Thursday, 29 March 2007
Criminal Justice Bill 2007: Committee Stage (Resumed)
I am not opposed to the proposition being put forward. However, it would be very imprudent of a Minister to accept an amendment without consulting the Attorney General and obtaining his advice on it.
Time is required to consider it. If I were asked, I would choose Deputy Howlin's approach rather than Deputy Jim O'Keeffe's but I do not preclude that the Attorney General may fail to see merit in the latter's approach. I need time and a Government decision but I have neither. This legislation, when debated on Second Stage, did not incorporate any of this material. If I am accused of legislating on the hoof, let it be clearly understood that I am being invited to do so by others.
That is profoundly unfair in two ways and I would like to set the record straight. Nobody asked that the Hogan report be implemented in full or that the legislative attachment be enacted as an appendix to this Bill. The Minister has a propensity constantly to set up straw men so that he can pull them down. I am reiterating the case I made a year ago and, therefore, there is nothing new in my approach. As Deputy Jim O'Keeffe correctly stated, my approach was not novel even a year ago. It has antecedents going back to the mid-1980s. My difficulty with the Minister's approach is it is exactly what he said a year ago. He supported the idea and he would have liked to accept the amendment but he needed to have a debate or talk to the Attorney General. What has he done for a year, if he has not discussed this with the Attorney General? If it is an important issue, why was that not part of the heads of the Bill he circulated in February and the substantive legislation before House?
The Minister's principle is ludicrous. He agrees with me in principle, yet he will not accept the proposal or offer any way to deal with it because there is not time to discuss it with the Attorney General. This all goes back to the headlong rush the Minister is in to put the Bill on the Statute Book. Are we trying to improve the criminal justice system? The Minister stands convicted on the basis of his own words. It is clear that is not his central purpose and, on that basis, I press my amendment.
I move amendment No. 13:
In page 6, before section 5, but in Part 1, to insert the following new section:
6.â(1) The requirements of this section shall be met if there is new and compelling evidence against the acquitted person in relation to the offence of which he or she was acquitted.
(2) Evidence is new ifâ
(a) it was not adduced in the proceedings in which the person was acquitted,
(b) in the case of an appeal, it was not adduced in the earlier proceedings to which the appeal related.
(3) Evidence is compelling ifâ
(a) it is reliable,
(b) it is substantial, and
(c) in the context of the outstanding issues, it appears highly probative of the case against the acquitted person.
(4) The outstanding issues are the issues in dispute in the proceedings in which the person was acquitted and, if those were appeal proceedings, any other issues remaining in dispute from earlier proceedings to which the appeal related.
(5) For the purposes of this section, it shall not be relevant whether any evidence would have been admissible in earlier proceedings against the acquitted person.".
I move amendment No. 14:
In page 6, before section 5, but in Part 1, to insert the following new section:
7.â(1) The requirements of this section are met if, in all the circumstances, it is in the interests of justice for the court to make the order under section 5.
(2) In determining whether the requirements of this section are met, the court shall have particular regard toâ
(a) whether existing circumstances make a fair trial unlikely,
(b) for the purposes of that question and otherwise, the length of time since the qualifying offence was allegedly committed,
(c) whether it is likely that the new evidence would have been adduced in the earlier proceedings against the acquitted person but for a failure byâ
(i) the Director or his or her agent or agents,
(ii) a member An Garda SÃochÃ¡na,
(iii) a member of the judiciary,
(iv) an employee of the Courts Service, or
(v) any other person involved in the administration of justice,
to act with due diligence or expedition,
(d) whether, since those proceedings or, if later, since the commencement of this Part, any person referred to in paragraph (c) of this section has failed to act with due diligence or expedition.".
I move amendment No. 15:
In page 6, before section 5, but in Part 1, to insert the following new section:
8.âIn this Partâ
"Director" means the Director of Public Prosecutions;
"member of the judicary" means a judge of the District, Circuit, High or Supreme Courts.".
I move amendment No. 16:
In page 6, before section 5, but in Part 1, to insert the following new section:
5.âThe Minister shall, by regulation under this section, make provision for identification of suspects by witnesses, victims and other persons where the suspect can be identified through a one-way screen and the identity of the witness, victim or other person can be withheld.".
A month ago I was approached on behalf of somebody who had been raped. The question of an identification parade arose and I was asked what was the process and the procedure involved. The person concerned did not want to face the trauma of seeing her assailant face to face under any circumstances. I tabled a question to the Minister on 20 March on whether a process involving two-way mirrors was available for identity parades in order that a rape victim or a victim of a serious assault would not have his or her identity disclosed. The response was that according to the Garda authorities, formal identification parades were the main way of identifying a suspect by a victim or witness prior to a court case. Instructions issued to every member of the Garda SÃochÃ¡na set out how a parade should be conducted, based on established best practice and case law precedent. In the response the Minister continued to state that the process did not involve the use of a two-way mirror.
This confirmed to me that the trauma faced by the person concerned was absolutely genuine and I was horrified. I examined the situation and found that in the United Kingdom and other countries it had been changed. The Minister indicated he was reviewing the matter to see what improvements, if any, might be made, including the possibility of making the procedure less traumatic for victims and witnesses.
I was quite affected by the situation and the thought that the assailant might get away because the victim was horrified at the notion of having to face him in an identification parade but I was heartened to find that the issue was dealt with in the report of the balance in the criminal law review group.
On page 233. The report states two issues were raised. One was the possible inference that might be drawn from a failure to attend an identity parade. I will not focus on this because it raises broader issues and the group did not come out with a clear recommendation. The second issue raised was that the injured party would identify the person involved from behind a one-way screen. It is a brief recommendation and appears to have also been considered by the Leahy committee but nothing followed from the Leahy report. The review group clearly favours the concept of allowing, as far as practicable, the injured party to identify the suspect through a one-way screen. The report also states it is not clear that a change in the law is required to achieve this result.
In presenting the amendment I reckoned it was a process and procedure which should be put in place as quickly as possible. I tabled the amendment on the basis of it being an enabling provision. It would not specifically provide for the use of one-way screens but enable the Minister to make provision by regulating for "the identification of suspects by witnesses, victims and other persons where the suspect can be identified through a one-way screen and the identity of the witness, victim or other person can be withheld". I want to give the Minister power to enable him to change the law, if necessary. The amendment would provide a mechanism to empower the Minister to make regulations to introduce this change which is necessary. When we discuss grand principles of law, we must also get down to the practicalities. In some instances the practicalities are more important that the grand principles. If, as a matter of practicality, an unfortunate woman who was raped is not able to face an identification parade where she must physically confront her assailant and identify him, we should do what is necessary to avoid this and change the procedure.
I accept the old process was changed some years ago. Previously, a victim had to place his or her hand on the shoulder of the identified person. This is no longer part of the process. Let us go farther and at least avoid this trauma for victims such as those I described.
I agree with the Deputy's amendment and propose to accept its principle. I want to think about the exact way in which it should be brought into law. I recall a case where because of intimidation an individual was allowed watch from a van on a street where it was understood the person would be and identify the person to gardaÃ. The evidence was acceptable in court.
It was accepted in the Special Criminal Court. I accept the point about sexual crime victims being re-traumatised by a very scary process in which they must physically confront their assailants. I take the wider point on gangland activity where people may find the process of identification frightening. It would be frightening if one saw somebody shoot down someone in front of one and was then asked to pick out that person in a face to face confrontation. I am with the Deputy 100% and propose to examine the amendment.
I agree with the Leahy report that it is probably unnecessary to change the law to do this but it certainly is necessary to have an adequate way to do it. In some North American cities and places in the United Kingdom quite elaborate rooms are set aside where this can happen. As one can imagine, it would cost a lot of money to dedicate a room to this purpose regionally. I want to examine the practicalities of what is suggested. It should be possible to use a mobile booth which could be brought to a place where a crime was committed. Not only victims of sexual crime but others are afraid of the physical confrontation method used. I accept the principle of the Deputy's proposal but I do not want to commit myself to the exact wording proposed by the Deputy.
The old traditional thinking must have been based to some extent on how evidence of identification by somebody not in the room with the accused would be given without breaching the hearsay rule. I do not know whether it is relevant to the hearsay rule if an accused person is told by somebody else that a person outside the room identified him or her. Whether it is relevant or had anything to do with the old-fashioned way of confronting the accused and letting him or her know he or she had been selected, we should modernise the system in practice, whatever about the theory of it.
On the basis my amendment is accepted in principle, it is a matter of how we might implement it in practice. I want to ensure one way or another, whether through law, regulation or a change in practice, that at the earliest possible opportunity a process will be put in place whereby rape victims and others will not have to face their assailants directly in an identification parade if they feel unable to do so. I recommend the TÃ¡naiste consider the case in the UK, where they have clearly got around the practical problems. I am sure the same applies in other relatively small countries, although I am unsure of the situation in New Zealand and elsewhere. I appreciate there may be practical difficulties but whatever we do, we should not add to the trauma of rape victims and others by making them confront an assailant in identification parades.
