Dáil debates

Wednesday, 24 May 2023

Court Proceedings (Delays) Bill 2023: Second Stage


3:37 pm

Photo of James BrowneJames Browne (Wexford, Fianna Fail)
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I move "That the Bill be now read a Second Time".

I am pleased to introduce the Court Proceedings (Delays) Bill 2023. Article 6.1 of the European Convention on Human Rights provides for the right to a fair trial in a reasonable time period. This right already has constitutional and common law standing in Ireland, and this Bill will place it on a statutory footing and ensure an effective and accessible remedy exists if it is breached, as required by Article 13 of the convention. Deputies will be aware of the judgment of the European Court of Human Rights in McFarlane v. Ireland in 2010 which found that Ireland did not have an adequate remedy in place. There has been continuous dialogue with the Council of Europe since that judgment, and Deputies will also be aware that there have been a number of proposals considered to address it.

The Bill before the House is based on a general scheme published in 2018 but which has been subject to significant changes on foot of legal advice and ongoing stakeholder input. The key considerations during the development process were to provide an effective and accessible remedy that is also cost effective without adding an additional layer of formal litigation that is both costly and lengthy. The Bill creates a statutory right to the conclusion of proceedings within a reasonable time, which will give a statutory basis to both an individual’s constitutional right and his or her right contained in Article 6.1 of the European Convention. The Bill provides for the establishment of an independent assessment process and under the aegis of the Department of Justice to assess claims for breaches of the right to the conclusion of proceedings within a reasonable time. Where an assessment is rejected by an applicant, he or she will be issued with an authorisation to initiate proceedings in the Circuit Court.

The model provided for in the Bill is accessible and robust. It facilitates the fair and objective assessment of whether an individual’s right to the conclusion of proceedings within reasonable time has been breached and, where it has, whether compensation is appropriate. The model provides for a declaration and, where appropriate, compensation more quickly and less expensively than court litigation.

Recourse to the courts remains available under the model. However, both the considerations in regard to the claim and the awarding of compensation have been standardised, which, along with the potential of being penalised for costs where the court determines an amount of compensation and this is the same or less than the award determined by the assessor, will promote acceptance of assessments. This will streamline the way in which delay cases are currently dealt with and will reduce the administrative costs and legal fees associated with the current system.

Before turning to the main provisions of the Bill, I will highlight some of the ongoing work to improve court procedures and reduce court delays. The report of the judicial planning working group, published in February this year, made 54 recommendations relating to five key areas, including enhanced data collection and management and additional judicial resources. In line with these recommendations, the Minister, Deputy Harris, secured Government approval in February to increase the number of judges. This increase will facilitate greater access to justice, clear Covid-19 backlogs and support the Government’s priorities to establish a planning and environmental court and dedicated family courts.

Approval was secured to appoint an initial tranche of 24 new judges in 2023, with the appointment of a further 20 judges to follow the implementation of reforms and efficiencies. Legislation is required to facilitate these increases. Three additional judicial positions in the Circuit Court were provided for in the Assisted Decision-Making (Capacity) (Amendment) Act 2022. On foot of that, the Government made three nominations to the Circuit Court to fill these additional posts. Two of these judges were appointed on 11 April 2023 with the final appointment made by the President last week. The remaining positions will be provided for by way of the Courts Act 2023. This concluded its passage through the Houses last Wednesday and was signed into law by the President on Friday. Officials are in the process of establishing an implementation programme to oversee the delivery of all recommendations set out in the report of the judicial planning working group. Central to this process will be the development of a suite of indicators that will demonstrate the impact of the additional judicial appointments.

The significant increase in Judiciary numbers and other recommendations of the judicial planning working group will be complemented by the implementation of the review of the administration of civil justice, which includes 90 recommendations with a view to improving access to civil justice in the State, promoting early resolution of disputes, reducing the cost of litigation, creating a more responsive and proportionate system, and ensuring better outcomes for court users. This represents the most significant reform of civil law in the history of the State. I understand the first annual progress report will be provided to the Government later this year.

We are also seeing the positive impact of the introduction of preliminary trial hearings. Preliminary trial hearings streamline the processes in our courts, allowing certain issues to be addressed together at the start of the trial and making the entire process faster and more efficient. This reduces the impact on victims in sexual offences trials as they are less likely to be subjected to stressful delays. It also improves trials for white-collar crimes, organised crime and other complex offences, making it less likely that juries will be sent away during a trial. All of these actions are underpinned by the Courts Service modernisation programme for 2020 to 2030, which aims to transform fundamentally how the Courts Service delivers services through greater and more effective use of information technology. While this work is ongoing, we are already seeing improvements. Ultimately, our goal is that delays that might give rise to a remedy arise only in the most exceptional circumstances.

I now turn to the main provisions of the Bill itself. Part 1 contains standard provisions and sets out the key definitions relating to the provisions of the Bill, including a definition of a "party" in relation to both civil and criminal proceedings who may make an assessment application and a definition of the "relevant proceedings" under which an assessment application can be made.

Part 2 provides for the appointment of a chief court delays assessor, who will be a retired judge or a practising barrister or solicitor of not less than ten years' standing, and the appointment of as many court delays assessors as the Minister considers appropriate. Each court delays assessor will be a retired judge or a practising barrister or solicitor of not less than five years' standing. Part 2 also provides for the assignment of civil servants from the Department of Justice as designated officers to assist court delays assessors in the performance of their functions.

Part 3 establishes the statutory right to the conclusion of proceedings within a reasonable time. This right encompasses an individual’s rights under Article 6.1 of the European Convention of Human Rights, Article 38.1 of the Constitution and any common law right. Any party to proceedings, where those proceedings have not been concluded, or within six months of their conclusion, or the coming into operation of this Act, can make an application for a declaration that their right, established under section 11 of the Bill, to the conclusion of those proceedings within a reasonable time has been breached and, where appropriate, for the payment of compensation. Part 3 sets out the matters to which an assessor or the Circuit Court must have regard when determining whether the section 11 right of a person has been breached. These include the complexity and duration of the proceedings concerned, the duration of the delay and the conduct of all parties related to the proceedings and the principles and criteria set out by the jurisprudence of the European Court in relation to the delay.

Part 4 provides that the Minister can determine the form an assessment application will take. It provides that assessments will be carried out by court delays assessors appointed by the Minister for Justice who will have the authority to request from an applicant or a third party clarification or further information or documentation required to make an assessment.

