Derek McDowell (Labour)

There would have to be compelling evidence. It is an interesting proposition but one we will have to examine. It is not contained in the Bill.

Part 5, which covers sections 25 to 67 and Schedule 1, provides for amendments to the Firearms Acts 1925 to 2000. The principal amendments include increased penalties generally for offences under the Firearms Acts and the introduction, for the first time, of mandatory minimum sentences in respect of certain firearms offences. In particular, penalties for the possession of a "restricted firearm" without the necessary permit are being increased to a fine of €5,000 or 12 months' imprisonment, or both on summary conviction, and a fine of €20,000 or seven years' imprisonment, or both, on indictment. I am providing, for the first time, for mandatory minimum sentences, of between five and ten years, for certain firearms offences, including possession of a firearm with intent to endanger life, possession of a firearm while hijacking a vehicle, use of a firearm to aid escape, possession of a firearm in suspicious circumstances, possession of a firearm with criminal intent and converting a shotgun into a sawn-off shotgun.

I am updating and strengthening the existing law governing the conditions attaching to the grant of a firearms certificate and the registration of firearms dealers. In so far as the new conditions governing the grant of firearms certificates are concerned, the new provisions specify certain additional requirements which will have to be met by applicants for certificates, including a new requirement that all persons wishing to hold a firearm satisfy the Garda that they have provided secure accommodation for the firearm. In this regard, I am also providing that certain firearms be deemed "restricted firearms" by reference to specific criteria, including the calibre, action type and muzzle energy. In future, any person wishing to obtain a certificate for such a firearm will have to apply directly to the Garda Commissioner. There will be a centralised, unified policy on decisions.

I have indicated previously my intention to introduce a gun amnesty and I am now bringing forward proposals in this regard. I am providing a statutory basis for an amnesty during which firearms may be surrendered to the Garda before new penalties and mandatory minimum sentences are introduced. I consider this fair because if we are to introduce the new mandatory terms in cases where one is found in possession of a firearm in the aforementioned circumstances, thus attracting a mandatory minimum sentence, one should have one last opportunity to hand up one's firearm before the terms are introduced. This will enable those in possession of firearms, who are not in compliance with the legal requirements, to regularise their position and thus enable the Garda to concentrate on more serious offenders. During the amnesty period, persons who surrender weapons will not be prosecuted for the simple illegal possession of the weapon. However, surrendered weapons will be forensically tested, where appropriate, and where found to have been used in a crime a weapon and the forensic evidence will be admissible in any proceedings subsequently brought. The amnesty will not secure absolution for people who come forward with murder weapons.

Among the other new proposals are the authorisation of rifle or pistol clubs and firing ranges, a statutory right of appeal to the District Court of decisions regarding firearms certificates and the introduction of a new type of certificate that will allow young persons to be trained in the use of firearms for sports purposes.

Part 6, which covers sections 68 to 69 and Schedule 2, provides for amendments to the Explosives Act 1875. These provisions provide for new offences governing the misuse of fireworks in a public place and the possession of illegally imported fireworks with intent to supply. I am also providing increased penalties under the 1875 Act, including significant increases in the existing penalties for illegal importation, sale and use of fireworks. This arises from research done by the Department of Justice, Equality and Law Reform in which a survey of public opinion was carried out to determine whether people want fireworks to be liberalised, such that they would be generally available as they are in the United Kingdom, or whether they want the law to remain as it is. It was remarkable that there was a strong consensus that the law should be left exactly as it is but made workable and enforceable. The public does not actually want fireworks to be available generally.

Part 7, which includes sections 70 to 79, inserts new provisions to deal with organised crime. This is becoming an increasingly serious issue both domestically and internationally. The Bill's provisions will enable Ireland to give effect to commitments arising from the UN Convention on Organised Crime, as well as in the European Union's joint action on this same subject. This Part of the Bill creates a number of new offences relating to participation in or assisting in the carrying out of criminal activities by organised gangs. It also extends the definition of "conspiracy" to cover conspiracies to carry out criminal acts, not only in Ireland or against Irish citizens but also conspiracies to carry out criminal acts abroad.

As I stated in regard to these provisions, it will be very difficult to successfully bring proceedings thereunder given the nature of the activity and the methods used by criminal gangs. However, that should not stop us from providing the law enforcement agencies with all the legal powers necessary to counteract these gangs. It is equally important that we be in a position to take our place internationally in the fight against organised crime.