This explains the purpose of the amendment. I hope the TÃ¡naiste accepts the spirit of it and will give absolute confirmation that he will put in train the necessary change to ensure identification parades are conducted with a one-way screen. I hope this will be done before he goes out of office, which would only give him a matter of weeks. Conducting such parades with a one-way screen would allow the identity of the victim to be withheld.
I move amendment No. 17:
In page 6, before section 5, but in Part 1, to insert the following new section:
5.â(1) Where evidence is obtained in contravention of a person's constitutional rights, whether numerated or unenumerated, such evidence may, having regard to the totality of the circumstances of the case and, in particular, the rights of the victim, be deemed by the court to be nonetheless admissible, unlessâ
(a) the evidence was not obtained in good faith, and
(b) the contravention of the person's constitutional rights wasâ
(i) intentional, and
(ii) significant in the context of the offence alleged.".
The last issue was a matter of practicality but with this amendment I am getting into an area of serious law, which I accept. Many issues annoy me in the criminal justice system, and seeing people accused of serious crimes walking out the door on the basis of technicalities is one of them. That brings the criminal justice system into disrepute. I know smart lawyers are paid big fees to find technical problems etc. and it is their job so I do not blame them. I wish the TÃ¡naiste every success if he returns to that practice.
The general public loses confidence and faith in a system where this happens. This is where evidence is clearly available but there may be a basis for some technicality, such as a minor defect in a search warrant. I will not recall any particular case but I am sure all of us can remember cases of that nature. An accused can walk out the door on the basis of this technicality, even where there is considerable evidence against him or her.
I have been considering how one might change the law in this regard. I asked the Houses of the Oireachtas research service to examine the issue and I compliment those involved in that service. They are at long last providing an excellent function to members of the Opposition in particular, who do not have access to any similar support. I received an excellent paper on the issue towards the end of last year from Dr. Emma Fee of that particular service, and I compliment her and her colleagues on the service provided.
It shows that if we proceed carefully and cautiously, changes can be made which will not unduly entrench on the traditional historical rights of the accused to a fair trial. I was heartened by the consideration of this issue by the review group.
On page 147 of its report, the background of the exclusionary rule was traced and it appears it is of relatively recent origin. It has developed to an extent where, effectively, on any technicality prosecutions can fail. The most extreme example was in the Dylan Creavan v. Criminal Assets Bureau case. In that instance, as a result of the judge not being in his assigned area when the search warrant was signed, everything recovered in the course of the subsequent search was deemed to be improperly obtained. That makes the law an ass.
That provision was changed not by tackling the broader issue of the exclusionary rule but by a change introduced in the Criminal Justice Act we passed last year not requiring the judge to be physically present in his or her own district when a search warrant is signed. That closed that part of the loophole. The broader issue of what happens when the accused walks out the door on the basis of a technicality was not dealt with, but it has been dealt with in great detail by the Hogan committee. An opinion on it clearly emerges from the majority of the committee, although this majority excludes Dr. Hogan. It is one of the instances where I disagree with him. On page 161 the report states: "A majority of the Group is of the view that the current exclusionary rule is too strictly calibrated, and would wish to see a situation develop where the court would have a discretion to admit the evidence or not, having regard to the totality of the circumstances and in particular the rights of the victim."
In our approach to the whole criminal justice system in general and in particular in dealing with a Bill of this kind, we must be more cognisant of the rights of the victim.
The review group went on to look at the different possibilities, one of which is having the issue revisited by the Supreme Court. That would be to avoid our responsibilities, as the Oireachtas makes the law. We cannot wait around for the Supreme Court to be given a nod to reconsider the issue, and it would depend on an appropriate case coming before it anyway.
The group and the research paper looked at the scenario in other countries and arising from that I have tabled these amendments as to what should be admissible. The majority recommendation from the review group states:
We would wish to see a situation where the court would have a discretion to admit unconstitutionally obtained evidence or not, having regard to the totality of the circumstances and in particular the rights of the victim. In the first instance we suggest the approach of seeing whether a change in jurisprudence emerges following use of the appeal provisions of the Criminal Justice Act 2006. If not, the other options would then have to be examined and considered. As stated above, these other options include various legislative models or possibly constitutional change.
This is a menu. We should not wait around for the Supreme Court and we should avoid a constitutional change if at all possible. We should try to find a way forward within the parameters of legislation.
For that reason I tabled this amendment, which essentially provides: "Where evidence is obtained in contravention of a person's constitutional rights, whether numerated or unenumerated, such evidence may, having regard to the totality of the circumstances of the case and, in particular, the rights of the victim, be deemed by the court to be nonetheless admissible, unless [here we get into the safeguards and exceptions] the evidence was not obtained in good faith [that would be essential] and the contravention of the person's constitutional rights was intentional and significant in the context of the offence alleged." It is not a question of trampling on the accused's constitutional rights. Rather, it is a question of taking into account the circumstances in which he or she could claim a breach of those rights because of a technicality.
During my investigation of the issue, another situation emerged, namely, members of the Garda SÃochÃ¡na becoming aware of evidence, material or facts that could be used as evidence in a case or indicate to him or her that a crime has been or is likely to be committed. The garda would not have time to seek a search warrant. For example, he or she could be passing a door behind which he or she suspected criminal activity was under way.
I refer to this as the "plain sight" amendment. I do not claim to be reinventing the wheel, as this proposal stems from the law of other countries, but it is time to take it on board. It sounds ludicrous that a garda who sees or, on reasonable grounds, suspects criminal activity taking place must find a District Court judge to sign a search warrant to inspect and collect evidence. In 99 cases out of 100, the evidence is gone by the time the garda returns with the warrant. This is the basis for my proposal. How many amendments are we taking with amendment No. 17?
I will. The ruling stated that "evidence obtained in violation of a person's constitutional rights is not admissible". It is time that we took on board a new approach that is not based on trampling the accused's constitutional rights, but on ensuring the accused cannot walk out the door thanks to technicalities.
It is an opportune time to enter the debate. My constituents and I would agree with Deputy Jim O'Keeffe's proposals, which are necessary in principle. Many victims of crime see the perpetrators go free from court on technicalities. This issue must be examined. I do not know whether the Hogan group tabled the proposal before the Deputy, but it is of great importance.
I respect the fact that it would be difficult to introduce the provision as an amendment to the Bill, which is new legislation. When debating the Criminal Justice Act 2006 in detail, we saw that by adding bits and pieces towards the end of the discussion, we prolonged the affair and made it tedious. We do not have the time to extendââ
If I am in that position, the Deputy can be assured that I will table amendments.
Regarding the proposal that evidence obtained in contravention of one's constitutional rights should be allowed, which comes first, the Constitution or legislation? If legislation allows the Constitution to be thrown to the wind to a certain extent, difficulties would arise. The question of whether a referendum on the legislation is required is in doubt, but I agree with the sentiments and principles expressed in the amendments. I await the TÃ¡naiste's response.
Great minds think alike, but before Deputy Jim O'Keeffe smiles, he should wait for the rest of my reply. Approximately two years ago, the Taoiseach wrote to the Attorney General and me asking us to examine the issue. We have considered it and I will explain why it is a difficult matter.
If Dr. Hogan's dissentient opinion, which is derived from a Supreme Court opinion on the Constitution, is correct, it is not open to the Oireachtas to reverse his opinion by legislation. However, even that is not certain, as Dr. Hogan and the report in general concede. What is certain is that if I include the provision in the Bill, which would amount to a purported reversal of the Kenny case decided on by the Supreme Court, the likelihood of the Bill being referred to the Supreme Court under Article 26 would be enormous. If it turned out that Dr. Hogan was right and the majority was wrong, the Bill would fall.
If there is merit in taking a legislative approach, it should be a one-section Bill at another time, but I do not want to have this Bill fall or stand by reason of coming down on one side or another of a well reasoned argument set out in writing before us.
I do not want to speak for the Attorney General, as I do not know his precise opinion on the matter, but I have always been a supporter of the minority in the Kenny decision. With respect, the majority was wrong. This is my personal viewpoint. It seems that the best course of action would be to re-argue the case before the Supreme Court on some proper set of facts or to hold a constitutional referendum on the matter. People do not like holding such referenda if they have not exhausted possibilities.
It is to be noted that prior to the 1996 bail referendum, an effort was made to revisit the O'Callaghan case on the granting of bail in the Supreme Court to determine whether the court was adhering to the old opinion on the matter.
One should always proceed by retrying something if possible, looking to the constitutional issue subsequently and so forth.
