Derek McDowell (Labour)

I thank the Senators for their contributions to this debate which were, as always, insightful and interesting. I will reflect on the arguments between now and the later Stages. We share a common aim to ensure that criminal law can respond effectively to the needs of a modern, complex society. This Bill contributes to that end.

This is a long Bill and got longer as it passed through the Lower House. I knew that a second criminal justice Bill could not be completed before the end of this Parliament. It was essential to decide what could be done now and what required further reflection. This is not the ultimate Bill and perhaps other aspects of criminal law should be changed but I am satisfied that all provisions of this Bill are priority items that must be addressed in the short term.

Senator Cummins referred to the age of criminal responsibility and it has been suggested that this should not be changed in any way. At present, a child is incapable of committing a crime before the age of seven. I do not know if it is a Catholic notion that the age of reason begins at seven years of age. Between the ages of seven and 14 there is a presumption against the criminal capacity of a child. The prosecution undertook the task of rebutting the presumption that a child was doli incapax, incapable of committing a crime.

The Children Act changed that age from seven to 12. A child of 11 years of age could not, in any circumstances, be found to have committed a crime. For various reasons, that section was never commenced. In recent times sexual assaults have been committed by youngsters. Children are maturing more quickly and are sometimes six feet tall in sixth class in primary school. These children are capable of inflicting damage and are capable of sexual acts whereas it would have been unheard of for children of that age a generation ago to commit them.

The law will now be readjusted so that the previous situation will remain. In respect of serious offences, we have allowed for a ten or 11 year old to be prosecuted. A case in the United Kingdom demonstrates that children can do terrible things. It would be simply unacceptable that children who had thrown a younger child off a cliff, under a train or in front of a bus could return to school on Monday as if nothing had happened. Can one imagine the media response if a child was paralysed in such an incident and the perpetrators returned to school on Monday after being told by a social worker that they should try harder in future? Outrage would ensue.

The Minister of State, Deputy Brian Lenihan, and I carefully considered these matters. We came to a balanced conclusion in respect of the amendments necessary to make the Children Act work properly. The Minister of State gave considerable thought to the anti-social behaviour package as it would merge with the existing legislation in the Children Act. He devised good proposals and a sensible approach to this matter.

It has been suggested that prison is punishment of last resort. It should be. If one can effect a deterrent or corrective measures without sending a person to prison it should be attempted. Certain offences are of such gravity that public confidence in the rule of law, as well as society's good, requires lengthy sentences.

I was pleased to hear Senator Brian Hayes's comments on ten-year sentences. This is not a case of a spat between the Legislature and the Judiciary on this matter. Legislators have come to the considered view, after seeing the effect of drugs on Irish society over 30 years, that those found in possession of large amounts of drugs must face severe punishment. That is the law and we live in a democracy. There is no room for judging the intent of the Legislature in this matter other than that it expects ten years to be the norm in such cases. Ten years is the appropriate measure.

We have moved from a situation where the ten-year sentence was imposed in only 4% of cases to the current situation where it is imposed in 20% of cases. However, one cannot say that specific and exceptional factors exist in 80% of cases which would excuse the non-imposition of what the Parliament has consistently said should be the level of punishment. I will not go further than to earnestly implore all those who exercise the power of the State under the Constitution to carefully consider what has happened in these Houses and how the Houses have examined the pattern of enforcement or non-enforcement of the minimum mandatory ten-year sentence.

People should consider that. Are we living in a democracy? Is this a republican democracy? Is it the case that the legislators are acting in an irresponsible or tabloid way which is undermining the rights of accused persons or is it not the case that the legislators rub shoulders each day with the victims of crime and see, in every community, the degradation of humanity caused by drugs? They want a solid response. It is wrong to say to somebody who is caught with €1 million worth of cocaine that he or she can get away with a three or four year sentence. That is equivalent to non-punishment for very serious offences. The money involved is so big and the drug networks are so strong that such penalties are derisory, particularly given the huge problems we face.

Like Senator Brian Hayes, I congratulate the Garda Síochána on the series of successful operations it is conducting at present. Tonight's Evening Herald shows the machine pistols with silencers that were confiscated in Limerick last night. That was in addition to drugs, cash and equipment for packing and measuring drugs. Legislators, Ministers and judges must confront the proposition that when events such as these are unfolding, there must be a united response which respects the democratic rule of law.

Many other aspects of this legislation have been commented on today. I thank Senator O'Toole for moving his Private Members' Bill to deal with the anomaly. I assure him it is being dealt with. Two Members of the House raised the wisdom or otherwise of the Department of Justice, Equality and Law Reform assuming responsibility for detention centres. The education provided in those centres will continue to be provided by the Department of Education and Science. It is not as if the Department of Justice, Equality and Law Reform fancies itself as an educator. It does not. However, the operation and management of detention schools require a considerable degree of expertise. The considered view of the Government is that the best Department to provide it is the Department of Justice, Equality and Law Reform, especially when it has a youth justice initiative and a Minister of State, Deputy Brian Lenihan, who will have overall responsibility in this area.

I do not wish to create a false impression but in recent times a number of facilities were opened after strong criticism of the State for not having such facilities. A situation quickly arose in some of them where there were between 60 and 80 staff and two or three children. One must be clear about what one is doing and be in a position to organise these institutions in an effective way. I am not being critical of anybody but these things can go badly wrong.

I accept it is extremely difficult to recruit and retain staff for these institutions. Most people believe there are better and more fulfilling jobs. The institutions are difficult to run and the children are difficult to manage. It is a challenging vocation to stick with that task. It is difficult for a state to run institutions on a satisfactory basis. I do not underestimate the difficulties that have existed in the past but I am confident that the youth justice service will do this job well.

Senator Henry and Senator Mansergh raised these points. It is not a question of the Department of Justice, Equality and Law Reform turning itself into an educational institution but that the management and control of these centres should be vested in that Department. They are connected with the courts, court decisions and detention. The education content will be provided, as always, by teachers who will be under the control of the Department of Education and Science.

If I were to attempt to reply to all the speakers it would take a long time. There will be plenty of time to discuss the detail of the Bill. I look forward to the debate on the detailed provisions and I hope that when we have finished our deliberations we will be happy that the Bill represents a significant step forward in the administration of criminal justice in Ireland.