It is envisaged that the majority of third-party information requests will issue to the Courts Service, which will have the required information on the proceedings that are the subject of the alleged delay.

Part 4 also provides that claims will be assessed within six months of receipt and, where an assessor determines there has been a breach of an applicant’s right under section 11, he or she must then determine whether compensation is appropriate and the amount, if any, payable. Compensation will be determined by reference to the jurisprudence of the European Court and will be in line with the concept of just satisfaction under Article 41 of the European Convention on Human Rights, ECHR. This is an important feature of the Bill and will serve to safeguard against excessive awards. It is also in line with the 2021 Supreme Court judgment in O’Callaghan, where damages were awarded for delay, in line with the principles and practices of the European Court. An assessor will also have regard to any injury, loss or damage suffered by an applicant as a direct result of the breach of his or her section 11 right.

The model is designed to be both accessible and informal. However, provision has been made in Part 4 for an assessor to award reasonable legal costs to an applicant with regard to costs incurred in the making of an assessment application. This can occur only following a declaration by an assessor that the applicant’s right has been breached. To deter the making of unmeritorious claims, no legal costs will be payable to unsuccessful applicants. Under the Bill, the Minister can prepare and issue guidelines regarding the levels of legal costs that may be awarded by an assessor. Where an assessment is rejected by a claimant or the Minister, Part 4 provides that the applicant will be issued with an authorisation to initiate proceedings in the Circuit Court.

Part 5 provides for the process of applying to the Circuit Court should the applicant or the Minister not accept the outcome of the assessment made by the assessor. The application to the Circuit Court must be made within three months of the date of the authorisation. After hearing the application, the Circuit Court will make a determination and issue a declaration as to whether there has been a breach. In making a determination and subsequent declaration, the Circuit Court will take account of the same criteria that were examined by the court delays assessor and, similar to the assessment process, any compensation will be calculated by reference to the jurisprudence of the European Court of Human Rights and have regard to any injury, loss or damage suffered by the applicant as a direct result of the breach of the applicant’s right.

Part 5 also provides for the awarding of costs by the Circuit Court to the applicant or respondents, which can include an applicant’s costs in respect of the assessment application where they were not awarded by the assessor. As I stated, it also provides the potential for an applicant to be penalised for costs or the awarding of no costs in circumstances where the court determines an amount of compensation and this is the same as or less than the award determined by the assessor. Part 5 also provides for an appeal to the High Court on a point of law only and that such an appeal shall be final.

Part 6 provides for a number of miscellaneous matters relevant to the operation of the Bill. These include that an assessment application may be made on behalf of a party to proceedings where such a party is under the age of 18 or is over the age of 18 but, due to illness or disability, lacks capacity to make an application. Part 6 also provides that once an assessment becomes binding or the Circuit Court has made a decision on an application, an applicant will be barred from any further proceedings concerning the delay. This prevents a potential abuse of the remedy, which would only compound court delays.

I note that as part of the implementation process, officials are examining whether a Committee Stage amendment is necessary to provide for a nominal application fee, which would further guard against unmeritorious claims. Further procedural enhancements may also be considered on Committee Stage.

I remind Deputies that the approach set out in the Bill, providing vindication of an individual’s constitutional and ECHR rights, ensures Ireland is in line with its international obligations. I look forward to hearing the views of Deputies on the Bill and am pleased to commend it to the House.

3:47 pm

Photo of Pa DalyPa Daly (Kerry, Sinn Fein)
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I compliment the Minister of State, Deputy Browne, his officials or whoever compiled the report I have before me. It is clear and raises several interesting questions in respect of how the Bill will be implemented. To begin at the end of the Bill, it provides for a number of miscellaneous matters, including that the assessment application may be made on behalf of a party to proceedings where such person is under the age of 18 or ill or has a disability. The Minister stated that an authorisation is made in that context. It is sort of based on the injuries board application form. However, the application to the Circuit Court must be made within three months of the date of the authorisation. That is a very brief period within which to take legal advice, having received the authorisation, and prepare proceedings for an application to the Circuit Court. Six months is allowed at the injuries board and the three-month period proposed under the Bill seems very short. What are the officials examining in that regard? Anyone who is making an application for this type of compensation will probably have legal aid. Are officials exploring an extension of the legal aid scheme? The Minister of State made the point that consideration is being given to providing for a nominal application fee to guard against unmeritorious claims. It is a new scheme and it would be very difficult for a person who may be entitled to compensation to proceed on what will be a new and complicated area of law without legal advice. I am interested to see what will come forward at a later stage with regard to how that will be implemented. Everybody is entitled to a fair trial. If people are to be punished if the assessment is equal to or less than what is assessed by one of these new assessors, that might be a very unfair decision.

As the Minister of State laid out, the Bill provides for compensation where Article 6 has been breached and the State is obliged to implement it. Article 6 states, "In the determination of ... civil rights and obligations or of any criminal charge ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law." The Minister of State recognised that under the ECHR there is a right to a fair trial within a reasonable time and an effective and accessible remedy as required by Article 13 of the convention. As the old maxim goes, justice delayed is justice denied. With all the delays in the courts at the moment, people are not receiving trials within a reasonable timeframe. I will deal with that issue later. Facing a trial and awaiting the outcome thereof can be a time of great anxiety, not just for the person who is charged but also, perhaps even more so, for family members or children of the accused person. They experience uncertainty in respect of what they can do with their life, and that can cause serious anxiety. Obviously, the victim needs to be dealt with in a fair and expedited manner, but family members also suffer, sometimes more so than anybody else. Although the Bill arises from criminal prosecutions, both civil and criminal justice systems seem to be under threat at present. We believe in a justice system that is fit for propose and people need to have confidence they will receive justice in the courts without any extraordinary delay.

I understand that some people on the call-over list in the Dublin Circuit Court in January and February of this year have been given trial dates of 2025. In my own time in the courts, this would have been an extraordinarily long period to wait. The picture outside Dublin is not much better. Some 66,000 court summonses are backlogged at present following delays caused by the pandemic, a lack of space for hearings and a shortage of judges. Dates for one-day hearings on the judicial review list, including judicial reviews, are now as late as February 2024. I accept that this is on the civil proceedings side of things. As was seen during the pandemic, some imagination needs to be utilised in the conduct of these trials.