I agree with Deputy Ardagh in respect of the notion that a garda acting in good faith could be found to have objectively breached the Constitution, despite the garda not knowing that he or she had done so or believing that it was not a breach. The evidence obtained would be excluded in circumstances where the defendant had no merits of any kind whatsoever, but he or she would walk free, which is offensive to most people. The minority, or discretionary, view in the Kenny case was that a balance had to be struck between rights rather than a rigid view being taken. I would prefer if that view were reflected in the law â that is my personal preference. I am not sure how we can get there, however. If I were to come to the House some afternoon with a one-section Bill, and explain that I wanted to experiment in such a manner, Deputies would probably ask me what the Attorney General had to say about my plan.
If I explained that the Attorney General said it was possibly constitutional and possibly not, I would have a hard time getting the legislation through the House. Some people might suggest I should instruct the Director of Public Prosecutions to revisit this matter in a suitable case before the Supreme Court. If I were to go down the constitutional route, it would be quite difficult for me to include in the Constitution an exact or bang-on formula that would not have unintended consequences. While I am grateful to Deputy Jim O'Keeffe for raising this issue â I am not being negative â I am not sure it is appropriate to make this multi-section Bill, which has various purposes, a test bench for a constitutional proposition. I accept that personal beliefs might apply quite strongly in this regard, but I do not think we should put the whole Bill in peril of being knocked on the head by getting it wrong on this single issue. While my instinct is to encourage the Director of Public Prosecutions to revisit this matter, possibly via the Attorney General in a suitable case, I am concerned that suitable cases are not encountered very often.
The merits of a particular case are not always 100% as we would like them to be. It is quite difficult, given the various circumstances which apply, to find a suitable case that is in a format in which one can bring it to the Supreme Court for an authoritative decision. I am not sure that my argument convinces anybody. The one thing I am absolutely sure of is that I will not accept this amendment â to do so would, in effect, be like carrying a bomb onto an aeroplane without knowing when it is due to go off. I cannot do that in these circumstances.
I am knocked down by all the support I am getting in principle for the propositions I am suggesting. However, I am not having much success in securing the changes in the law which I feel are necessary. We need to go back to first principles when considering these issues. The first point is that we constitute the Legislature. I respect the independence of the courts, but my first job is to legislate. I would like to set out the background to this discussion. We are really talking about whether evidence against an accused person to which technical objections can be raised should be excluded in all circumstances, thereby leading to the acquittal of that person on technical grounds. It is no harm to recollect what happened in the Kenny case, which is the leading case in this regard. The accused person was charged with the possession of drugs which were found on foot of a search of his home. Given that when they searched his home they found the drugs, of which he was in possession, one would imagine it to be an open and shut case. The accused person had some shrewd lawyers who argued the warrant was bad because insufficient information was placed before the peace commissioner who issued it, as was then the practice, to enable him to be satisfied there were reasonable grounds for granting it. How in the name of goodness does that affect the issue of whether the man was in possession of drugs?
The case itself is ludicrous. Three of the six judges held that everything was okay and the trial judge decided the warrant was valid. When the matter was passed to the Supreme Court, the majority of its members â I respect them and acknowledge they are entitled to have a view â stated that a conscious and deliberate violation of the constitutional rights of the accused person had taken place. How in the name of goodness could that stand up? It does not make sense.
That goes back to 1990. It may be inappropriate for a country attorney like me to question the views of the learned judges of the Supreme Court, but I am supported by two strong dissenting opinions within the court. I am also supported in general by the Ministerââ
We will consider him. We have to get back to first principles. It is easy to suggest that constitutional rights are being trampled on. I do not believe that is the case in this instance. I am proposing that questions of this nature should be examined in the round, that any conscious violation of rights should be prohibited and that things should be done in a bona fide manner. Such an approach has been successful in courts in other jurisdictions. We are not unique in this regard. I note in the research report I have that it was held in Australia that trial judges have discretion which is related to a number of factors, including the seriousness of the offence, the cogency of the evidence, the nature of the criminality, the ease with which the evidence would have been obtained legally and the extent to which an examination of the legislation indicates a deliberate intent on the part of the Legislature to circumscribe the power of the police in the interests of the public. If there is a deliberate intent to ensure as far as possible that those who are brought before the criminal courts are given a fair trial, then they should be acquitted if they are found fairly not to be guilty. However, they should not be allowed to walk out the door on the basis of mere technicalities which are peripheral to the essential and fundamental nature of the case.
It seems that my efforts to bring about a change in this regard will not be successful, despite the reinforcement of my view from the Government benches when the Chairman of the Joint Committee on Justice, Equality, Defence and Women's Rights openly expressed his support for such a change. I appreciate that we face time constraints. I am open to advice. I want progress to be made on this issue. I acknowledge the Minister will not accept my amendments today, so I will not pursue them further. I want a way forward to be established, although we may have to wait until after the forthcoming general election for that. Given that Deputies from the main parties on all sides of the House, including the principal Government party, are supportive of change, we should be finding a way forward. It is obvious that I do not speak for all the parties in the House in that regard.
I would like to comment briefly on this important set of amendments without prolonging the debate. A coherent case has been made. The Minister has given a reasonable response on his ability to carry this bomb on board the aircraft. There is disbelief among the general public that we cannot structure the legal system in a way that ensures glaring wrongs can be avoided. People who self-evidently should be held accountable are not being held accountable because of problems with the hour of the day or the geographical location, or because some dot or comma is not right. I appreciate that the learned judges in this country's higher courts do an extraordinarily important job in protecting the constitutional rights of every citizen. It seems that their work sometimes involves a point of intellectual debate rather than a point of justice, however. I do not think people in general understand that the law takes priority over justice. As most of us are not trained lawyers, which is a good thing, we struggle to craft decent law â to steer the juggernaut â in a way that makes eminent sense, is supported by the bulk of the people and, above all, is just and provides justice.
We will not do so today and I do not wish to prolong the debate, but there are compelling issues that must be addressed. It is not acceptable to wait for another vehicle such as a case stated before the Supreme Court. We must find a better way of doing it. It might be an effective job of work for an incoming justice committee to examine this with officials from the Department of Justice, Equality and Law Reform and external legal opinion such as the Hogan group.
I agree with what has been said. Waiting for a suitable opportunity involves hoping the DPP finds such an opportunity, but he is independent and must make decisions independently. The Legislature might be better employed in considering a single clause Bill upon which other matters did not ride, as suggested by Deputy Howlin. I placed this on the agenda to be considered by the Hogan committee and I am also concerned by it.
I remember a case where a car was searched. My former colleague, the late Eamon Leahy, SC, was defending and suggested the evidence should be excluded on the basis that there were no reasonable grounds for believing drugs were in the car. The judge, not one who ruled in the majority in the Kenny case, suggested that the fact that drugs were found under the seat of the car disposed of the argument.
Mr. Leahy stated that it is an argument in reverse to suggest that there were reasonable grounds to search the car because drugs were found. The judge famously replied that, backwards or forwards, it was common sense to him.
There is merit in examining this. I support Fine Gael and Labour in attempts to ensure that we examine this at some stage. GardaÃ are frustrated when a technicality is found in what they believe is an open and shut case. We will not be granted the time to conduct such a close examination here. We should have a single Bill dealing only with that matter. As with the last Bill the Minister published, all issues in this Bill should have been presented as a series of single Bills.
Yes, the Minister is a serial legislator. It would be better if these were single issues because we will not be able to deal with all these today or on Report Stage next week. They deserve more consideration than we have given to them.
I find myself smothered by support from Fianna FÃ¡il, the Progressive Democrats, my colleague, Deputy Howlin and Sinn FÃ©in. There is a common view in favour of the proposal. I accept this is a complex issue. Until I have the support of all parties in the House I withdraw the amendment in light of the limited time available. Perhaps we can resume the discussion on Report Stage.
I move amendmentNo. 21:
In page 6, lines 33 and 34, to delete all words from and including "one" in line 33 down to and including "person" in line 34 and substitute "an employee of the Probation Service authorised".
This seeks to ensure that if electronic tagging is agreed to, those authorised are members of the probation and welfare service rather than privatise another part of the justice system. I am opposed to this privatisation on the same basis as the privatisation of the prisoner escort system. I do not want gardaÃ sitting at a desk watching monitors, but the probation and welfare service could be resourced to undertake this function. The service has the ability and understanding of the mindset and circumstances of people on bail or those who have been convicted and tagged. If it is outsourced to a private company one cannot guarantee that interest or expertise.
