Barry Ward (Fine Gael) | Oireachtas source

Cuirim fáilte roimh an Aire agus gabhaim comhghairdeas leis as an mBille seo, Bille an-tábhachtach ar fad a dhéanann rudaí go bhfuil gá leo a chur sa dlí in Éirinn. On behalf of the Fine Gael group, I welcome the Bill. There is quite a lot in it. Although it is a miscellaneous provisions Bill, it does many really important things to change the law in respect of several matters.

I acknowledge the increase in the offences for section 3 assault under the Non-Fatal Offences Against the Person Act. It is important to acknowledge that this not only increases the high tariff to ten years but also increases the range available to judges. When judges are deciding on a sentence in this area, the range they will consider will be from zero to ten years, not zero to five and, therefore, the middle of the range will be five years rather than two and a half. That is an important change. Public order offences and small offences against the person are not small to the person involved. They are frequent. Assaults at this level are increasing in number, so it is important that we send out a very clear message from this House and the Government to the courts that this kind of behaviour must be stamped out and subject to the most serious penalty possible within the courts. I appreciate the increase.

There is great sense behind the decision to increase the penalty for conspiracy to murder to life. The Bill was very substantially amended in the Dáil. I do not have a difficulty with that, although the explanatory memorandum that has been given to us is now completely out of date and does not reflect anything in the Bill. Let me make a suggestion in this regard: when an explanatory memorandum refers to section 36 as an amendment to section 12 of the Criminal Evidence Act 1992, it is fine for those of us who are criminal barristers, but anybody reading the explanatory memorandum is no better off in understanding what the section does. In plain language, it should tell us what the amendment means. Of course, section 35 is no longer what the memorandum states it is anyway. I hope that in the context of dealing with this Bill as it goes through the Seanad, the Minister will consider the amendments submitted by Members of this House to improve it. An amendment I will table relates to a Bill I produced to amend the sentencing provisions for murder as they relate to children. At present, there is a gap in the criminal law that means a person who commits an offence as a child and is charged with murder can be prosecuted as an adult. For example, a person who commits an offence as a 17-year-old but who for various reasons is 18 or 19 when the matter reaches the courts is still exposed to a life sentence mandatorily rather than a sentence that reflects his or her age at the time of the commission of the offence. I have chosen an easy example but there are people who commit offences at the age of 15 and end up being prosecuted at the age of 19. Then face prosecution as an adult, notwithstanding that their illegal actions may have been taken as children. We also need to examine that.

The two new offences included in the Bill, namely stalking and non-fatal strangulation, are very important. Gabhaim mo bhuíochas freisin le Mary Groome, atá liom inniu agus atá ag déanamh a cuid taithí oibre liom. Bhíomar ag labhairt faoin bhfadhb seo inniu agus an difríocht idir ciapadh agus stalcaireacht. I am referring to the difference between harassment, which is already an offence, and stalking, where somebody is unaware of what is happening to them and then becomes aware. Let us consider just how much this affects people's individual liberty, the possibility of enjoying life and the feeling of security in life. It is really important that it become a stand-alone offence. It is very welcome to see it in the Bill.

Equally, the provisions on non-fatal strangulation must be considered. It is still an offence under section 3 of the Non-Fatal Offences Against the Person Act but it is absolutely appropriate that the Bill distinguishes between that kind of offending and a simple assault. I have heard in the courts that domestic abusers use strangulation so the victim will actually believe that she – it is invariably a she – is going to die. It is about so much more than the physicality of the assault because the psychological effect is very severe. I, therefore, welcome the fact that there is a stand-alone offence of non-fatal strangulation. That is very important.

I welcome what the Minister said about attacks on members of the Garda.

I wonder whether there is room in this Bill for provisions relating to the judge's rules. In terms of simple procedural matters, if at present a person is interviewed under arrest by gardaí, a series of protocols must be followed. These protocols, all of which are welcome, include those related to videoing, cautioning and access to a solicitor, but a practice that continues is that if a person is being interviewed by a garda, that garda, under rule 9 of the judges' rules, is required to take a handwritten note of what the person is saying. This means the interview can progress only at the speed at which the garda can write, which very substantially stymies his or her ability to vary the speed of the interview or use effective interview techniques to get information from a person under arrest.This needs to be changed in legislation. Without that ability, there is a view among gardaí that they cannot rely on the audio or video representation of interviews, which is what they currently rely on, without having a handwritten note as well.

An interesting amendment introduced in the Dáil to section 51 inserts a new section 9A in the Criminal Justice (Public Order) Act 1994. It creates an offence very much akin to the existing public order offence under section 8 of that Act, which is failure to comply with the direction of a member of An Garda Síochána in certain circumstances. The amendment creates an offence of failing to comply with the direction of a garda within a courtroom. This is welcome. There is an issue in certain courtrooms whereby even where a court garda is present, the extent to which he or she can intervene or deal with somebody who is being disruptive to the court is limited. This amendment to the 1994 Act is absolutely appropriate but little enough has been said about it. Might there be room for some bulking up of this tremendously important provision? There is increasingly a view among some people that it is somehow acceptable to disrupt important court proceedings.

An issue that arises in respect of individuals who choose to represent themselves in court has been brought to the Minister's attention previously. People have the right to do so of course. However, in certain circumstances where people represent themselves - it is more often men who do so rather than women - they can come face to face with the person who alleges they abused him or her or with a victim of a particular crime. I am thinking of sexual crimes, for example. Is there room to make provision in the Bill to prohibit self-representation in that limited circumstance? As someone who practises criminal law, I acknowledge it is really important to preserve the rights people have in the context of criminal trials. However, this issue points up a lacuna in what is provided in law.

There is a lot in this Bill and it is all positive. It shows a progression within the criminal law. The Bill is being used effectively to plug a few small gaps in the criminal law and also to acknowledge problems that exist and have come to the fore in recent years. It is appropriate, welcome and positive legislation. When we come to Committee Stage, I hope the Minister will cast a positive eye on amendments brought forward by Members.