The challenges of people living in isolated and rural areas need to be recognised. There are 245 cases on the list for this Thursday in County Kerry. Three weeks have been set aside for Circuit Court sittings in May and a further three have set aside for July. That is not going to make a huge impact on the list. If a person is charged today in County Kerry, it is unlikely that he or she will receive a date for hearing until at least 2025, even though there are cases on that list going back to 2018 and 2019.

In Limerick Circuit Criminal Court, there are more than 200 cases on the indictable list, which are criminal cases. Having looked at the call-over list, numbers would indicate that those cases were returned to the District Court, again back as far as 2019. Victims of crime, clearly, are waiting years for cases to be heard and for justice to be heard. Some accused persons also have to spend years awaiting trial, often under onerous bail conditions. Where accused persons are in custody, they are given priority but they must still spend months or sometimes years awaiting trial. We all know how overcrowded the prisons are.

In the Civil Circuit Court cases in Limerick, there is a backlog of about 1,000 cases. There is an exceptional delay also in some parts of the country in getting Circuit Family Court matters on for hearing. Even when a case is ready to be heard one could be left waiting a year to have the case dealt with. There is also a side issue in the drain of lawyers from family law cases because of various issues, including the rates of payment under the civil legal aid scheme. These cases affect mostly women and deal with domestic violence-type cases, and all of the resultant cases that arise.

The underutilisation of the extensive new criminal court facility in Mulgrave Street in Limerick is unacceptable. Most days, at least half of the six courtrooms in the building are left idle. Yesterday and today, I understand that only four of the six courtrooms were in use. Both days have been particularly busy day. Complaints were made last year about the fact that the Central Criminal Court was not sitting enough in Limerick. This brought attention to the issue and the Central Criminal Court began sitting there, and did so for a number of months. I understand, however, that the status quo will return. It was recently stated that there would be no more sittings of the Central Criminal Court scheduled for Limerick for the remainder of the year. This means that the most serious of offences, victims, accused persons, gardaí, other witnesses and prison officers will have to travel to other locations such as Dublin for what are often lengthy trials. This will take gardaí out of their stations and up to Dublin for trials when it is necessary for them to be on the front line in their own areas. Trials of this nature should be held in the Munster region. There are ample facilities and the Judiciary has indicated a willingness and a desire to sit there. What are the Minister of State's views on the establishment of a permanent Central Criminal Court that revolves between Cork and Limerick, taking in trials continually from all the surrounding counties?

Will the Minister of State also provide some sort of a timeline for the proposed review of the Circuit Court and District Court areas, which was recommended by the working group? It is my view, which I am sure the Minister of State will share, that access to justice is an important concern and cutbacks must not be the determining factor. The Circuit and District court system can be burdensome and confusing so I welcome the move to modernise it. I am keen that spatial inequalities, especially, are corrected. The availability of quality judges is a concern also. I commend the Government for acting on the report of the working group on judicial resources, but unfortunately there is a risk that the report by the European Commission, which said Ireland is the worst country in Europe for judicial resourcing, has not been acted upon fully.

3:57 pm

Photo of Thomas GouldThomas Gould (Cork North Central, Sinn Fein)
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There are major issues with our court system at the moment. Delays have had a massive impact on everyone involved. Is it any surprise when this State has an average of 3.27 judges per 100,000 people compared with an EU average of 17.6 judges per 100,000 people.

I want to explicitly discuss delays beyond the District court and the Circuit Court. The family courts deal with safety orders for victims of domestic violence. They are often sought under extremely difficult circumstances and when situations are at crisis point. Victims of domestic abuse, including children in the home witnessing this, need an urgent response. Yet, data released by the Courts Service from the third quarter of 2022 show that in some areas people are left waiting on average four months for a hearing on these.

I am proud to be a Deputy who works with victims of domestic abuse, but there is very little I can do except point people in the right direction, give them moral support and a listening ear, and give them the contact details of those who are there to help. It is the courts that people need, however. The courts provide protection and can give gardaí the orders they need to ensure there is no more harm done to these victims and their children. This needs to happen swiftly. It is very important that we see proactive change so these cases move forward and are prioritised, and to ensure no one is left waiting four months for a hearing.

I also want to touch on the coroner's court. I was recently involved in supporting a constituent named Evan Gearns through this very difficult process. Evan's brother, Andrew, passed away in Cork Prison. The long wait for the Coroner's report to hear Andrew's case was extremely difficult for the family but they persevered. Thanks to their perseverance the inquest was heard in February this year. The results of this inquest were four very specific recommendations. I have submitted parliamentary questions and written to the Minister regarding these recommendations. I have sought a timeline for their implementation and a commitment that these recommendations will be implemented. I have also requested that the Minister meet with Evan, who has done a huge amount of work on this. I reiterate that call. We are still waiting on a timeline and a commitment. If the Minister was to meet Evan he would realise the importance of what he has to say.

The Bill is a step forward, but it is only one step. We need to see a concerted effort and particularly an effort to create an easier environment for victims in a court system. The reliance on charities and NGOs to accompany victims to court must end. We must reform how we view the courts' system. It is worrying that today's reforms were first flagged over one decade ago. This highlights just how slow the reform is of these systems. It is time to have a clear look at it now. We need more judges, we need more support for victims, and we need easier access to justice. As my colleague said earlier, justice delayed is justice denied.

Photo of Donnchadh Ó LaoghaireDonnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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Baineann an Bille seo le rud a bhfuil tionchar aige ar go leor gnéithe den saol agus de ghnó daoine, ó thaobh ábhair teaghlaigh, ábhair coiriúla, ábhair tráchtála, agus fiú amháin ábhair tithíochta agus ábhair bóithre ó thaobh pleanála de. Is é tionchar na moille air seo ná go gcuireann sé stop le cinntí atá le déanamh agus go gcuireann sé stop le go leor gnéithe de shaol na ndaoine.

We will probably all come back to the same cliché that justice delayed is justice denied. In many ways, it is more than justice denied. Very often, this chokes up the system in so many areas of life, which I will return to, whether these are housing, education, planning, the Coroner's Court or the family court. It chokes up further consequent decisions for families, the State, local authorities and any kind of organisation or individual, including very vulnerable individuals. They are all delayed and pulled up by the delays in our courts.