Requiring a probation officer to act as a monitor is a misunderstanding of the role of the probation and welfare service. These officers are skilled people who deal with offenders. Looking at a screen and waiting for a button to flash has nothing to do with their qualifications and experience. I am not trying to be overly ideological, but Deputy Ã Snodaigh's hard left ideology is bringing him into error. It we introduce electronic tagging it would be madness to rule that only full-time public servants could monitor it. That would make it unworkable and would represent an ineffective use of public servants' time. I do not presume to speak for probation officers but they would be alarmed if I were to say on their behalf that they would be content to sit in a room waiting for alarms to sound.
If it is an ineffective use of public servants' time, it is an ineffective use of any person's time. The person does not have to be a probation officer but an employee of the probation and welfare service. Another grade could be set up specifically to undertake this task but it would be staffed by public servants and they would be answerable to the probation and welfare service. They could also gain from the experience shared by probation officers with whom they would work in conjunction.
I move amendment No. 22:
In page 7, to delete lines 18 to 22 and substitute the following:
"(e) any previous convictions of the applicant and information as to which (if any) of those previous convictions were in respect of offences committed while the applicant was on bail;".
Section 6 inserts a new subsection 1A into the bail Act. This new subsection sets out: "A person who is charged with a serious offence and applies for bail... shall... furnish to the prosecutor a written statement duly signed by the applicant and containing the following information relating to the applicant." It then sets out in paragraphs (a) to (g) what is required. I am suggesting that as regards the statement required, paragraphs (e) and (f) are deficient and I am proposing an alternative paragraph (e). The (e) I suggest, in amendment No. 22, refers to "any previous convictions of the applicant and information as to which (if any) of those previous convictions were in respect of offences committed while the applicant was on bail".
At first glance the TÃ¡naiste might say these concerns as regards (e) and (f) are captured by his amendments. However, I believe the TÃ¡naiste's paragraph (e) is too narrow in that it is limited only to serious offences. His paragraph (f) is too broad because the applicant has to set out "any offences or offence committed by the applicant while previously on bail", not convictions but any offence he or she committed. It is like being asked to write a confession. We have already had a debate about self incrimination, so I do not believe the TÃ¡naiste can ask people, in effect, to write a confession as regards any offences they have committed before they can apply for bail, regardless of whether they have been charged or convicted. I do not believe this is right.
The formulation I suggest deals with previous convictions which do not necessarily have to be serious and requires convictions to be set out that occurred while the person was on bail and is a preferable listing for the applicant to make before a bail hearing.
I am sufficiently impressed by Deputy Howlin's amendment to accept it. I may have to look at the wording, but I shall accept it for the time being.
I move amendmentNo. 23:
In page 7, to delete lines 23 to 26.
This amendment involves the deletion of paragraph (g). This is a major change because a judge should make his or her own decision on the basis of the application before the Bench and not on the basis of previous decisions taken by judges as regards applications relating to totally different charges. That is one of the concerns I have as regards this whole section. While there might be some logic to it, it is not as well thought out as it should be. Further discussion might have corrected some of the problems I have in this regard.
This section as a whole mentions that the person has to furnish the prosecutor with a written statement, but does not mention a timeframe, while later on it states that a court may extend the period for the production of same. Perhaps the TÃ¡naiste might explain whether this statement has to be given within a week, a day, or a few hours after the application for bail has been made.
Briefly as regards (g), it would not oblige a court to follow other previous judgments made in respect of a person. However, if a person has been refused bail on eight occasions, why should this not be brought to the attention of the ninth judge? It would be strange if a judge were not to hear that type of material evidence.
As regards subsection 5(a), extending the period for production of the statement by the applicant, the Deputy is correct that the section does not, in fact, specify a period. I will consider this between now and Report Stage, but I believe what is meant is that it must be done at the time the person is making his or her application. If a person comes to court without it, he or she can be asked to give the statement then, during the day or whatever, which amounts to an extension as regards the further information required. I will examine this to see if there is a point there.
I move amendmentNo. 24:
In page 8, line 15, to delete "may" and substitute "shall".
If a court believes publication would prejudice a trial, then I believe it should definitely prevent this. Hence the change from "may" to "shall" to ensure that in all cases where a court believes a future trial might be prejudiced, publication is prevented. Amendment No. 29 would have the same effect, to make matters more definite rather than leave them open ended.
If that were changed to "shall" it would cast a duty on the court to work this out in any particular case. I do not want newspapers to believe they are free to say anything they like about what happens in a District Court, unless a court orders otherwise. I want them to share responsibility in this matter. I will look at it again, but I am happier with "may" there, because it might be implied that if a mandatory provision was inserted, newspapers would be free to do anything they like unless such an order was made as regards a manner that would prejudice a trial.
I move amendmentNo. 25:
In page 8, line 23, after "order" to insert the following:
"provided this would not in the view of the court prejudice the applicant's right to a fair trial".
This amendment is self-explanatory and I will not labour the point. The rider, "provided this would not in the view of the court prejudice the applicant's right to a fair trial", is a given, anyway, but it is important to have it stated.
I have been looking at the section not from a critical viewpoint because I like the idea involved. Perhaps now is the time to try to find holes in it, however. What if the person charged is illiterate, if that is the politically correct term, and unable to produce a written statement? It must also be signed by the applicant. I have occasionally come across cases where an individual has signed with a mark because he or she cannot sign his or her name.
I agree with the intent of the section. However, in the case of an individual with many convictions, he or she may not have the information to hand and cannot properly fill out the bail application. I have often seen cases where there is a reference to, say, 39 previous convictions. From a practical viewpoint, an applicant could be honestly unable to complete a bail statement because it would be impossible to remember, say, all 39 previous convictions.
Subsection (7) states, "any witness may, with the leave of the court, be examined on the content of the statement". Should this be "applicant" as the section refers to bail applications? The preceding subsection states, "the statement shall be received in evidence ... if it purports to be signed by the applicant".
The section also refers to improper publication where the court may by order direct that no information be broadcast or published. What will be the consequences of breaches of such an order? Is an offence for this created later in the legislation?
Depending on how Deputy Andrews drafts his Bill, there may be no problem with expunging previous convictions after a certain period has lapsed. I have considerable sympathy for the proposal. However, we must be careful as to what offences are not included.
I do not know whether Deputy Andrews's proposals will involve an application to a court to have records cleared or that it will happen with the efflux of time.
The written statement does not mean it is in the applicant's handwriting. It is anticipated that there will be a prescribed format for the statement and the person concerned will have to fill it out to the best of his or her knowledge and belief. He or she can have it filled out on his or her behalf by a lawyer and sign it some way.
A signature can be a mark. I will examine the situation where an applicant may have such a string of convictions that he or she could not remember them all. A clause can be inserted that it is to the best of one's knowledge or belief. I do not want a situation where the accused can ask the Garda for a list of previous convictions.
I accept that and I am glad the point has been raised. I do not want a situation where an individual with 85 previous convictions must give chapter and verse for each of them from memory when filling out a bail application. On the other hand, having three convictions for murder should stick in one's mind.
Regarding subsection (7), there will be an insertion in the 1997 Bail Act, of which section 4(4) provides that if any matter is published in contravention of the provisions of subsection (3), a number of people commit an offence, both summary and on indictment. Section 6(15) of this Bill includes a cross-reference to the Bail Act.
There may be occasions on which witnesses, other than the applicant, are giving evidence in support of the bail application. If, for instance, an individual was to provide the applicant with accommodation, he or she could be examined on what was in the statement, with the leave of a court.
I move amendmentNo. 27:
In page 9, to delete lines 4 to 10 and substitute the following:
"(1) The opinion of a member of An Garda SÃochÃ¡na shall not be considered evidence of any fact or likelihood other than of his or her own opinion in proceedings under section 2.".
A member of the Garda SÃochÃ¡na, not below the rank of chief superintendent, can give evidence that he or she considers there are reasonable grounds for refusing bail. A similar provision is already contained in the Offences against the State Act. I have always expressed concern about this provision. If a member of the Garda SÃochÃ¡na has evidence against a person of a serious offence, that person should be charged. It is not good enough that it can be based on an opinion rather than fact-based. I strongly hold the belief, as I have argued in regard to the Offences Against the State Act, that much more than a person's opinion is required if the taking of a person's liberty is under consideration, which is what we are talking about in this instance. We are talking about a bail application. Such an approach is treading on dangerous ground. I understand where people are coming from but there is an onus the Garda SÃochÃ¡na and the Director of Public Prosecutions who is taking the case to present evidence. Judges do not like to refuse bail because of the length of time it takes for a court case to be heard. That is often the reason bail is granted, even when a judge is not sure he or she should do so. One way to address that is for cases to be heard quicker in the courts. In fairness to the Minister he has allowed for extra judges to be appointed to reduce that delay. Perhaps that will somewhat address this issue. We are treading on dangerous ground when we allow a person's opinion to be treated as evidence in itself.
