Jim Walsh (Fianna Fail)

I welcome the Minister to the House and I welcome the Bill. It is very comprehensive and I have no doubt it will have a very significant impact on our criminal justice system. Senator Cummins is not quite correct to state that we are just receiving this Bill. There has been much debate in this House on these issues over a long period of time. In September 2005, there was a very significant debate in the justice committee, at which the Minister outlined many of his intentions for this Bill. Many of the ideas that came forward at that meeting have been incorporated in the Bill.

Crime has been with us since Adam stole the apple. Throughout history, society has had a continuous fight against crime, even in times when summary justice was applied. Crime will always be with us and will never be eradicated. The challenge is to ensure that we have mechanisms in place to minimise the effects of crime on society, ensure that the guilty are brought to justice and that they pay their proper restitution. Nowadays we are faced with more sophisticated criminals who are also active in international crime. Therefore, there is a need to co-operate in a global attempt to tackle crime.

It is always a challenge to try to balance the human rights of individuals. Great emphasis is placed on the human rights of the criminal, but frequently insufficient emphasis is placed on those of the victim and on society generally. There is a constant need to re-examine that situation. On recent visits to jurisdictions abroad, I found effective mechanisms being pursued. I met an Irish person living in China who told me he loves living there because there is no tolerance of crime. Obviously many crimes committed here which might not even get the mandatory minimum sentence are capital crimes there and there might be issues of human rights. When visiting Japan and New Zealand I found very effective systems in place. They have lower levels of serious crime and may have harsher regimes. In Japan an offender incarcerated for a serious offence has no outside contact with family members or anybody else and serves a full sentence. We need to review the system continually. There is sufficient advocacy on the side of the human rights of the criminal, which needs to be balanced by a common sense approach to ensure that society as a whole does not pay a price in that regard.

There are many pillars to the approach to crime which need to be in place. Obviously legislation is needed and this Bill will be very beneficial in the fight against crime. However, investigation of crime is important. The Garda has a pivotal role. It needs to be expert, committed, resourced and very thorough in the manner in which it undertakes investigations. In this regard the ombudsman commission and the inspectorate will be effective mechanisms to ensure that performance is maintained at a high level. I was aghast, as were those who served on the committees that investigated various atrocities committed here by terrorists and perhaps others who did not deem themselves terrorists, to find that the Garda did not retain evidence essential to a successful prosecution. Files were missing. That approach to crime needs to be set aside and we must ensure we have a more efficient system than existed in the past.

The courts represent the third pillar. We need common sense to be injected into the system. Many of our judges are fine people with fine minds and intellects. They play a very important role in this regard. However, it is not uniform. There is a lack of consistency. No group in society no matter how privileged — or perhaps because it is privileged — should be a law unto itself. The Minister should consider systems such as that which we came across in Massachusetts when we visited Boston last year. That state has a judicial commission which is independent of the US Executive, which is essential. It ensures that judges are accountable for their conduct and behaviour and also for consistency in sentencing. While it may be regarded by some as interference, it would be a very constructive input into the system.

We have had investigations of judges which are cumbersome and we should have systems to deal with such issues. On one case a judge resigned over a certain misdemeanour, when he may not have deserved to lose his job. We should have had other ways of dealing with that matter. We need our structures in place.

The fourth pillar is restitution. Prison sentences should be used only as a last resort. I welcome the introduction of ASBOs and other mechanisms in the Bill, which will ensure that alternatives will be considered before prison sentences are applied. While prisons should be places of rehabilitation, they should also have reasonably tough regimes. People should not want to go to prison for a rest for a few months or a year, which in some cases is the opinion of some criminals. If people commit crime they must pay the penalty.

I welcome the changes in the Bill on warrants and summonses. There should be the power to amend technical or administrative errors in order to allow prosecution. There are too many loopholes that do not serve justice. I agree with the provision regarding mouth swabs and saliva taken without consent, which represents a common sense approach. However, the filing and retention of such samples will be crucial. I am not convinced that it is appropriate to retain samples for only 12 months if proceedings are not instituted. In some cases proceedings are not instituted simply because the criminal is so expert that it is not possible to mount a case effectively even though the authorities may be certain that he is the culprit. In such a scenario, I do not believe the DNA samples should be thrown out, thereby making it more difficult to detect future crimes committed by that individual.

I welcome the introduction of the principles applied by the Canadian Supreme Court of prior inconsistent statements. These will be taken into account in circumstances where the witness remains silent or denies making such a statement, which is sensible.

Under the amnesty for firearms, those surrendering arms will not be prosecuted for the offence of possession. However, subsequent forensic tests may lead to a prosecution. Perhaps it would be appropriate to confine those offences to cases where injury or death resulted from such crimes, which would give a real incentive to comply with the amnesty. Ideally we want people who may have been involved in criminal activity to be able to take the step of surrendering the firearm. If they take that step and put themselves on the record as having done so, they may well wish to leave the criminal scene entirely. It is sensible that the Garda Commissioner can require any person holding a gun to surrender it for ballistic tests.

Organised crime has been debated at length here and at the Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights. I welcome the Minister's adoption of the approach taken in Canada in this regard. I note the Minister's caveat that he believes it will not be widely used and would be difficult to prove. However, the offence of participating in the activity of a criminal organisation is particularly good. I suggest one exclusion in this regard. While I am not sure how prevalent undercover Garda activity is, if it is not prevalent, it should be. The Canadian system provides a dispensation from prosecution for policemen who infiltrate criminal gangs, except in the case of serious crime such as rape or murder. Our legislation makes no such provision. While I do not know how widespread such Garda activity is, it is a very effective tool against criminality. It is very sensible to give such gardaí an element of protection because if they are to be effective, they will obviously participate in some level of crime.

We have talked about the problem of illegal drugs in the past. While some might argue for the legalisation of drugs, there is no appetite for such an approach in any jurisdiction. It is a scandal that the godfathers of crime can walk free and often insulate themselves from detection and prosecution. We should review the barriers to such prosecution. Often the underlings or mules are those who pay the price and go to prison. It is sensible to review the value of drugs to relieve the prosecution of the onus to prove that the defendant was aware of the value. This provision arose from a Circuit Court acquittal. I welcome the new offence of importing drugs, which will attract a minimum sentence of ten years. I suggested such a provision at the Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights, as it represents a more serious offence.

The provisions to prevent the supply of drugs to prisons and to allow for the mandatory testing of prisoners are welcome. Effective mechanisms are needed to enable prisoners to overcome their drug addictions because they will otherwise fall back into crime after they are released.

Prison should be a last resort. It makes sense to suspend sentences and apply conditions, such as drug treatment or rehabilitation programmes for sex offenders, subject to the supervision of the probation and welfare services. We might also consider expanding these conditions to include community service and restorative justice. These new powers create a genuine incentive for people to reform and stay out of trouble.

The Bill provides that suspended sentences will be imposed consecutively where further crimes are committed. The probationary period should be doubled in such instances because it benefits the criminal if, for example, two years of a prison sentence are suspended. If a person reoffends after getting time off his or her prison sentence for good behaviour, a consecutive sentence equivalent to the period suspended should be imposed. A crime against society is committed when a person reoffends while serving a suspended sentence or on probation, so deterrents are needed in that regard.

I welcome this Bill. The overriding principle of the justice system should be to establish guilt and impose appropriate sentences.