Tom Parlon (Laois-Offaly, Progressive Democrats)

I am very pleased to present the Criminal Justice Bill 2007 to this House. Senators will be aware that this Bill represents the Government's legislative response to gangland crime. Its basic aim is that the law enforcement agencies, be they the Garda Síochána or the Director of Public Prosecutions, should have the means to tackle more effectively the great scourge of gangland crime. I believe the Bill will satisfy that aim.

As Senators will be aware, the Bill has completed all Stages in the other House where we had very successful and productive debates. Members will, no doubt, also be aware of the level of comment and debate the Bill has attracted from sources outside the Oireachtas since its publication. I know the Tánaiste was impressed by many of the points made both in the other House and by interested parties outside. As a result, he was pleased to bring forward several amendments of his own and he was also pleased to accept several amendments proposed by the Opposition. The Bill I present today is, therefore, more refined and targeted legislation. It is a better Bill because, as a Government, we listened to those who made their points rationally and with a genuine concern to see effective anti-gangland measures. The Tánaiste has always acknowledged that the Bill contains tough measures. He has also stated that the measures are both necessary and proportionate to the threat we face from organised gangland crime. The amendments I have spoken of ensure, more than ever, that we are proportionate in our response to gangland crime. The amendments have ensured the Bill is more targeted and focused.

Although it has been amended, the Bill retains all its essential elements regarding, for example, mandatory sentences for repeat offenders and post-release supervision arrangements. It will be clear, however, that as a result of a thorough review of several of these issues, which took full account of genuine concerns expressed inside and outside the Oireachtas, the Tánaiste has been able to amend these provisions to ensure they address and target much more precisely those who it was always intended should be the target of the legislation, namely, serious gangland criminals. It will do so without undue or excessive interference with the rights or freedoms of other persons.

Legislation such as this is clearly important. I stress that the Government is not relying solely or mainly on legislative changes in tackling the problem of gangland crime. As a Government, we recognise the need for more and improved resources to help the Garda, in particular, as it seeks to build intelligence and undertake difficult surveillance and investigations. While we are fully committed to the idea that good police work is essential to a successful outcome, we recognise that good police work requires resources and manpower.

The Government has, over the past decade, built up the Garda in an unprecedented way. In December last, it responded rapidly and in a substantive manner to an upsurge in gangland crime, by agreeing a major package of anti-crime measures which included a further increase of 1,000 in the strength of the Garda Síochána to bring the total to 15,000 over the next three years; sanction for 300 additional civilian administrative support posts for the Garda Síochána to release gardaí for frontline duties; recruitment for the seven senior civilian posts recommended in recent reports by Kathleen O'Toole, head of the Garda inspectorate, and Senator Maurice Hayes of this House; an increase in the retirement age for gardaí, sergeants and inspectors from 57 years to 60 years; a proportionate increase in the targeted strength of the Garda reserve from 900 to 1,500; increased staffing for the forensic science laboratory, Office of the Director of Public Prosecutions and the Courts Service; and no limit on funds available for the witness protection programme.

Before I outline the Bill's main provisions, the Tánaiste would like me to pay tribute to the valuable input from the Balance in the Criminal Law review group. When he established the review group under the chairmanship of Dr. Gerard Hogan, SC, the Tánaiste asked it to examine many of the broader issues in relation to the criminal law. The group prepared an interim report on the right to silence at the beginning of February and its recommendations are reflected in Part 4 of the Bill. It has since published its final report, a wide-ranging document which will form the basis for a comprehensive debate on the state of the criminal law. While some of its recommendations have been taken on board in the Bill, particularly regarding the right to silence, I have no doubt many of its remaining recommendations will find their way into future legislation.

I will now give the House an outline of the Bill's main elements. In the time available I may not be able to mention every issue but I will deal with all the significant areas. The Bill has 60 sections in nine Parts, with two Schedules. Part 1 deals with standard items such as commencement and interpretation. Part 2, which includes sections 5 to 23, inclusive, updates the law on bail. I will concentrate on sections 6, 7, 11 to 13, inclusive, and 19.