I tabled a one word amendment to section 7 but my concerns go much deeper. Section 7 creates a new section 2A in the Bail Act 1997. I made a reasonably long submission in my Second Stage contribution about the real fears that were alerted to me by my legal advisers at the time that section 7 is unconstitutional. Unfortunately, the Minister did not respond in any way to that point at the conclusion of that debate. Since he has rejected already an amendment from Deputy Jim O'Keeffe on the basis that it potentially would be a time bomb because he could not guarantee its constitutionality, I alert him to the real fear presented to me that the new section 2A is unconstitutional.
I checked it subsequently beyond the legal advisers available to me in my work here. I have the learned advice of a very distinguished senior counsel on this point, which I will share with the House if I may. I have also been told that a learned professor of law who read this opinion also agrees with this view.
The view on this point states:
There must be a serious question about the constitutionality of the proposed Section 2A by way of addition/amendment to the Bail Act, 1997. It is proposed that where a Garda not below the rank of Chief Superintendent gives evidence of a belief that the refusal of the application for bail is reasonably considered necessary to prevent the commission of a serious offence by the Applicant, such statement "is evidence that refusal of the application is reasonably considered necessary for that purpose". ...
If the section is enacted as it stands it will carry the presumption of constitutionality which simply means that when it comes to a consideration of its constitutionality [in the courts] the courts must proceed on the basis that where two possible constructions, one constitutional and [one] ... unconstitutional, are available, the Court must adopt that interpretation which conforms with the Constitution.
The difficulty with the section as it stands is that it seems to seek to place the Bail Court in a position of being statutorily obliged to accept the evidence of opinion that is put [to]...it. Thus, whereas section 2(1) permits the Court to refuse an application where it is satisfied that such refusal is reasonably considered necessary to prevent the commission of a serious offence the requirement that the Court should be so satisfied is fulfilled where "the statement is evidence that refusal of the application is reasonably considered necessary for that purpose" as provided for the proposed Section 2A(1).
On...[the] face [of it] the new provision seems to require the Court to refuse an application where it has evidence of the prescribed opinion although a...[reasonable] connection between that opinion and the refusal of bail to the applicant has not actually been established to the satisfaction of the Court.
Whereas one might view the entirety of section 2 and the new section 2A on the basis that section 2(1) is the controlling section which requires the Court in all instances to be "satisfied" it seems to be quite clear that the proposed section 2A is intended in some way to derogate from section 2(1). It becomes a question of the extent of the derogation and it seems clear that section 2A(1) has been drafted in a way so as to make it clear that the Bail Court must act on the unrebutted evidence of [the] opinion of a Garda of the rank of Chief Superintendent [or above] by refusing the bail application.
It seems reasonably clear from the language adopted that this is the intention of the draughtsman in this case. Thus, the presumption of constitutionality is of little aid. So, for instance, in a case where there is...no evidence except that of the Chief Superintendent it is difficult to see how the Bail Judge could be satisfied that refusal of the application was not reasonably considered necessary to prevent the commission of a serious offence. Indeed it would appear that no matter how well the opinion of the Chief Superintendent was undermined by cross-examination the fact that he gave the opinion on oath would render it evidence upon which the Bail Judge must act.
Article 34 provides for the administration of justice in the Courts established by the Constitution. However, this proposed amendment to the 1997 Bail Act appears to be open to the principled objection that it would have the effect that Bail Judges would be placed in a position of having to suspend their judgment on the issue of the satisfactoriness of the evidence grounding [the]...objection to bail where the Garda authorities [above the rank of Chief Superintendent] considered the refusal of the application is "reasonably considered necessary" to prevent the commission of a serious offence.
In essence, I have tomes of opinion but this is the clearest exposition of it that I wanted to present. It is the opinion of people whose opinion is respected across the House. I will not give the names of the individuals unless I am asked to do so because that would be disingenuous. I cite the fear that there is a substantial difference between this and the provisions that have been applied in the Offences Against the State Act. This is not evidence that is rebuttable and on which the court can make an independent decision. While they certainly can cross-examine the witness, as stated, the mere assertion itself is the evidence.
Section 2A(1) in section 7 is inelegantly drafted and that is the reason I drafted my amendment, but that is a separate issue from my concern about its constitutionality. I propose the deletion of the word "considered" in the last line of it. The section states, "...the statement is evidence that refusal of the application is reasonably considered necessary for that purpose", but surely it should state "the statement is evidence that refusal of the application is reasonably necessary for that purpose". What is being judged in this instance is whether it is reasonably considered necessary. It is the consideration that is being judged as opposed to the necessity. It seems perhaps to be meaningless, as currently drafted. If the Minister wants to proceed as he intends to, at least the Garda evidence should be relevant to the issue that is before the court.
There are two separate issues, which perhaps I may not have outlined elegantly. The first is the genuine fear that the provision, as drafted, may be unconstitutional and may well put the entirety of the Minister's proposals in jeopardy for that reason. The second is that the provision is inelegantly drafted and would be made clearer, if the Minister wants to persevere with it, by the acceptance of this amendment.
I have always accepted the position that a chief superintendent or a member of the Garda SÃochÃ¡na could have an opinion as to whether somebody was a member of, say, the IRA. I was always happy to have that opinion accepted and taken into account by the court because it was an opinion as to fact. I can see what the Minister is trying to get at here but he is going about it the wrong way. How can an opinion that somebody will commit a crime in the future be taken as a fact in any circumstance?
It is an opinion that somebody will commit a crime and I question how it can be expressed to be evidence as it stands logic on its head. If the TÃ¡naiste were defending the applicant for bail, the first question he would ask would be which serious offence was in mind.
It is a case that the person is of a criminal nature and could commit any offence. I recommend the TÃ¡naiste goes back to the drawing board. I see his point and I support the idea but to suggest that a chief superintendent having a general view that an applicant for bail would commit any offence in the future and regarding this as evidence of the fact, is turning the English language on its head. Is there not a case for saying that if the chief superintendent expresses an opinion on the basis of the past record of the applicant that he is likely to commit further offences, that this opinion will be taken into account? Is this what we are trying to get at? Trying to suggest that this opinion is hard evidence does not stand up in logic. There is a danger that if we put together law that does not stand up in logic, some bright lawyer will find loopholes in it and have it overturned on constitutional grounds or otherwise. I am merely suggesting a reformulation to achieve the effect which the TÃ¡naiste undoubtedly wishes to achieve and which I support.
I also have some concerns about the subsection, particularly in light of the Supreme Court ruling in the Shortt case last week where the evidence of the gardaÃ on the facts was questioned as to whether it was the truth and the whole truth. The fact that a chief superintendent is designated in the subsection implies that a lesser mortal, such as a superintendent, an inspector or a sergeant, may not be up to the case. I question the reasoning for this designation. The subsection states that the chief superintendent, "believes that refusal of the application is reasonably considered necessary to prevent the commission of a serious offence by that person". Does this mean that a chief superintendent, an inspector or a sergeant actually considers it necessary and that the chief superintendent states in court that it is considered necessary without having to say at which rank this decision was made? It might be necessary to bolster this with the chief superintendent having to perform a comprehensive review of the file in front of him before he states that he personally considers it reasonably necessary, having reviewed the file, that an offence may be committed by this person.
The Garda SÃochÃ¡na has a lot of work to do as a result of the Donegal situation; it cannot be given carte blanche regarding evidence given in court about serious charges. The force must earn again the full respect of the community and we should be careful not to give it carte blanche as stated in the Bill. I acknowledge that the majority of gardaÃ would take their responsibilities seriously and tell the whole and unvarnished truth. However, we must ensure that the ethos within the Garda SÃochÃ¡na is such that this would be the case for 100% of gardaÃ.
I have listened to Deputy Howlin expound this view and I was interested to hear him elaborate on it now. Two issues arise, the first being the issue as to whether the word "considered" should appear in the last line of the subsection. I will examine this carefully. That something is evidence of something does not ascribe weight to it of any particular kind and does not oblige somebody to accept it even in the absence of contradictory evidence but it does make it admissible in the proceedings.
I ask the House to bear in mind that I am moving amendment No. 31. At the moment opinion evidence is admissible in bail applications and I did not wish it to be said the only evidence admissible from now on would be that of a chief superintendent because many of these cases are dealt with in the District Court and we cannot have chief superintendents ferrying around the country to shore up cases in that way. The real issue is whether on the grounds of reasonable necessity we are prepared to make the evidence of a chief superintendent â who by definition is subject to cross-examination if somebody does not agree with his opinion â corroborative of the proposition that the Garda SÃochÃ¡na is arguing.
It is not proof positive. I will be careful in my language. I would not agree with Deputy Howlin that it makes it conclusive evidence on the matter.
It is evidence but it does not prescribe the weight to be attached to that evidence and if it is cross-examined it could dribble away to nothing. If it appeared in the circumstances that it was a gratuitous or arbitrary opinion, then that evidence may mean nothing but at least it is admissible in the matter.