Part 8 makes a number of changes regarding the misuse of drugs. Two new offences are created, one of importing drugs in excess of a certain value and another of supplying drugs to a prison. On the first of these, I propose that it attract a ten-year mandatory minimum sentence, which is currently available for the possession of drugs for sale and supply. I am also seeking to provide firmer guidance on the circumstances where the ten-year mandatory minimum sentences should apply. I will return to this topic on Committee Stage but one should be clear that the Oireachtas has made very clear its view that the mandatory minimum sentence should apply in all but the most specific and exceptional circumstances.

While there is evidence that the mandatory minimum sentences are being imposed more often than they were heretofore, there is still scope to tighten up and clarify what is meant by the existing legislative provision that refers to "specific and exceptional circumstances" that would lead to a mandatory minimum sentence not being imposed. I am convinced we must underline the need for stiffer sentences if we are to make headway in tackling the scourge of drug trafficking. Many in the drugs business regard a three-year or four-year sentence as a hit they can afford to take, after which they can re-emerge into society. When they consider the alternatives to imprisonment, which include risking the displeasure of their associates in the trade, they are willing to serve small sentences.

I want to send a polite but firm message from the Oireachtas to the Judiciary that we are serious about the mandatory minimum sentence. There has been an improvement regarding mandatory minimum sentencing. The number of cases in which the mandatory minimum sentence has been imposed has recently increased from 4% or 5% to over 20%. We are therefore being listened to but the process must go further. Exceptions must be exceptions and not rules.

Part 9, which includes sections 87 to 97, provides for a requirement that convicted drug offenders provide notification as to their place of residence and movements. This proposal is often referred to as a drug offenders register. Its aim is to provide the Garda with greater intelligence and information on the movement of known drug dealers and traffickers, with a view to assisting the force in its fight against this insidious crime.

The main provision states all persons convicted on indictment of a drug trafficking offence and given a sentence of one year or more, whether fully or partially suspended, are required to provide certain notification to the Garda regarding their place of residence and movements, including movements in and out of the country. The duration of the notification period varies according to the level of the sentence imposed. It ranges from 12 years in the case of a person who has been given a life sentence to one year in the case of a person who received a suspended sentence.

Adjustments are made in the case of persons who are under 18 when sentenced — generally the notification period is reduced by half for them.

Part 10 makes several changes regarding the law and practice in the area of sentencing. I can summarise this Part by saying it seeks to provide alternatives to imprisonment, where the court is satisfied the offender would benefit from an opportunity to deal with his or her offending in a non-custodial way.

There are four main elements to this Part. First, the power of the courts to suspend all or part of a sentence is put on a statutory basis. Section 99 deals with this issue. A court that suspends a sentence may attach conditions requiring the person to be of good behaviour and to keep the peace. There is provision in section 99(11) that any suspended sentence which is reactivated by reference to breach of the conditions must be served in addition to any subsequent offence which triggers the reactivation of the suspended sentence.

The second element arises in section 100. It deals with cases where the court intended to impose a fine and a custodial sentence. Under section 100 the courts will be able to impose a fine but may defer any custodial sentence on condition that the person keeps the peace and is of good behaviour. That is a way to allow local district judges punish somebody now, in other words, to deal with people in cases where the district judge is tempted to send them to jail directly to teach them a lesson. This allows a monetary fine to be imposed immediately and the question of a custodial sentence to be put back. Additional conditions may be attached requiring the person to deal with certain underlying issues such as drug or alcohol abuse. In this way, the new powers give the person an incentive to address the underlying cause of the offending.

The third feature in regard to sentencing arises in section 101. That section introduces new orders, which are restriction on movement orders. The title is self-explanatory. The orders will arise as an option where the court is proposing a sentence of three months or more imprisonment for an offence listed in Schedule 3 to the Bill. They are mainly public order and assault-type cases. The order may impose certain conditions about, for example, being, or as the case may be, not being in a specified place at specified times.

The final element relates to electronic monitoring. The Bill provides that compliance with the terms of a restriction on movement order may be monitored electronically. This is an enabling provision. I am not in a position to immediately introduce electronic tagging at this stage. I may establish a pilot project but I stress that I have not even prepared the plans for that at this point.