Section 6 provides that the applicant for bail may be required to provide a statement on his or her assets and income as well as details of any criminal convictions and previous bail applications. Section 7 provides that a chief superintendent may give his or her opinion that the applicant, if given bail, is likely to commit a serious offence and that the application should therefore be refused. Sections 11 to 13, inclusive, provide that a person granted bail may be subject to electronic monitoring if the bail is conditional on the person being or not being in certain places at certain specified times. Section 19 provides the prosecution with a right of appeal against the grant of bail or in respect of any conditions attaching to bail, where it is granted. Such a right is not currently available to the prosecution. This section also allows the High Court to transfer bail applications to the Circuit Court in cases where the case is triable by the Circuit Court.

The changes being introduced by Part 2 will ensure the prosecution authorities are in a position to mount a more effective challenge to bail applications where there is a likelihood of the applicant committing serious offences if given bail.

Part 3, which covers sections 24 to 27, inclusive, deals with sentencing. Before I outline the nature of the proposed provisions I remind the House of some general remarks made by the Tánaiste on sentencing at Second Stage in the Other House. He made the point then that there must be consistency in sentencing. When it comes to the mandatory minimum sentencing provisions applicable to, for example, section 15A on drug trafficking offences, the will of the Oireachtas, which is also the will of the people, is that a conviction should lead to a ten-year sentence with seven and a half years being served, taking account of remission for good conduct. As the Tánaiste indicated, this provision is neither disproportionate nor arbitrary but a conservative measure that reflects the values of society. It was established for the guidance of the Judiciary and to deter people in the drugs trade who may be tempted to resume their criminal activities after serving short sentences.

Most people agree that the evidence available to us suggests a lack of consistency in sentencing, especially for drugs and firearm offences. This circumstance leads to calls for legislation. The Tánaiste was clear when he stated that the people expect coherent, rational and consistent sentencing in the courts. He was also clear in stating his own preference, namely, the development of an effective sentencing jurisprudence by the courts. He added that, collectively and individually, the independence of the Judiciary is enhanced rather than damaged by collective measures taken by the Judiciary to ensure consistency, rationality and coherence in sentencing. The Tánaiste gave his personal assurance that he would give every backing through resources and legislation to achieve that end.

Schedule 2 is central to Part 3. The offences in Schedule 2 are among the most serious known to the criminal law and include all the offences typically associated with gangland crime, including drug trafficking and firearms offences.

Section 25 provides that a person who commits any one of the scheduled offences and has been given a sentence of five years' imprisonment or more and who within seven years commits another one of the scheduled offences will be subject to a penalty of imprisonment equal to at least three quarters of the maximum laid down by law for the second offence in question. Where the second offence carries a potential maximum of life imprisonment, a sentence of at least ten years must be imposed. This section will not apply where it would be disproportionate to do so. This is intended to ensure the section is applied only in the way it is intended, namely, to serious gangland cases. Equally, it ensures the section is not applied to other persons who may technically come within this section but are not linked to gangland activity. The aim and focus is on gangland offenders.

Section 26 provides the court with two post-release options in the case of persons convicted of a scheduled offence. It may impose a monitoring order, whereby the Garda may track an offender's movements and, as a result, build intelligence and establish that the person has not returned to criminal activity. The court may additionally or alternatively impose a protection of persons order, which can ensure that victims and other persons are not molested or harassed by the offender. In both cases the orders may last for up to seven years. These provisions on sentencing are innovative and reflect the need to find new ways to meet the challenge we face from organised crime.