I will look at Deputy Howlin's proposed amendment which is the taking out of the word "considered" because it may well be that this is a matter for the court rather than a matter for the superintendent. If we proceed on the basis that a chief superintendent may give evidence that he is of the opinion that a withholding of bail is reasonably necessary and that the court may receive that as evidence in the matter, it is something that the court can put into the balance against the evidence given by the applicant. It is the case at present that opinion evidence is admissible and the amendment No. 31 in my name is designed to make it clear that this will not wipe out all other opinion evidence being received in a case of this kind. The amendment is designed to ensure that a chief superintendent's evidence shall be admissible on the grounds outlined.
A chief superintendent may not have arrested a person but he is empowered to carry out a search to discover who are the individual's antecedents, his or her connections to others involved in organised crime etc. He can give his opinion and, in such circumstances, counsel or the solicitor acting for the applicant can inquire as to the basis on which he arrived at that opinion. If a chief superintendent refuses to provide any basis, the court will inquire as to what import it is to attach to his opinion.
It is noticeable, in the jurisprudence of the Special Criminal Court in respect of opinion evidence, that if a chief superintendent merely provides evidence of opinion of membership, does not elaborate on it and is contradicted on oath, as far as I know, convictions never follow.
The phrase "that it is evidence" does not mean that it is conclusive evidence which a court must follow or to which it must attach a degree of weight. The phrase in question merely means that it is evidence along those lines. If, at the end of the argument, the court is to inquire whether it has any evidence that the prosecution's case is correct, the answer will be that it has that provided by the chief superintendent.
I agree that there is a difference, in principle, between opinion as to past fact and opinion as to possible future developments. The courts must operate on that basis. If an engineer states that a building will fall down unless remedial work is carried out, that is an opinion, based on certain considerations, regarding a future development. Opinion evidence does not have to be confined to past facts. Opinion as to past facts is probably less admissible than opinion relating to future hypotheses.
I will reconsider the position regarding deleting the word "considered" because I accept Deputy Howlin's point in that regard. However, I do not accept the proposition that this is somehow being made into coercive, conclusive or overwhelming evidence that the court's function in this under the Constitution will be abrogated by a chief superintendent coming before it and stating his belief that a case must be decided in his favour. I do not believe the court would construe the meaning of the provision in this way. Constitutional construction must be held and I am not contending that a chief superintendent may oblige a court to hold in his favour by simply tendering a statement to it.
I welcome the TÃ¡naiste's thoughtful response and his commitment to reconsider the position. I am putting forward two separate propositions. The first of these is the actual constitutional basis of the provision. This goes beyond the notion of being able to provide an opinion as to future events as opposed to an opinion as to past or current facts, which are a different matter. However, that is not the point I am making. I am asking the TÃ¡naiste to deal with an issue that arises on foot of advice I received from a distinguished senior counsel who stated that, on the face of it, the new provision seems to require the court to refuse an application where it has evidence of the prescribed opinion although a reasoned connection between that opinion and the refusal of bail to the applicant has not actually been established to the satisfaction of the court.
If the advice I received is correct, it appears that the constitutional prerogative of the court to be free to take action would be undermined and that it would be required to accept a chief superintendent's evidence, in the absence of any other evidence, as to the likelihood that an applicant will commit offences on bail and be then required to refuse such bail. If the TÃ¡naiste provides categorical assurances that this was not his or the parliamentary counsel's intention or if he can indicate whether he would accept any other form of words that might make his intentions clearer, I would be more content.
It is not the intention of the parliamentary counsel or me that some formula of words might override the issue. In my view, opinion evidence from a chief superintendent shall be receivable. However, the weight to be attached to that evidence or the import it carries are entirely matters for the court.
Not necessarily. A garda's means of knowledge might have to be established in advance of his or her giving evidence, particularly if he or she was challenged. If a chief superintendent was asked whether he possessed any knowledge of a matter or whether he had investigated it or carried out research in respect of it, his evidence would be of no value if his answer was that he had never previously heard of the accused and was merely present to support the garda sergeant giving evidence. That is not what it is all about.
I intend that, in serious cases, the Garda SÃochÃ¡na will be in a position to tender as admissible witnesses senior officers who will have researched matters before the courts. I do not intend that it will merely be a case of arresting officers being asked to come to court to provide their opinions.
The circumstances are such that a court would be almost bound to inquire as to why a chief superintendent offered certain information and what he knows about the accused. If the person had a spotless record and the chief superintendent stated----
In those circumstances, the judge would state that he or she would be obliged to make up his or her own mind and that he or she could not decide what weight to attribute to the chief superintendent's evidence. There is also the question of an accused stating that he or she would attend for his or her trial. The court is obliged to weigh up all the evidence and arrive at its own judgment in respect of such matters.
On the TÃ¡naiste's final point, bail applications are often made within hours of an arrest. Is he seriously stating that a chief superintendent would be able to make himself aware of the requisite knowledge relating to a person in that time? That is a strange procedure. As Deputy Howlin stated, gardaÃ are already in a position to make their opinions known but this is not regarded as evidence. It is stated in the new section 2A(1) to be inserted into the 1997 Act that the "statement is evidence". In addition, the new section 2A(2) states: "Evidence given by such a member in the proceedings is not admissible in any criminal proceedings." If the evidence is not good enough to be admissible in criminal proceedings, it should not be acceptable in respect of a bail application because, at that stage, it would be no more than hearsay, rumour or supposition. The judicial system is not based on hearsay, rumour or supposition, it is based on provable fact. Opinion is not provable.
In previous cases, chief superintendents argued that their opinions were based on confidential material. Thankfully, the courts eventually ruled that this was not sufficient. A recent change to this assertion on the part of chief superintendents was that their evidence was based on evidence contained in Garda files. Defence counsel are not in a position to access such files and are not, therefore, in a position to rebut any presumptions a chief superintendent might make in offering his or her opinion. As events in Donegal have shown, gardaÃ can be vindictive. We need to ensure that nothing in the future allows such a person to block somebody from liberty. If a court decides in time to convict somebody, that person will be convicted on evidence of provable facts. Even in the case of bail applications, we should not allow for hearsay or rumour to prevent somebody from being at liberty.
It is the case at present, as has been pointed out, that hearsay and opinion evidence is admissible on bail applications and I do not intend to diminish that now. As far as bail is concerned, it is my intention, save in the cases provided for in subsections (4) and (5), that there should generally be this statement of application for bail in the written form. Obviously, in run-of-the-mill District Court cases such as burglary, the district judge may well state that he or she is dispensing with the need for a written statement in this ordinary case and as it is common case that the person concerned has two previous convictions, there is no point in having him or her write the history of his life, and his or her assets are of no interest to the court.
The court has power to dispense completely with the written statement procedure if it thinks it is a waste of its time. I presume that in most cases the prosecutor would not require the filling out of this written document because it would merely delay proceedings. Where there is a contested case, what is necessary now is to put the applicant for bail into the circumstance of having to set out the facts of the matter and to back them up with evidence. This is because often the garda must get into the witness box and take an oath to give evidence on the application, but the applicant simply sits there concealing all sorts of matters, for instance, including facts such as that he or she has committed previous offences while on bail. In contested cases this will tie applicants to bail to some version of their own history, which is capable of being met by the prosecution.
I meant to bring a copy of the Shortt judgment with me because I wanted to mention it. Deputy Ardagh is correct, the entire judgment made horrifying reading. Wise and learned opinion was quoted from a former US Supreme Court Associate Justice, Mr. Justice Thurgood Marshall, in giving the Supreme Court's decision in the Shortt case. It gave a clear message to the Legislature, and I suppose to the Judiciary too, not to rely simply on verbal evidence from anybody, no matter how eminent, or to give the supposition that the word of one category of individual, a policeman or policewoman, is always correct and always superior to anybody else's evidence. The TÃ¡naiste is doing that in this Bill. It runs counter to the spirit of the Shortt judgment and the clear warning we got from the Supreme Court on these matters.
I recall that in the last Criminal Justice Bill there was a proposition to give additional powers to the gardaÃ in the case of search warrants which we removed on foot of the most recent batch of reports from the Morris tribunal because of that issue, that we had to be careful giving authority. This is fundamental. It relates to the liberty of individuals on the word of any individual. We must deal with great care with that matter.
I am obliged to Deputy Ardagh for reminding me. I thought I had a copy of the Supreme Court judgment in my bundle of papers â it is on my desk upstairs â because I certainly wanted to refer to it.
I understand that the TÃ¡naiste is considering amendment No. 28 for Report Stage.