On the backlogs we are facing, it occurs to me that if the judicial system were explained to a child, it all seems very logical. You could say that where there are two individuals who have a dispute they cannot resolve, they go to the courts, the courts decide and that is where it goes, or if somebody is facing a crime, it goes before the courts and the courts decide. The problem, which is not obvious from that description, is that people could be waiting a year for a very brief hearing. They could be waiting and, at any stage over the course of the next year, they might get a hearing followed by an adjournment. It goes on and on like that with, very often, no obvious end in sight. That has major implications for access to justice because people, particularly those on low incomes or vulnerable people, when they decide whether they will take the very brave, courageous and frightening step of taking the State, a local authority, a company or anyone to court, the consequences are weighty, not only financially. There is not only a potential risk to their home, but their life may be on hold over the course of the next few years.

I spoke to a gentleman yesterday who took a court case relating to an education matter. I am sure there are many worse examples, but it demonstrates the kind of ways this impinges on people's lives. He usually brings his mother on holidays at a particular time of year but he could not do so this year because he was aware - not that anything was scheduled - that at any stage he could be called for a court hearing and there could be an adjournment. It impinges in much more significant and weighty ways than that. That is simply the example I heard yesterday.

The causes of this situation are quite obvious and plain. We clearly do not have enough judges compared with our European equivalents. We have 3.27 judges per 100,000 people compared with a European average of 17.6. The number of judges is more than four times greater in other European jurisdictions. This Bill is about compensation but we also need to address the issue of delays. This Bill specifically provides for the compensation of defendants, victims and witnesses, but individuals such as gardaí, courts staff, judges and lawyers are also impacted by long delays. Too many victims and ordinary plaintiffs are forced to wait for long periods as courts struggle to keep on top of caseloads. As I mentioned, this clogs up so many elements. Very few parts of our courts or judicial system are unaffected by this.

Like Deputy Gould, I worked with the family of Evan Gearns who waited more than two years for a coroner's hearing. I have been also dealing with families who have been waiting for a very long time in respect of the family courts. There is currently a lot of discussion regarding international protection. It is not right, either for the applicant or the international protection system, that the delays both in processing and in the court hearings that follow are so lengthy. It is not fair on anyone involved in the system. It is not right that any decisions that have to be made on whether there are judicial reviews of road applications, housing or anything to do with infrastructure are tied up. It is not right in respect of people who are simply trying to vindicate their educational rights, whether that concerns an assessment of need, an interpreter or some piece of equipment. These are all the kind of things that families and very ordinary people have to go to the courts to fight for, yet their lives could be tied up for two to three years without any certainty as to the outcome. This is a very fundamental issue that feeds into so many aspects of life and needs to be addressed.

The issue of compensation is certainly important for those whose justice is delayed and is, therefore, denied. We also need to look at how we resolve this for all those categories of people who are affected.

4:07 pm

Photo of Patrick CostelloPatrick Costello (Dublin South Central, Green Party)
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Like previous speakers, I underline that access to justice is a fundamental cornerstone of our democracy, as it is for any democracy. Delays undermine that. I have stood in the Chamber quite a bit in recent weeks to talk about access to justice, how we need to look at the failings in criminal and civil legal aid, and the failings in providing an adequate number of judges and registrars, in addition to other resources, all of which are fundamental to access to justice.

I will, however, focus on a slightly different matter. There has been some talk about the Executive giving up its power to somewhat unaccountable quangos and how that is undermining our democracy. I fully believe a similar parallel process is happening within our courts system, with the relentless march of the administrate state. The Chief Justice, when he spoke at the Law Reform Commission's annual conference in November 2017 said:

[In Ireland] Every time there is a new form of right or obligation created, we create a new body. Sometimes there is a regulatory body, and a regulatory appeal body, and sometimes the legislation says you can appeal from that body to the courts on a point of law, sometimes to the Circuit Court and sometimes to the High Court. Sometimes you may even appeal on the merits to the Circuit Court. ... behind that there is always the right to seek judicial review and there ... [are acres] of case law about whether or not the internal ... systems in the regulatory bodies ... [were] exhausted before seeking judicial review. ... often a party argues that if they had ... [sought that exhaustion], it would have been too late and ... [it is a] collateral attack on the original decision. I think we have gotten ourselves into [a] significant ... [mess] in this area.

I hold some concern that we are continuing to do with this Bill exactly what the Chief Justice spoke against. I find it interesting that I first heard the above quote from then law reform commissioner Mr. Justice Maurice Collins who is now, of course, on the Supreme Court, at a Law Reform Commission seminar on the Zalewski case, about which the Chief Justice said, "The standard of justice administered under Article 37 cannot be lower or less demanding than the justice administered in courts under Article 34". Again, I am quite concerned that we have now created a new right, and a new body to assess that right, which is essentially an Article 37 body. We do not seem to be providing, in the legislation, for justice to be administered to the same standard, and in no less demanding a way, than the justice administered in the courts.

It begs the question, if the courts already exist, surely they are the best places to hear these cases? While I appreciate the kernel of this is that we failed to provide an effective remedy previously, ensuring the courts are accessible is the effective remedy. The courts are already there. They are our effective remedy as long as we provide sufficient judges, timely hearings, translators to ensure the courts are accessible, and legal aid to ensure that citizens can demand their constitutional due. It seems to me that some of the Bill's provisions are unnecessary and what we have before us fails to meet the standards set out in the Zalewski case.

More than that, I will point out some other particular concerns regarding the Bill. Subsection 10(7) references avoiding divergence in assessors, which highlights the importance of precedent. This speaks to the challenges of the Zalewski decision and ensuring that the justice administered is of a reasonable standard. It indicates that perhaps we will not achieve that with this legislation.

Section 19 provides a differing onus and acceptance between the State and citizen as regards an assessment. In cases of a failure to respond, the Minister is deemed to have accepted an assessment where the citizen is deemed not to have accepted it, which is deeply unfair. It is a splitting and a setting up of the State in opposition to and against the citizen, when the citizen and the State should be one and on the same side.

When we talk about the State being a model litigant, such elements do not underpin that idea. Section 25 goes some way towards inoculating against that, but my concerns still stand.

