from nowhere and that I am producing them like rabbits from a hat is simply untrue. While it took longer than I would have wished to bring these amendments before the House, they clearly have been canvassed and debated. The length of time between Second Stage and this motion to amplify the ambit of the committee sessions has been extraordinary by any standard. Second Stage debate took place over a period of six months.

I admire Opposition Deputies because I spent most of my time in politics on the Opposition benches, but they are not consistent in their arguments.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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The Minister may be here sooner than he thinks.

Photo of Denis NaughtenDenis Naughten (Longford-Roscommon, Fine Gael)
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Please God.

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

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

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

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

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

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

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

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

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

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

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

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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Does it happen in other countries?

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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It does and I do not see why we should not have a method of doing that here also.

Points were made about the ASBO issue. I will not enter into that debate now, but I believe the range of measures being brought forward by the Minister of State at the Department of Justice, Equality and Law Reform, Deputy Brian Lenihan, and me in this legislation are fully consistent with the Children Act and fully consistent with diversion. The regime for ASBOs in Ireland will be radically different from that in the United Kingdom.

The age of criminal responsibility will be 12. As the Minister of State, Deputy Brian Lenihan, stated yesterday, with offences committed by a person under age 14, the consent of the Director of Public Prosecutions will be required. A few cases in any civilised society of murder, manslaughter and rape may be carried out by an 11 year old and to say that the State can do nothing about this, with the child back in school on Monday morning as if nothing had happened, would scandalise public opinion.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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Has there been any such case?

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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There have been many in Britain.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
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Not here.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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There have been a few cases of sexual offences involving minors. A solid citizen could wake up one morning to realise that the young boy who had raped his or her daughter was going back to school that day and there would be a conference, or that a person who pushed his or her child under a train or into a canal was back at school, or that a person had bullied and tortured a person. If our law was such that these people would be given a mere slap on the wrist and told to get on with the rest of their lives, public opinion would be outraged. What the Minister of State at the Department of Justice, Equality and Law Reform, Deputy Brian Lenihan, is doing is entirely reasonable.

The resolution before the House today is part of the procedures laid down by the House. It is not an attempt to trample on the rights of the House but part of the Standing Order system which the House has provided for itself. This debate has witnessed more than 50 Deputies over two days add their voices to what was said on Second Stage. I have done my level best to create a sense of public awareness of where I am bringing this Bill. I believe it has the support of the great majority of Deputies in the House, as do the great majority of the amendments. Whereas they will merit a full debate and benefit from close scrutiny they will, by the time the House rises for the summer, be an important part of the law of this State.

Question put.

Deputies:

Vótáil.

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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Will the Deputies claiming a division please rise?

Deputies Cowley, Crowe, Ferris, Ó Snodaigh, Ó Caoláin, F. McGrath and C. Murphy rose.

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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As fewer than ten Members have risen I declare the question carried. In accordance with Standing Order 68 the names of the Deputies dissenting will be recorded in the Journal of the Proceedings of the Dáil.

Question declared carried.

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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Yesterday at the outset of the debate I welcomed the fact that the motion to instruct the committee was tabled and debated on the basis that it allows the principle of the new amendments to be discussed in a debate similar to that on Second Stage. The debate that took place reinforces the view that whenever the scope of a Bill is to be significantly broadened, the House should be given the opportunity to have a debate similar to a debate on Second Stage as a matter of course.

In future it may not always be the case that a motion to instruct would be sufficient to capture adequately all new principles proposed in the new amendments and a new Bill may be warranted. The Chair will be examining future motions to instruct, including those that may be put forward as notwithstanding anything in Standing Orders motions, with a view to ensuring the House would always have the opportunity to debate the principle underlying significant changes to a Bill, whether by way of a motion to instruct or in a new Bill as the case may be. This would ultimately be of benefit to the House generally and I trust the Members will see it in this light.