Part 4, which covers sections 28 to 32, inclusive, deals with the right to silence. I will deal with sections 28 to 30, inclusive, together. Section 28 inserts a new version of section 18 of the Criminal Justice Act 1984. Section 29 inserts a new version of section 19 of the 1984 Act, while section 30 inserts a new section 19A into the 1984 Act. The provisions in sections 18, 19 and 19A, by virtue of coming under the 1984 Act, are applicable to all arrestable offences. Sections 18 and 19 will deal with inferences that may be drawn from a failure or refusal to account for certain marks or stains or from being present at a certain place at a particular time. Section 19A will deal with a failure to mention while being questioned something that is later relied on by the accused in his or her defence.

I will highlight certain important features of the new proposals. Under the current provision in sections 18 and 19, inferences may be drawn only if it is the arresting garda who asks the arrested person to account for, in the case of section 18, objects or marks or, in the case of section 19, his or her presence in a particular place, and the person refuses or fails to do so. This has proven to be a significant restriction on the operation of these sections. Under the revised version now being proposed for sections 18 and 19 and the new section 19A, any garda questioning the suspect may ask him or her to account for the objects, marks or, as the case may be, his or her presence in a particular place.

The court may draw inferences in situations where it is determining whether the person is guilty or where it is considering an application for dismissal of the charge in the course of a trial on the basis that there is no case to answer. It is proposed that the court may draw an inference only where the circumstances in question clearly call for an explanation. An inference may be drawn only where it is or is capable of being treated as corroboration for any other evidence on the matter. A person may not, however, be convicted solely or mainly on an inference. The court may take account of the point in time when the accused first gave an account in about the objects or marks or presence at the place. The court must not draw inferences unless it is satisfied the accused had been given a caution in clear terms and had access to a solicitor before failing or refusing to answer the question put to him or her by the investigating garda. An electronic recording of the interview must be available before an inference is drawn, unless the accused had refused to have the questioning recorded.

Since the new section 19A, with sections 18 and 19, has general application to all arrestable offences, it is no longer necessary to have more specific provisions. As a result, section 7 of the Criminal Justice (Drug Trafficking) Act 1996 and section 5 of the Offences against the State (Amendment) Act 1998 are being repealed. This is being effected by section 3 and Schedule 1 of the Bill. Section 7 of the 1996 Act and section 5 of the 1998 Act covered the same ground as the new section 19A, but to a more limited extent than is now proposed.

Section 31 amends and updates section 2 of the Offences against the State (Amendment) Act 1998. Section 2 is more specific than section 5 of the 1998 Act in that it relates to inferences that may apply in cases relating to membership of an illegal organisation. It would, therefore, be appropriate to repeal it but it is being amended to include, in particular, the safeguards now generally available under sections 18, 19 and 19A of the 1984 Act in the case of arrestable offences. Section 32 provides a new basis for the making of statutory regulations in regard to the content and the administration of cautions.

This completes a full revision of the law in this area and goes further in some respects than had been recommended by the review group, for example, in ensuring a right to consult a solicitor before deciding whether to answer a question. The Tánaiste is satisfied the new situation improves considerably on the existing situation. It is a balanced set of proposals that allows for reasonable and commonsense inferences to be drawn but that nevertheless also provides strong and enforceable safeguards. Account was taken, when formulating these proposals, of developments in other jurisdictions, for example, England and Wales, where the law was changed in 1994, and in Northern Ireland, where the law was changed in 1988. Their laws go further than what is now proposed here, for example, by allowing inferences to be drawn from an accused person's failure to take the witness stand at the trial. Account was also taken of the European Convention on Human Rights and the jurisprudence of the European Court of Human Rights. As a result of this comprehensive revision, our law will be fully up to date and well balanced.

Part 5, section 33, deals with the Misuse of Drugs Act 1977, in particular section 27 of that Act which deals with the question of mandatory minimum sentences. Section 27 has already been amended in 1999 and 2006. The section is now being presented in a consolidated way, taking account of those previous amendments and adding a new subparagraph (a) to subsection (3C). The new paragraph (a) is a so-called construction clause that sets out in the clearest terms the intentions of these Houses in regard to mandatory minimum sentences for drug trafficking offences. It will be perfectly clear that the mandatory minimum term of ten years must apply in all but the most extreme and exceptional cases.