Sections 20 and 21 provide for a somewhat stilted appeals system and a system for making decisions on costs. We already have decent structures for appeal and for deciding costs. We simply need to make them more accessible. We should do so not by creating a new body or new right; we should do it by ensuring that the courts overall are ultimately accessible. Much of this comes from the relentless march of the administrative state. It gives me pause and makes me reflect on comments made by some recently retired senior civil servants who have been derogatory about individual barristers and other lawyers, the judicial review process, access to the courts in general and our Judiciary, which has served us well. I hope those are individual views and not reflective of the Department of Justice as a whole. In general, the staff of the Department like our Judiciary. The ultimate remedy is to ensure that the courts are accessible and effective. That is where we should be focusing our time and resources. The Minister of State opened by talking about how we are doing that in some cases but that we need to double down on it by providing effective legal aid for criminal and civil cases, making our courts accessible by ensuring that translators are available and buildings are accessible and ensuring we have a sufficient number of judges.

4:17 pm

Photo of Ruairi Ó MurchúRuairi Ó Murchú (Louth, Sinn Fein)
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This is another situation where we are largely supportive of the legislation. We will all make some of the same comments such as justice delayed is justice denied. We must ensure that we have a system that is not only fit for purpose but that also responds in the swiftest way possible. If there is a need for leverage for the particular mechanisms, such as the compensation provided for in the Bill, we must ensure that we have a system that works in order that it will not be necessary to pay compensation. We have had many discussions in the past about the fact that we are dealing with clogged systems in both the District Court and the Circuit Court.

I remember doing jury duty in respect of an assault charge case that was four years in the making. I do not think any of us would consider that to be particularly swift for those involved, especially the victims. We all know we must lift our game in the context of interaction with victims across the board. We know the wild issues relating to the District Court and the Circuit Court. We know the issues with the family courts. Many have spoken and will speak again about domestic violence and the need to streamline the system for obtaining safety orders, protection orders and barring orders. That is absolutely necessary work. People have spoken about issues with the coroner's court. I remember having to deal with a specific issue where a loved one, the son of a family, had died away from home. There were particular issues and the interaction between the Coroner, An Garda Síochána, the family and Forensic Science Ireland was far from perfect. The case required genetic testing. I and my office interceded alongside some of the local gardaí to speed matters up. Work needs to be done in that regard.

We all know we do not have a sufficient number of judges to do the requisite business. I accept that when we talk about crime we know the issue we have with drug crime. We hope something will come from the citizens' assembly. I have just taken a call about a drug dealing case in a reasonably middle class area in Dundalk where obvious dealing is happening on the streets. We all know the issues that exist in disadvantaged areas. I am constantly dealing with drug debt intimidation issues. We definitely need a holistic solution that will deal with everything from poverty issues, early intervention and family interventions. We need a police force and a judicial system that are fit for purpose.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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In the past year, the Minister of State has brought forward several items of legislation, much of it to do with issues where we have a gun to our heads, such as, for example, where fines are likely to be imposed or where we have not done things in a timely way. To the Minister of State's credit, he has been trying to clear the backlog. This also falls into that category in that there is outside pressure to deal with a matter we should be dealing with ourselves, and it goes back a long time.

This should be an initiative of last resort. It is about the failures of justice in our system. If there is a raft of claims, it will be viewed as a continuing failure of the system. Is it getting to the core of the problem? Real success in this would be if we did not have a raft of claims. That is how this should be judged. Is such a system used in other jurisdictions? Has any modelling been done on how such a system has worked in other jurisdictions? I would like to see the evidence. What budget will compensation claims be paid from? Consequences change behaviour, but if it does not have an impact in the right place, the remedy will be in theory but not in practice and the public purse will become a bottomless pit. I have concerns about there being a consequence in the place the delay is happening. If a delay is due to such issues as a lack of resourcing then it is correct that it should fall on the Department of Justice. What assessment has been done of the delays in the justice system and where are they occurring? If such an assessment has been done, is there a plan to remedy the shortcomings? The Minister of State probably has a wallchart relating to some of the legislation he previously brought forward to clear the backlog. Is there also a wallchart to show where the issues are arising?

Our population has grown from 3.6 million to well over 5 million in the past 25 years, but our systems and services have not grown at the same pace. Many of the services are stretched and our society has also changed considerably in that time. The Court Proceedings (Delays) Bill 2023 proposes to increase the number of sitting judges in the Court of Appeal, the High Court, the Circuit Court and the District Court. This did not happen because we did an assessment of how things were going. It followed criticism, including from outside sources, in the context of why this Bill is being brought forward. As recently as March, the Office of the Director of Public Prosecutions warned that its current level of funding is not sufficient for it to effectively deliver a modern prosecution service. As a result of the lack of funding, it says there is a risk to its reputation and a significant risk that criminal cases may not be prosecuted effectively. That is what I mean when I say we must look for the root cause of the problem and why there might be delays.

The helpful digest on this Bill has the following striking quote:

On the concept of delay in court proceedings, the Supreme Court in the recent case O’Callaghan v Ireland concluded that: “Delay can deny even a just judgment of its value. There is a societal interest involved. If people believe that courts cannot vindicate their rights, then they will come to distrust the law itself, and the system within which the rule of law operates [...] What is in issue is not simply an aspirational precept: it is a fundamental principle necessary for the upholding of the letter and the spirit of the Constitution.”

It has been known that we have had a problem for a long time because we get routine updates on how long it is taking for particular court cases to happen. I will quote the Bill digest again as follows:

It is well-established in Irish law that a person whose constitutional rights have been infringed can, in principle, sue for breach of those rights and obtain damages, including damages for breach of the constitutional right to a speedy trial. However [and there is usually a "however" in a system that does not function as it should], in practice such an award has rarely been granted in the context of undue delay (see the comments of Judge O’Leary in Keaney v Ireland discussed below, where the ECHR noted that the “scope of a damages action, the circumstances in which a complainant is likely to recover damages following delay and questions of quantum all remain unclearand in need of development through practice and case-law.”)

That mentions case law but we have not chosen the route of going through the courts; we have chosen a different model, which I will come to shortly.

Those who face a criminal trial in this country are presumed innocent until they are found guilty. In the case of murder and rape, two of the most serious offences, it is taking more than two years to bring cases to court and that might not even be to prosecute the case; it might just be to decide on the timelines for it. Increasing the number of judges by 24 this year and by a further 20 next year will hopefully reduce some of those delays. As a young adult, I recall a situation of someone being murdered and there was consternation and shock about it and there was talk about it for about a week. Now you would struggle, even within the last month, to know how many people have been murdered. There is a big difference and we need to get to a situation where we address why our society is becoming so violent because that is part of this process.

