Feargal Quinn (Independent)

It was 1969 when I took a case to the Supreme Court and won it on a constitutional basis. To my layman's eye our criminal justice system has what I call four pillars which must work together if we are to get the results we want. The first pillar is the criminal code of law, the body of legislation that defines offences, sets out procedures for investigating them and lays down a tariff of penalties that may be imposed on those who commit such offences. The Bill is part of that pillar.

The second pillar is the efficiency with which the law is implemented. In practical terms, that means the likelihood of being caught and being punished if one commits an offence under the first pillar. The first evidence one saw of that was the one Senator Brian Hayes talks about as well, namely, the road traffic legislation when penalty points were introduced and people thought they were going to be caught. They behaved themselves and road deaths dropped dramatically. As soon as they saw they were not going to be caught the road statistics and the number of accidents went up again.

The third pillar is an efficient and humane prison service. Senator Henry, I am sure, will speak on this, as she has before. She knows far more about it that many of us. It provides an appropriate custodial punishment for offenders. By "efficient" I mean one that is effective in removing offenders from society and in doing so avoids making the situation worse, as prisons all too easily can do, by becoming havens of drug abuse or universities of crime. By "humane" I mean a system that while centred on depriving people of their freedom, still respects the basic rights of its inmates as citizens and as human beings. The Supreme Court in the United States yesterday touched on a particular issue in that regard.

The fourth pillar, however, is a system of non-custodial punishments that is an alternative to prison, with the emphasis largely — though not completely — on rehabilitating the offender rather than just punishing him or her. My point is that in monitoring our criminal justice system and in reacting to changes in society which require us to amend and update that system, we need to pay attention, not to just one or two of these pillars, but to all of them as a single inter-locking totality. Our criminal justice system is like a car — to be fully effective it has to fire on all four cylinders at the one time.

However, one of the political problems we face is that members of the public tend to see the criminal justice system not as a careful balance between these four pillars, and instead tend to place undue emphasis on their expectations from one or at most two of them. An example of this is the tension that arises between the first and second pillars — between the laws and the penalties set down for offences and the efficiency with which the law is implemented. Whenever people become incensed about a particular type of crime, they invariably call for the law to be strengthened and for the penalties imposed to be made heavier. The frequent calls we hear for mandatory minimum sentences are a reflection of this and an attempt to take away one of the most important reasons for an independent Judiciary.

This public pressure to always keep strengthening the law and its penalties is based on a fallacy, namely, that the existence of laws on its own is an effective deterrent to crime. The truth, as confirmed both by research and common sense, is that the only thing that really deters crime is the likelihood one will be caught and properly punished. It follows that whenever we consider strengthening the law, as we now propose, we should ask how efficiently it is being implemented. Is existing law being implemented in such a way as to deter crime by creating a high likelihood that offenders will be caught and punished? If the answer is "No", then we should ask whether the emphasis is being put in the wrong place. Should we not be putting most of our effort into increasing the effectiveness of how to detect crime rather than fooling ourselves by a type of window dressing in which a more elaborate system of offences and penalties is constructed that is not effective in deterring crime because of not being efficiently implemented?

A similar type of tension arises between the third and fourth pillars — between the prison system and alternatives ways of dealing with crime. Here again all the public pressure is on one of those pillars. The public and, too often, the politicians, want to put every offender behind bars. In many cases we would like to throw away the key. In general, the public and many of us, the politicians, who serve them, are not over fussy about the need to keep our prisons both efficient and humane.

The fourth pillar is the alternative to non-custodial sentences. In this regard the public seems to be supremely indifferent. The reality of the matter, however, is that for a great many offenders a non-custodial alternative is a far better use of State resources. In terms of producing the desired dividend, namely, that the offender does not re-offend, they offer a far better investment than prison. I have been arguing for the use of technology for some time in this House, whether electronic tagging or whatever, which might enable somebody to be rehabilitated much more easily rather than to be locked up in prison. I am not sure whether this could not have been done before on grounds of legislation. Perhaps the Minister might be able to say. Certainly, in this case, it now looks as if we are taking the steps necessary to be able to do this.

I am not suggesting we will never need prisons for serious offenders. However, a high proportion of the prison population will produce a better dividend to society if punished in other ways. Of course a sizeable part of the prison population should not be incarcerated at all because their problems are probably mental rather than criminal. I recall speaking on this topic within weeks of coming into this House and trying to reason as why we put people into prison in the first place. I came to the conclusion that there were a number of reasons, one of which was to protect society, one was to rehabilitate and another was punishment. However, we do not get that structure right.

As we consider the Bill I ask Members to spare a moment to reflect on the criminal justice system as a whole, rather than just this part of it. We need to ask ourselves whether the entire system is achieving what is expected of it. If it is not, what must we do to arrive at a better answer? I should like to hear the Minister's response to that. I do not expect immediate answers. The Bill is going in the right direction, but I should like for it take the wider justice system into account.