I have already set out the Tánaiste's general position on sentencing. Section 27 of the 1977 Act, as it is now set out, represents a clear statement of when the ten-year mandatory minimum is to apply. We are giving clear expression to the will of the Oireachtas and, for the present, nothing more need be said on the matter.

Part 6, sections 34 to 40, deals with firearms, in particular with the circumstances where the mandatory minimum term of either ten or five years' imprisonment is to apply. Each section repeats the so-called construction clause to which I referred in the case of drug trafficking. The new clause puts beyond doubt the intentions of these Houses in regard to this issue, if anyone could ever have been in any doubt about the matter.

Part 7, sections 41 to 43, deals with amendments to the Garda Síochána Act 2005. Section 41 inserts a new Chapter 3A into the 2005 Act providing for the establishment and functions of a Garda Síochána executive management board. The board will consist of executive members — the Garda Commissioner as chairperson, the deputy Garda commissioners and a member of the civilian staff of the Garda Síochána at a grade equivalent to that of a deputy Garda commissioner — and three non-executive members. The three non-executive members, who will have appropriate management experience, will be appointed by the Government on the nomination of the Minister. They will serve in an advisory capacity.

The board will keep under review the performance by the Garda Síochána of its functions, as well as the arrangements and strategies in place to support and enhance the performance of those functions. It will keep under review the arrangements and strategies in place to support and improve the performance of the organisation and the corporate governance arrangements and structures within the Garda Síochána. The board will produce reports every six months on the performance of its functions to the Minister and they will be laid before each House of the Oireachtas.

Section 42 of the Bill provides for the replacement of section 42 of the 2005 Act. Section 42 enables the Minister to order special inquiries to be carried out into Garda activities in certain circumstances. The Tánaiste has come to the conclusion that the provision should be strengthened and extended. Therefore, inquiries under the current section 42, which are limited to the administration, practice or procedure of the Garda Síochána, will be broadened to include operations of the force and the conduct of its members. The person appointed by the Minister to undertake the inquiry may interview not just members of the Garda but also any other person who has information or control over a document or thing of interest to the inquiry. That person will also be empowered to apply to the High Court for an order of compliance, backed up, if necessary, by the possibility of an order for contempt being made by the court where there is a failure to co-operate with the inquiry.

Section 43 provides for a number of amendments to the Garda Síochána Act 2005. Some of these amendments arise from suggestions made by the Garda Síochána Ombudsman Commission. The remainder are mainly technical in nature and involve minor changes to clarify certain matters which have come to light since the passing of the 2005 Act.

Part 8, section 44, amends the Sea Fisheries Acts 2003 to 2006. The amendments are necessary to strengthen controls in regard to the detection and enforcement of illegal fishing activity, particularly in regard to the powers of sea fisheries officers acting under a search warrant, as well as changes relating to penalties under the Sea-Fisheries and Maritime Jurisdiction Act 2006. I understand the necessity for these amendments was highlighted by a recent case where sea fisheries protection officers were denied access to a premises. Their legal right to enter was subsequently vindicated by the High Court. The amendments are included in this Bill at the request of the Minister for Communications, Marine and Natural Resources and with the approval of the Government.

Part 9, sections 45 to 60, covers several important issues. Section 45 amends the Garda Síochána (Complaints) Act 1986 in regard to the terms of office of the members of the Garda Síochána Complaints Board and the Garda Síochána Complaints Appeal Board, respectively. It is necessary to provide that those members cease to hold office upon the repeal of the 1986 Act, when the relevant provisions of the 2005 Act are commenced.

Section 46 deals with the possession of articles or cash for use in the commission of certain serious offences that are listed. For this purpose, it substitutes a new version of section 183 of the Criminal Justice Act 2006. It also provides for a new section 183A of the 2006 Act. An offence is committed where a person has possession of the article or the cash in circumstances that give rise to a reasonable inference that they have it for purposes of committing one of the listed offences. It is a defence for the person to show that he or she did not possess it for the commission of an offence. The penalty on conviction under either section 183 or 183A is up to five years' imprisonment.