I could say the same about rape; there is a huge under-reporting of this serious offence. I mention the Central Statistics Office's sexual violence survey and some of its key findings include that four times more women than men reported experiencing non-consensual sexual intercourse over their lifetimes. It is even disproportionate in who reports, therefore. The lack of statistics available to the courts is a real problem as well, and this is part of the problem with how our system is working. We have two significant gaps in information that demonstrate a prevalence of sexual violence versus the under-reporting.

I will quote from an article in the Irish Examineras follows:

Dr Siobhán O’Higgins, of University of Galway’s School of Psychology, said victims may not want to go through the reporting process and be retraumatised.

People may be hesitant to report incidents due to lack of knowledge of reporting structures, handling the incident informally or not thinking they will be believed, she said...

People are very wary of engaging in legal services and things like that and it’s fearful. Why would you want to do that if you’re getting the support to deal with the trauma you’re suffering and working through that yourself, which is a huge process?”

Imagine reporting that and then ending up waiting two years for a case to even come up for a date. You cannot get on with your life if that is the case. The length of time these cases are taking is problematic, and these are some of the most serious cases.

An action plan was provided following the efforts of the European Court of Human Rights and this Bill is part of that action plan. However, it most definitely does not substitute for a properly functioning justice system. We know the McFarlane v.Ireland judgment in 2010 related to a kidnapping offence in 1983. The origin of the delay in this case was due to the loss of fingerprint evidence. Mr. McFarlane was acquitted of the offences in 2006 and he argued that the time delay violated the reasonable time requirement. The European Court of Human Rights found that those were violations of the European Convention on Human Rights under Article 13, the right to an effective remedy, and Article 6, the right to a fair trial within a reasonable time. Mr. McFarlane was awarded damages and costs totalling €15,500.

In 2020, the Committee of Ministers called on Ireland to provide an updated plan setting out the proposed remedies and relevant timeframes for their implementation. In September 2022 the committee noted that it remains a matter of "profound concern" that the remedy had not yet been established. The McFarlane case has been pending before the committee for 12 years and almost 19 years have passed since this problem was first identified by the court. Previous legislative initiatives have failed and the authorities must act diligently and continue to give the necessary priority to the legislative process to ensure that an effective remedy is established and accessible without any further delay. It is another example of us not being good Europeans and it is an example of having to be told from the outside that there is a significant failure.

At this time the Committee of Ministers invited Ireland to again provide updated information on the issue and in March 2023 Ireland submitted a revised action plan outlining the progress that had been made thus far and the proposed remedies, with particular emphasis placed on the provisions of this Bill. My concern is that this Bill is part of a tick-box exercise, rather than a detailed consideration of where the system is failing and how that should be addressed, including resourcing where shortcomings are found. We have made an industry out of causing problems, not just in the criminal justice area but as a country, and then resolving those problems without having a plan of action to deal with structural and resourcing weaknesses to avoid causing a crisis in the first place. We pay for it anyway. In some cases we pay a financial cost and a reputational cost and the intangible cost that goes with undermining our justice system, as in this case, is yet another price that is paid. Then there are the individual prices that are paid by people who are not being prosecuted in a timely way and by people who are victims of crime.

I am also not sure how this Bill deals with the victims of crime, who are equally failed by the system. We are told that the action plan which was provided to the Committee of Ministers was detailed and that this legislation was part of that plan. We cannot all be members of every Oireachtas committee and I do not know how much of that information has been shared with the justice committee or if that detailed information is available but I would find it useful to see what the shortcomings are and what remedies the Government has for dealing with some of those shortcomings. We know it included increasing the number of judges but what else did it include? What research was done into the causes of the delays? Are there shortcomings in how we capture information? I mention one of the things I quoted earlier about rape. I asked a parliamentary question and I got a response that:

At this time, the system in use by the Courts Service in the Circuit Courts [and Central Criminal Court where these cases would be heard] is ("ICMS") a Lotus Notes database and cannot produce reports for specific offences.

That tells me something about how we are capturing information. If we do not capture information in a way that is usable, then we are not going to be able to put the appropriate resources where those resources are required. I have serious concerns about inadequacy, even in terms of how we are capturing information. What else did this detailed plan provide? The Minister of State might address what research was done into the cause of delays and how extensive that research was.

We know that in the McFarlane case, the origin of the problem was the loss of fingerprint evidence. Is the Minister of State satisfied about the arrangements that are now in place to secure fingerprint and DNA evidence? I know there have been some improvements, but are we satisfied that that is sufficient? Was there a review done following the McFarlane case about the shortcomings? What do we do in situations when there are shortcomings?

As Deputies, we get constituents coming to us about all sorts of things. I want to use two cases as examples, both of which relate to traffic offences - one in Dublin and one in Kildare. The first one relates to an individual who was happy to accept the offence was committed and to accept the sanction of the court. This individual had the benefit of being granted legal aid, but turned up to court on six or seven different occasions without the case being heard. It was rescheduled for another date. The second case involved two parties, both of whom were willing to settle, but the Office of the Director of Public Prosecutions, DPP, was not ready and there was a delay in the Garda giving the DPP some information. One of the individuals had taken eight days' annual leave, so there was a kind of a double sanction, as it were. We have to ask if that is a good use of the court's time. Both individuals I talked to are stressed about the issue. It seems to me that it shows a failing in how the court's time is managed. That may well be to do with inadequate court staffing levels, but it is also wasteful of the time of those involved, for example, in the legal aid system, which we know is under pressure. All of that needs to be part of this.

This Bill relates to civil as well as criminal trials. Indeed, if we look as civil issues such as breaches of planning law, which are very often serious breaches, local authorities may be considering if they can afford the staff time involved in taking cases, even after they have issued enforcement proceedings. I believe many breaches go unpunished for this reason, and it completely undermines the statutory role of our planning authorities. The more non-compliant breaches go unpunished, the more our system of planning is undermined. The courts themselves have a reduced tolerance for plaintiffs who delay progressing their claims. Pentony and Edward Murray considered this in an article in 2022, stating: "There is a recent trend in some types of litigation (including civil and commercial litigation) in which the courts are becoming less tolerant of plaintiffs who fail and/or delay in progressing their claims. Multiple cases from 2021 indicate that, if a plaintiff engages in delay and/or does not progress their claim for two years or more, the courts are amenable to dismissing the proceedings on grounds of such delay." The Supreme Court established a three-step test in 1996. First, the court should consider whether the delay in question is inordinate. If the delay is inordinate, then the court should consider whether the inordinate delay is inexcusable. If the delay is both inordinate and inexcusable, the court should then consider whether the balance of justice favours the dismissal of the proceedings. I refer to the article because we can see the courts themselves have concerns with delays. We can see that a clear test has been established for civil and commercial cases.