I move amendment No. 31:
In page 9, line 29, to delete "belief or of evidence of opinion" and substitute the following:
"belief, or of evidence of opinion, whether tendered by any member of the Garda SÃochÃ¡na or other person".
By way of request for information, I raise the issue of what exactly are the instruments that would be considered adequate evidence of title to property. Are we speaking of share certificates or what? As this deals with moneys being paid into a court as a surety or as a condition of recognisance and the possibility of other security being accepted in lieu of such payment, the question arises as to why an instrument of title to property will not be accepted.
We do not want title deeds handed over in court and it is not reasonable to ask persons to produce evidence of their title deeds because that would necessitate persons going to building societies or solicitors' firms and the searching of safes for these documents. This deals with instances where, for instance, a person has a joint account or something that is not real property, about which the court could ask for a bank manager's or building society manager's letter stating that the person is the owner of the account concerned.
The only difficulty with that is that while one was handing over a letter from the bank manager, the account could be cleaned out the following day. I would have thought that this referred more to an instrument that might be a share certificate or a document like an old deposit receipt without production of which the bank account could not be cleared.
It could be a bank draft, I do not know. I do not want to be prescriptive in this regard. It is for the court to decide what it wants by way of evidence of title. One cannot merely shove something such as a bearer's bond in front of a court and state that it will do, without the court knowing from where it came or who had the right to produce it.
No. I want to provide that where the court wants to take some security, it is possible and made easy to produce such security, and that no obstacles are unnecessarily thrown in the way. I am not trying to make it more difficult for persons to get liberty where a court wants to give it to them, I am trying to make it more possible for a court to give it to them.
In America, walking along the streets one sees bail officesââ
Would it include, for example, the family home? Could somebody use the family home as collateral for bail and, if so, would that leave the State exposed if he or she did not appear for trial? The family home would have to be seized in order to make good the conditions of bail.
The subsection provides for cases where a court requires the payment of moneys into it. It has nothing to do with people being asked to prove they own their homes.
I move amendment No. 32:
In page 10, line 9, after "bail" to insert "and shall otherwise be of good behaviour".
I am advised that section 6 of the Bail Act 1997 requires a person, as a condition of bail, not to commit an offence and to be otherwise of good behaviour. Section 9, as framed, seems to remove the latter requirement and I wonder why.
Great minds think alike. I felt there was nothing wrong with the good behaviour provision but the Attorney General is worried that it is too vague to include in a statute which has consequences for breaches. He was of the view that the provision should be removed, having regard to sudden developments in jurisprudence on the European Convention of Human Rights and the undesirability of using vague or uncertain language.
My difficulty is that the requirement seems to have been weakened. I am not suggesting the requirement to be of good behaviour should be added because it already is included in section 6 of the 1997 Act. It must have cleared all the legal obstacles then obtaining.
The Attorney General is worried about it. If somebody is on bail following a bank robbery and gets involved in an altercation or breach of the peace which has nothing to do with the case such as a shouting match with neighbours, will that amount to a breach of the bail condition? Section 6, as it stands, states the accused person shall not commit an offence and shall otherwise be of good behaviour. Therefore, what are we talking about?
The problem is that the accused cannot be brought back before the court on the basis of activities which do not involve good behaviour. According to the new version, he or she cannot be brought back, unless convicted of another offence.
The phrase "shall not commit an offence while on bail, and shall otherwise be of good behaviour" is clearly intended to deal with categories of behaviour other than the commission of an offence.
I move amendmentNo. 34:
In page 11, to delete lines 36 to 38 and substitute the following:
"(c) if the Probation Service is to be responsible for monitoring the person's movements electronically, the Probation Service.".
This section deals with electronic monitoring. I am opposed to this proposal for a number of reasons. In the context of the Criminal Justice Bill 2004, the TÃ¡naiste said electronic tagging would have to prove more efficient and less expensive than traditional probation and welfare measures. However, we have not seen any evidence to prove this.
The only information I have been able to locate on electronic tagging is contained in a report by the British probation service which found that electronic tagging cost twice as much as supervision by members of the probation service. The private security companies which administered the electronic tagging schemes did not routinely follow up violations by individual offenders and the British Government paid private tagging companies approximately three times the actual cost of each offender monitored. The report concluded that electronic monitoring did not lead to a reduction in the level of reoffending.
I cited that report last year and have not yet been contradicted. It is a pity we do not have sufficient time to debate this issue. When the TÃ¡naiste heard our argument, he said he was initially in favour of electronic tagging but as more evidence emerged, he agreed to reconsider the issue because he said his enthusiasm for it was ebbing. He stated:
When the data began to emerge, I wondered where it was worth the candle, but rather than walk away completely from it, it is included in limited form in the legislation ... I have not yet generated plans for its immediate roll out, other than, perhaps, on a pilot basis.
That statement concerned people who were convicted but we have not seen the pilot project, the new evidence which proves electronic tagging is the greatest thing since sliced bread or the additional investment needed in the probation and welfare service to ensure it has the capacity to monitor persons on bail or after release. Deputy Howlin asked for evidence on whether electronic tagging worked and data on the numbers tagged in Britain, to which the TÃ¡naiste replied:
I know from listening to BBC Radio 4 that a fair number of crimes were committed by people who were under the supervision of the probation service in the UK. I presume the same applies in this instance.
He is correct that no system is infallible but we need to examine the matter in closer detail before we start to undermine the rights of people who are presumed innocent. In last year's instance, we addressed people convicted by the courts. The provision needs further examination. With regard to last year's proposition, the Irish Human Rights Commission, which has not had an opportunity to prepare its considered opinion of this legislation such is the haste with which it is being processed, stated electronic tagging should not be used as a replacement for the Probation and Welfare Service and should not result in resources being diverted away from this service, which is under resourced. The commission favours alternatives to electronic tagging.
Judges in other jurisdictions have issued tagging orders like Smarties because they can avoid the procedures such as those proposed by the TÃ¡naiste regarding bail applications. I am inclined not to agree this proposal because evidence has not been presented to us and because, since the TÃ¡naiste stated electronic tagging will be monitored by the private sector, further elements of the criminal justice system will be privatised.
I may have misheard the TÃ¡naiste but he said he was determined to leave no stone unturned. Given the rapidity with which he is progressing this legislation, there is deep seated concern and unease at his efforts to play to the gallery on the crime issue. It is farcical on his part to rush this legislation while amending his own proposals on the hoof, particularly when the Hogan report has not been considered in detail. By not waiting to consider the balance in the criminal law review group's report, this will institutionalise the concept of putting the cart before the horse.
The Green Party has major concerns about the legislation and its provision for a seven-day detention period, amendments to the bail laws and the right to silence and electronic tagging. We should move slower on these issues. Discussing a seven-day detention when Mr. Justice Morris's tribunal has not concluded and, therefore, granting the Garda such significant authority when its authority has been called into question does not make sense.
A pilot project on electronic tagging should be implemented before the section is enacted. The provision is at odds with the TÃ¡naiste's reply to a parliamentary question last year, as Deputy Ã Snodaigh highlighted. The TÃ¡naiste stated the section would only apply to serious offences but the evidence from abroad is tagging does not work for such offences. He is not heading in the right direction on this issue and there is an absence of commitment to good, old fashioned policing methods. I am deeply worried at the bulk of the provisions in the legislation and I, therefore, oppose the section.
I strongly urge support for electronic tagging. I have examined documentation since our earlier discussion on this issue, which states electronic tagging works in other countries and it is cost effective. An early release programme, which uses such tagging, is provided for in previous legislation. If I had the option of being held in custody pending trial or being released on bail with a tag, I would prefer the latter. That would not be a diminution of one's civil liberties. On the contrary, electronic schemes have worked in other countries. In the UK, 80% compliance has been achieved with the terms of the tagging while almost 90% has been achieved in Sweden.
It has also been found in the UK that very few offenders who completed curfew orders breached other community penalties that ran alongside. That is why I would like people to have an open mind regarding such new technology. It would be an addition to the range of instruments available to deal with criminals and significant savings could be made. For example, the cost of home detention curfews in the UK was approximately StgÂ£880 per month whereas it costs â¬2,000 per week to keep somebody in custody in Ireland. In addition, we do not have sufficient prison accommodation, as evidenced by the more than 3,000 early release orders made last year, many of which clearly related to overcrowding.
We should actively embrace this technology and put in place the procedures to make it operational as quickly as possible. We should not be deterred because electronic tagging rather than GPS tracking is more readily available and is proven to work. It should also be borne in mind that offenders also benefit significantly. An offender, for example, could retain his or her employment and his or her relationship with his or her family. Above all, electronic tagging is a cheaper alternative to custody and it works. Perhaps my approach to the criminal justice system is very much rooted in practicality but surely such a practical solution should be embraced with open arms.