This section again underlines the fact that the Bill aims to tackle gangland crime at all levels, including the support systems that are so essential for the main players. These provisions will be very useful in tackling those who assist and facilitate the major gang bosses.

Section 48 provides for a new section 6A of the Criminal Justice Act 1984. It will permit the use of reasonable force in the taking of samples — finger or palm prints or photographs — under section 6. The person must first be cautioned and the use of reasonable force must be authorised by a superintendent and supervised by an inspector. It must also be video recorded. Unfortunately, a provision such as this is necessary but I hope Senators will agree this section contains strong and verifiable safeguards.

Section 49 replaces section 8 of the Criminal Justice Act 1984. Section 8 deals with the destruction of fingerprint samples and similar records, generally after 12 months where no prosecution is taken or within 21 days where a prosecution ends in an acquittal or dismissal. In other words, only samples or records relating to convicted persons may be retained. There is a growing consensus that such a limited approach is no longer justified. The new section 8, therefore, is based on the principle that all samples and records are to be retained indefinitely but that, in the interests of justice, some provision needs to be made for removal and destruction of samples in individual cases. The new section 8 provides a mechanism for the removal, etc. of samples in these limited circumstances. This change will enable the Garda to develop a more comprehensive databank of information which can be searched for intelligence purposes. This is essential for modern police work. Similar proposals are contained in the legislation being drafted on the establishment of a DNA databank.

Sections 50, 51 and 53 introduce new detention arrangements for persons arrested in connection with murder where firearms or explosives were used, capital murder, false imprisonment where firearms were used or possessing a firearm with intent to endanger life. These offences are ones linked to gangland activity and the extended detention time is necessary to locate and interview witnesses and suspects as well as providing adequate time for the forensic examination of crime scenes.

In the cases coming under these new arrangements, persons may be detained for up to seven days. This is already the case under the Criminal Justice (Drug Trafficking) Act 1996. Detention under that Act is under judicial authorisation and supervision after the first 48 hours and it will be the same under this new provision. The new power is limited to the serious cases I have mentioned. It is limited to this set of offences because the use of such an arrangement can be justified only in cases that present the level of threat that comes with gangland crime.

Section 52 ensures certain sections of the Criminal Justice Act 1984 apply to persons arrested and detained under the new powers. The relevant sections provide, for example, for access to a doctor, if required, access to a solicitor and also provide that a person must be released once the detention is no longer required or justified.

Section 56 restricts access to tapes of Garda interviews. In future, only accused persons can have access, and then only with permission of the court. This deals with an abuse which is widespread, whereby anyone whose interview was taped may have access. Tapes are then used to prove, so to speak, that the arrested person did not reveal details of accomplices, etc. Section 57 provides that it will no longer be necessary to commit to writing statements that are recorded electronically. This will save on Garda time and reflects the increased use of electronic equipment in investigations.

Section 58 clarifies the position of non-Garda Criminal Assets Bureau officers who attend at interviews with suspects. Section 59 clarifies that the changes introduced by section 22 of the Criminal Justice Act 2006 do not affect the right of the Director of Public Prosecutions to bring appeals against unduly lenient sentences. It also clarifies that the Supreme Court is not restricted in its review to consideration of only the point referred to it from a decision of the Court of Criminal Appeal. Section 60 clarifies the operation of section 99 of the Criminal Justice Act 2006 in so far as that section's provisions on suspended sentences are to apply, especially in instances where there are consecutive sentences following a partially suspended sentence. This is an important technical point.

I am happy to commend the Bill to the House. As we have seen, it is major legislation with many important and far-reaching provisions. Although diverse in its range of issues, it has a unity in so far as each Part, other than Part 8, has its own part to play in the fight against organised crime. I look forward to hearing the views of Senators on this important Bill.