This Bill proposes an independent assessor model for deciding claims relating to excessive delays in court proceedings, as opposed to the court making that decision. Deputy Costello made this point. This was decided following a regulatory impact analysis that favoured the assessor model. Will the Minister of State outline how such a model will work in practice? Will a permanent office be set up? Has the regulatory impact assessment been published? Is this something that we are going to be outsourcing? Is it going to be a permanent office? It is very difficult to know. I would like to be satisfied about why the decision was made.

It seems to me that we are often obliged to pay for failure because we have not planned, or we have not resourced systems to run smoothly. Just this week, we heard the Garda Commissioner say that he had sufficient resources. What else would he say? On the other side, we heard from the representative from the Association of Garda Sergeants and Inspectors about the inadequacy of training and resources, particularly where there is a conflict on both sides of a protest, which is closer to what the man and woman in the street believe to be the case. It is really important that we look at this in its totality, and not see this Bill as the solution on its own. There is a myriad of other things that need to be done. I would like to hear about the range and detail of the analysis.

4:37 pm

Photo of Cathal CroweCathal Crowe (Clare, Fianna Fail)
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I thank the Minister of State for bringing the Bill before the Dáil. It is very important legislation which brings a legal remedy to the McFarlane v. Ireland case before the European Court of Human Rights, and puts us back in line, because we were in breach of Article 6 of the European Convention of Human Rights. Essentially, the legislation brings in a compensatory factor for people who have had their right to a fair hearing delayed beyond an acceptable time period both in criminal cases and in other matters. It is a positive development.

I note the Bill also provides for the appointment of a chief courts delay assessor, who will assess applications where delays have been deemed to have happened. It is important that while this legislation progresses, there is a grasping of the nettle in terms of other issues relating to the courts. Shortly, I will be a witness in a criminal case, and I look forward to playing my role in that. I have no more to say on the matter. It will play out in its own time. Every citizen of this land should play his or her part when called to. I will be a witness in a case very soon, and I hope that case will be heard as quickly as possible.

I want to raise a few points. It galls a lot of people when they see, repeatedly, on television that certain individuals have been through the courts system and the reporter will say that this person has a few dozen convictions already and they are being represented in the Central Criminal Court with legal aid. I understand that in some jurisdictions there is a cap on free legal aid. In Italy and Greece it does not exist at all. In some countries like the UK, there is a very generous system. I know that some will come out time and again and say that everyone has the right to be assumed to be innocent until proven guilty. Of course, that is a fact that is enshrined in Irish law. However, it makes a bit of mockery not of the courts system, but of the taxpayer to see the same boyos going in time and again and having a very hefty costing defence put up by the Irish taxpayer. After so many occasions, people should have to stand on their own two feet and cobble together their own defence in whatever fashion they can. I know the Minister of State has all the legal training. I am a teacher by profession. I am just telling the Minister of State how people feel. I have been in courts a number of times over the years, thankfully on the right side of the law. It galls people when they see the lads coming in, getting their representation and going out again. They do not have much mass or respect for the courts system. That, too, needs to be looked at in time.

The resourcing of the Office of the Director of Public Prosecutions needs to be looked at. It was flagged in late March as being a reason many court cases are not progressing sufficiently. I have friends in An Garda Síochána, as I am sure most Members here do. They find it extremely frustrating that they invest a huge amount of time investigating a crime, capturing the culprit and bringing the case through all the processes they have to complete, including bringing it to the DPP, only to see the culprit being given a very light rap on the knuckles or something afterwards. It can be quite demoralising to an investigating garda, and very time consuming. Delays in courts do not help in that regard.

I have a note here, which is a wry comment. It is not so much for the Minister of State, but maybe there should be something like this Bill for An Bord Pleanála. Perhaps it would get things moving at that end if there was some kind of a penalty or a clawback provided for in the case of inordinate delays.

I wish to highlight that there has been a perception for some time that the law in Ireland is a little bit soft. It is not the Minister of State's fault, and it is certainly not the fault of the Garda. I sometimes hear that from gardaí. There are two pieces of legislation which at times make it quite difficult for members of the Garda to carry out their functions and duties, the Children Act 2001 and the Criminal Justice Act 2006. They set out how an adolescent, a teenager or a minor should be treated in the legal system.

It is very important that we have child protection laws. When I was a teacher, we had a litany of legislation and circulars from the Department on the pinboard behind our desk that gave full protection to children, and rightly so. However, gardaí find it very difficult when they are policing at weekends and there is antisocial behaviour. Most of the time, the very most they can ask is for people to move on, which is a legal direction. If a group of people is causing mayhem - I will not even get into examples because we can all give them - and they move to the next street corner, they will have complied with that order. It just seems rather weak. It seems that some of the laws I quoted trump and exceed other ones and, therefore, gardaí feel pretty powerless at times when they are out trying to deal with these incidents.

The last point I wish to make, which is important to this debate, is that prison teachers appeared before the Joint Committee on Education, Further and Higher Education, Research, Innovation and Science quite recently and cited the fact that there are fabulous programmes going on in prisons, and rightly so. It should not be about tough times; there should be an educational aspect to it. However, they have no metric of how many people with learning difficulties are in the Irish prison system at the moment, which there is in other jurisdictions. It is as high as 60% or 550,000 people in the US penal system. We do not have such measurement at all. It bothers me, particularly as an educator where we are very focused on diagnostics. We very much want to know what challenges a child or adolescent faces and we want to look at therapeutic interventions. When someone is an adult, however, we do not really follow the diagnostic path. When someone is in the Prison Service, particularly if a prisoner is availing of in-prison educational facilities, there should be some form of child and adolescent mental health services, CAMHS, although we cannot call it CAMHS because it is dealing with adults. However, there should be some form of diagnostics so that when someone is availing of education, even if they have entered into adulthood at that point, we can look at their case and say that person endured the following in his or her lifetime. It is very important to know the someone's psychology to see how we can go about assisting them with therapeutic interventions.