We have had a reasonably lengthy discussion on this issue and I would like to move on to important issues such as the seven-day detention provision for listed offences. I would like the TÃ¡naiste to comment on his change of mind since he received a letter on that matter. Will he indicate the other amendments he is minded to take, as we approach the end of the debate? We are on section 11 of a 51 section Bill and we need to know where we stand on that because this is not an adequate Committee Stage debate.
I have an open mind on tagging but I remain to be convinced. I am wary of an unproven technology but if it provides for the release of criminals without having to incarcerate them while ensuring they are no danger to the public, it may be a useful device. I am not convinced the technology is good enough to do that. We will return to the practicality of tagging on another occasion.
I presume the TÃ¡naiste will rebut the arguments. With regard to Deputy Jim O'Keeffe's comments, the Home Office in Britain said that rather than diverting people away from prison, more than 80% of electronic tagging orders were used for people who would not have received custodial sentences in the first place. That, therefore, implies an additional cost rather than a saving. There is a presumption of innocence and, therefore, tagging represents a diminution of civil liberties. Politicians rather than judges will have to take the cost implications into account. In fact, Members' ability to make proposals is restricted by Standing Orders on the basis of cost. This means that judges will impose electronic tagging orders on a wide range of people, which will constitute an additional cost.
In itself, tagging will not prevent people from reoffending. Those at whom the Minister stated this legislation is aimed, namely, major drug barons who order or organise crime empires, can so do from their homes and nothing in a tagging order will prevent this.
Another problem with this measure concerns someone who is on a charge but who has a livelihood that requires him or her to move away as this would be prevented by a tagging order. For example, fishermen and fisherwomen around the coast would be affected by this legislation. Will such individuals be tagged to remain at home with a resultant loss of livelihood because they breached some fishing regulations? This Bill has implications for that industry.
The Dail Divided:
For the motion: 68 (Michael Ahern, Noel Ahern, Barry Andrews, Seán Ardagh, Martin Brady, Séamus Brennan, Joe Callanan, Pat Carey, John Carty, Donie Cassidy, Paul Connaughton, Brian Cowen, Seymour Crawford, John Cregan, John Curran, Noel Dempsey, Tony Dempsey, John Dennehy, Jimmy Devins, Bernard Durkan, John Ellis, Damien English, Michael Finneran, Dermot Fitzpatrick, Seán Fleming, Jim Glennon, Noel Grealish, Mary Harney, Seán Haughey, Máire Hoctor, Phil Hogan, Joe Jacob, Billy Kelleher, Tony Killeen, Séamus Kirk, Tom Kitt, Conor Lenihan, Michael McDowell, Shane McEntee, Paul McGrath, John McGuinness, Paddy McHugh, Olivia Mitchell, John Moloney, Michael Mulcahy, Gerard Murphy, Dan Neville, M J Nolan, Éamon Ó Cuív, Seán Ó Fearghaíl, Charlie O'Connor, John O'Donoghue, Jim O'Keeffe, Fiona O'Malley, Tim O'Malley, Tom Parlon, Peter Power, Seán Power, Dick Roche, Mae Sexton, Brendan Smith, Michael Smith, David Stanton, Noel Treacy, Dan Wallace, Joe Walsh, Ollie Wilkinson, G V Wright)
Against the motion: 28 (Tommy Broughan, Jerry Cowley, Seán Crowe, Ciarán Cuffe, Eamon Gilmore, John Gormley, Tony Gregory, Séamus Healy, Joe Higgins, Michael D Higgins, Brendan Howlin, Finian McGrath, Liz McManus, Arthur Morgan, Catherine Murphy, Caoimhghín Ó Caoláin, Aengus Ó Snodaigh, Brian O'Shea, Jan O'Sullivan, Séamus Pattison, Ruairi Quinn, Pat Rabbitte, Eamon Ryan, Seán Ryan, Trevor Sargent, Joe Sherlock, Róisín Shortall, Emmet Stagg)
Tellers: Tá, Deputies Kitt and Kelleher; Níl, Deputies Stagg and Ó Snodaigh.
Question declared carried.
On a point of order, we have had an excellent, genuine and constructive debate for the past few hours during which we dealt well with 11 sections out of 51 and 34 amendments out of 156 with no filibustering. What is the Government's proposal for adequately debating the balance of the provisions of the Bill and the amendments?
I know Deputies are hanging around. This has been a very constructive and good debate. We made useful changes to the law and found anomalies. We discussed 11 sections out of 51. A total of 156 amendments were tabled and we have not discussed serious issues such as seven day detention. It cannot be acceptable that we simply pass a Bill having discussed 11 sections. Will the TÃ¡naiste schedule Committee Stage again next week to finish the balance? He will have full co-operation from this side of the House to do so.
We could have made much more progress were it not for the fact that an extraneous matter was discussed which was worthwhile but not related to the Bill proposed.
It was another proposal of a far-reaching nature. I fully accept people are entitled to table amendments but the person chose to discuss matters which were not in the Bill. On behalf of the Government, I propose to accept amendment No. 64 and Deputy Howlin's amendment to amendment No. 155. With regard to the repeat offenders provisions, it is my intention to table Report Stage amendments to move the threshold from one year for the previous conviction to five years and to remove the reference to burglary and robbery from the section in its entirety. It will deal with grave offences committed by somebody who already committed a grave offenceââ
The Deputy should appreciate I also accepted amendments from him today. At the beginning of the process I indicated I would accept reasonable amendments from whatever source they come.
I know Deputies want to deal with the issues in this Bill. If they exercise some degree of discretion about retabling Committee Stage amendmentsââ
ââwe will get every aspect of the Bill considered on Report Stage next week. I also intend to have a full debate on this in the Seanadââ
As it is now 4 p.m. I am required to put the following question in accordance with an order of the DÃ¡il of this day: "That amendments Nos. 52 and 64, amendment No. 1 to amendment No. 155 and the amendments set down by the TÃ¡naiste and Minister for Justice, Equality and Law Reform not disposed of, with the exception of amendment No. 146, are hereby made to the Bill; in respect of each of the sections undisposed, that the section or, as appropriate, the section as amended, is hereby agreed to; Schedules 1 and 2 are hereby agreed to; and the Title is hereby agreed to."
An Ceann Comhairle: Yes, the question includes the amendments set down by the Tánaiste and Minister for Justice, Equality and Law Reform not disposed of, with the exception of amendment No. 146. In addition, in each of the sections undisposed, it is that the section, or as appropriate the section as amended, is hereby agreed to; Schedules 1 and 2 are hereby agreed to; and the Title is hereby agreed to.
The Dail Divided:
For the motion: 57 (Michael Ahern, Noel Ahern, Barry Andrews, Seán Ardagh, Martin Brady, Séamus Brennan, Joe Callanan, Pat Carey, John Carty, Donie Cassidy, Brian Cowen, John Cregan, John Curran, Noel Dempsey, Tony Dempsey, John Dennehy, Jimmy Devins, John Ellis, Michael Finneran, Dermot Fitzpatrick, Seán Fleming, Jim Glennon, Noel Grealish, Mary Harney, Seán Haughey, Máire Hoctor, Joe Jacob, Billy Kelleher, Tony Killeen, Séamus Kirk, Tom Kitt, Brian Lenihan Jnr, Conor Lenihan, Michael McDowell, John McGuinness, John Moloney, Michael Mulcahy, M J Nolan, Éamon Ó Cuív, Seán Ó Fearghaíl, Charlie O'Connor, John O'Donoghue, Fiona O'Malley, Tim O'Malley, Tom Parlon, Peter Power, Seán Power, Dick Roche, Mae Sexton, Brendan Smith, Michael Smith, Noel Treacy, Dan Wallace, Joe Walsh, Ollie Wilkinson, Michael Woods, G V Wright)
Against the motion: 41 (Tommy Broughan, Paul Connaughton, Jerry Cowley, Seymour Crawford, Seán Crowe, Ciarán Cuffe, Bernard Durkan, Damien English, Eamon Gilmore, John Gormley, Tony Gregory, Séamus Healy, Joe Higgins, Michael D Higgins, Phil Hogan, Brendan Howlin, Shane McEntee, Finian McGrath, Paul McGrath, Liz McManus, Olivia Mitchell, Arthur Morgan, Catherine Murphy, Gerard Murphy, Dan Neville, Caoimhghín Ó Caoláin, Aengus Ó Snodaigh, Jim O'Keeffe, Brian O'Shea, Jan O'Sullivan, Séamus Pattison, Ruairi Quinn, Pat Rabbitte, Eamon Ryan, Seán Ryan, Trevor Sargent, Joe Sherlock, Róisín Shortall, Emmet Stagg, David Stanton, Liam Twomey)
Tellers: Tá, Deputies Kitt and Kelleher; Níl, Deputies Neville and Stagg.
Question declared carried.