Parts 11 and 13 address issues relating to anti-social behaviour. Part 11 deals with such behaviour by adults, that is persons over 18. Part 13 deals with the arrangements for children between 12 and 18 years. The Part dealing with children inserts a new Part 12A into the Children Act 2001 and incorporates many aspects of the arrangements already in place under that Act, such as giving jurisdiction to the Children Court in regard to certain matters and the possibility of arranging for the child to be included in the very successful diversion programme.

All of us are aware of the increasing distress caused by anti-social behaviour. It is an issue that public representatives are constantly asked to deal with. I know it is a real source of anxiety and stress for many people, often elderly or vulnerable people. The offending activity is often of a relatively low level but is persistent and very distressing. I was anxious to find a way to respond to this phenomenon but in doing so I was looking for a response that was proportionate. I believe my proposals achieve that balance. In drawing up our proposals we took account of the experience in the United Kingdom with what are termed ASBOs. In particular, I was anxious to avoid some of the apparent excesses one reads about in that jurisdiction.

The same definition of anti-social behaviour is used in both Parts. In both cases, the process begins with a warning to desist, issued by a garda. In the case of adults, failure to observe that warning can result in an application to the District Court for an order. The order is obtained in a civil law procedure but breach of an order once it is made can give rise, as in the case of an injunction, to a criminal offence.

In the case of children, the warning will be followed by a meeting convened by the superintendent. The child and parents will be required to attend. The meeting may result in a "good behaviour contract" being drawn up or in the child being placed on the diversion programme. The superintendent may apply to the Children Court for an order if he or she is of the view that other options are unsuitable or if the good behaviour contract has been tried but has been breached.

I have given a brief outline of the procedures so that Senators will be assured that these orders are a last resort. They are not a response of first instance. Every effort is made to divert the person from offending behaviour. This is especially so in the case of children. It should also be noted that only a senior garda can apply to the court for an order. It will not be the case that a vengeful garda can unleash these orders on people in a scatter-gun approach. It will require a decision taken at senior level in the Garda Síochána before the court's jurisdiction, and no shortcuts will be taken.

The new arrangements will not interfere with the operation of the criminal law in cases where the behaviour is so serious or the damage so severe as to justify the application of the criminal law. As I mentioned, the new procedures are designed to deal with that lower level of activity which causes so much distress and interferes with normal enjoyment of life and property.

Part 12 amends the Children Act 2001. A recent youth justice review carried out by the Department found that while the Children Act 2001 provides a modern and progressive legislative framework for the development of our juvenile justice system, the structures in place for the delivery of services could be improved upon. Arising from the review, the Government agreed a number of major reforms including the establishment of the Irish youth justice service to provide leadership and bring a coherent and co-ordinated approach to the delivery of services to young offenders. The new service will assume responsibility for children's detention, community sanctions, restorative justice and the implementation of the outstanding provisions of the Children Act 2001. The amendments in this Part are necessary to give effect to these proposals. The Minister of State, Deputy Brian Lenihan, now has direct political responsibility for all of that area. He now sits at Cabinet and is the political driver of this agenda.

The chief purpose of the amendments is to transfer responsibility for the children detention schools from the Department of Education and Science to the Department of Justice, Equality and Law Reform, under which the Irish youth justice service is located. This will bring the children detention schools under the same service that will develop the youth justice strategy, manage the delivery and development of non-custodial sanctions and co-ordinate youth justice services at both national and local levels.

The Department of Justice, Equality and Law Reform, through the Irish youth justice service, will then have responsibility for the detention of all children up to the age of 18. These amendments also remove references to "children detention centres" from the Act, effectively extending the children detention school model to all children up to 18 years of age. Under the new structures no child will be detained within the prison system.

In addition to these amendments, I have also taken the opportunity to introduce a number of other amendments to the Children Act 2001, some consequential on the structural changes, others intended to improve or supplement existing services provided for in the Act. I propose to introduce a new power under which the court can request the attendance in court of a representative of the Health Service Executive where the court considers that could be of assistance. I am also proposing amendments to sentencing provisions, amendments to the inspection and investigative provisions, changes to the functions and composition of the Special Residential Services Board, and amendments which will enable the age of criminal responsibility to be raised to 12 years for almost all offences three months after the enactment of this Bill. The offences that will not have the 12-year limit are murder and rape-type offences because as I have said previously, the public would not accept if, say, two 11 year olds threw a child under a train, that there would be no sanction of any kind and that they would be allowed go back to school the following Monday with a black mark over them.