The backbone of the Bill is very solid. I support it fully as do those in government. It brings us back in line with the European Court of Human Rights and the breach in the McFarlane case.

4:47 pm

Photo of Éamon Ó CuívÉamon Ó Cuív (Galway West, Fianna Fail)
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Fáiltím go mór roimh an mBille seo agus tá súil agam go dtiocfaidh sé trí Thithe an Oireachtais gan mhoill. It would be very appropriate if there was not an inordinate delay in bringing this Bill through, because it is all about delay. In recent years, delay seems to be increasingly endemic in every system. Even in the remedies to deal with delay, there can be delays.

I raised a number of cases with the Ombudsman recently and this takes much longer than it did initially when the Office of the Ombudsman was set up. A person can go to the Ombudsman and say he or she wants to complain about a delay, but that in itself takes time. We need to deal with delay both in the administrative system and the judicial or legal system. I welcome the Bill, but I hope it will have the results it is intended to have.

The first thing in dealing with this issue of delays is to look at why it is happening and then deal with it. In reality, people should not have to go to an assessor and effectively take action against the State for delay. Unfortunately, in too many cases, one wishes one could do it every day of the week with so many parts of the State, including, if I might say so, the Department of Justice, which I find can be very slow in dealing with issues.

When it comes to the courts, however, it becomes even more important. It could be a family law case where people might need urgent action but they do not get that action because of delays in the court. They cannot get into the court or there are other delays. At times we see how it can take years to resolve family law cases.

We then have civil cases. Issues such as planning readily come to mind where the system seems to be open to being abused by people taking court cases knowing there is a big queue and that there will be a delay in the case being heard. They know that if they oppose something, it is a way of stalling the process.

We then have criminal cases. There is a very important element in all these cases, particularly in respect of family law cases, where somebody might be seeking protection or seeking to move forward with his or her life. Similarly, with criminal cases, people may spend time on remand or they may face strict bail terms, which interrupts a person's life. This is important. I do not care what a person might get because only a court can convict someone. It is very important that we never take that right away.

A garda told me one night at a community meeting about criminal cases that he would rather have three guilty people go free than for one innocent person to be wrongly convicted, which I though was very wise. We have seen here and in other jurisdictions the effect of presuming guilt before having gone through all the processes in the court.

I understand that in a previous Bill, on which I did not get an opportunity to speak, we provided extra judges, but that was done on a phased basis in order that an assessment would be carried out on the effect. This needs to be very robust. I have seen time and again over many years how we add more staff and resources to the system but within a year or two, the delays are as long as ever. We must make sure that when we put in the resources and mechanisms, we get delivery. It is important that the number of people who have to go to the assessor will be the exception rather than the rule. Maybe a few sharp slaps on the wrist for the system would wake it up to the fact that it is not acceptable anymore and that this should not be a common process. Not everybody should have to go to the assessor because it costs the State a lot of money in both administration and paying out of compensation. Everyone just accepts that it is not their money they are paying out.

If we look at another jurisdiction on this island, we have an even more acute problem, which I have highlighted time and again. I am very surprised it has not been highlighted more by other politicians. In criminal cases, it can take up to eight years or more to get a trial. Three years on remand is not out of the question. Even if a person is let out on bail, of which there is no certainty, the bail conditions are incredibly punitive. I do not have time to list them all. One of the problems is that they are so punitive, they really restrict a person's life. I know of one case where a person was only allowed ten numbers in their mobile telephone and those had to be approved by the court, etc. There is reporting day and night, tagging and so on, year after year. That is not freedom. To my knowledge, there is no statutory way of ensuring that this is taken into account if there is a guilty verdict in the end. That is very wrong. It is happening on our island.

It is my belief that all criminal trials should be brought to justice rapidly. That should be doable within a year and a half to two years. I believe it is much faster down here. We have a duty to our citizens who live north of the Border. If it was in any other country in the world, we would be hopping up and down about the terrible injustice to Irish citizens waiting on trials for eight years. However, it is happening within our island, and it is time we dealt with that issue.

Photo of Catherine ConnollyCatherine Connolly (Galway West, Independent)
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Go raibh maith agat, an Teachta Ó Cuív. Anois, an Teachta Verona Murphy. I should warn the Deputy that I will be interrupting her to propose an adjournment very soon.

Photo of Verona MurphyVerona Murphy (Wexford, Independent)
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That is all right, a Leas-Cheann Comhairle. The former Minister for Justice, Senator McDowell, spoke at length in the Seanad debate on this Bill. He said we need dangerous people off our streets as soon as possible. He also spoke about the extension of the retirement age for judges to 72 rather than 70, which it currently is.

Allowing judges the option of working for an extra couple of years could be one way of helping to make the court system more efficient and to speed up the whole process and deal with the backlog. The Minister of State responded to say there was a requirement for a wider discussion but felt it was a good idea. Can we have that discussion? It is a practical and worthy proposal. Let us put that in train. Those with experience should be retained. We should do it sooner rather than later so I say we should get on with it. If this Bill can address the delays and bring about a swifter and more efficient criminal justice system, it will have my full support. However, we need meaningful progress. I repeat that we do not need the dismissal of reasonable and meaningful suggestions. If an extension of working age beyond 70 years of age for the Judiciary is a solution, let us have it on the table as soon as possible.

We need to take a similar approach to the Garda. We are in a crisis of recruitment and retention. It is becoming a joke. Each day, a member of the Government repeats the targets for the Garda. In 2023, we already know those targets are impossible and will not be met. Why not get ahead of the problem and introduce the option of a change in the retirement age of gardaí to allow them to take over positions involving front-desk duties or other administrative duties to free up others for active duty? The measures cannot be delayed to avoid necessary risk to law and order. We should act now. Delays mean that someone who has been accused of a crime, or the victims of an alleged crime, suffer greatly. If there is an acquittal, it means the damage caused by unnecessary delay must be compensated by the State. I believe we need serious, practical and progressive action in respect of the courts.

The headline in a newspaper today in the Minister of State's constituency of Wexford tells of a criminal who has committed 200 offences while on bail over the course of his criminal career. He is currently in prison and answering over the Internet or by video link.

Debate adjourned.