Friday, 30 June 2006
Criminal Justice Bill 2004: Second Stage.
I am pleased to have the opportunity to present this important Bill to Seanad Éireann. The House will be aware that the Bill recently completed its passage through the Dáil. We had long and fruitful discussions before and after the Bill was published in that House, especially on Committee Stage, on the content of the Bill. The heads of the Bill had been published for discussion and the Bill had a long gestation. I now look forward to the contributions and observations of Members of this House.
The Bill covers a diverse set of topics, all of them central to the main thrust of the Bill, which is to update criminal law and procedure in many areas. I will outline the main provisions shortly. However, because this is a lengthy Bill and to save the House the undoubted pleasure of listening to me at great length——
——I have circulated a memorandum to Senators setting out the Bill in its present state. Some of the content is technical and one would need three statutes in front of one to work out what the text of the Bill will do.
During the course of the Dáil debates, it was made clear that all parties share a belief that the criminal law must be kept up to date and relevant as otherwise respect for the law is diminished and it is not seen to be responding to the needs of society. Society seeks a criminal law regime which affords it protection and allows people to plan and conduct their private and business lives without interference from criminals. It is a basic and ongoing duty of every Government and of the Oireachtas to ensure citizens have that level of security and retain a high degree of confidence in the efficacy of the law. Modernising and updating the law is, therefore, a continuing requirement on us as legislators.
While this Bill covers an extremely wide range of issues affecting the criminal law, I want to draw the attention of Senators to the additional powers being granted to the Garda Síochána in a number of areas. I mention as an example section 9, which provides for an extension in the maximum period of detention under section 4 of the Criminal Justice Act 1984 from 12 to 24 hours. While I am satisfied that additional powers for the Garda are necessary to deal more effectively with crime, I am equally convinced that counter-balancing measures must provide safeguards against the potential abuse of those powers. I felt it was therefore necessary to provide those safeguards in tandem with these proceedings and before granting those additional powers.
The Garda Síochána Act 2005, with its provisions for an ombudsman commission and a Garda inspectorate is a key element in the package of safeguards. As Senators are aware, both the inspectorate and the ombudsman commission have been formally established and will become fully operational over the coming months. These bodies, when fully operational, will bring a greater degree of transparency and accountability to Garda procedures and will provide independent assurance that best practice is being followed. It will also be the task of these bodies to deal openly with any shortcomings. I know Garda management is fully committed to the successful operation of the new structures and I can give the same assurance on my own behalf and on behalf of the Department of Justice, Equality and Law Reform.
The roll-out of the arrangements for video recording of Garda interviews is another vital element in the package of safeguards. A video of an interview will provide the best possible assurance that proper procedures are maintained. We have now reached a point where facilities are available in every Garda division and, at the next level down they are available in the great majority, approximately 90%, of Garda districts. In 2005, the Garda estimates that 98.1% of interviews were recorded. In the less than 2% of cases where recording did not occur either the detained person did not wish to have the interview video recorded or there was an over-supply of people to be interviewed and an inadequate amount of equipment.
These developments I have mentioned, taken together with the very substantial investment in technology, equipment and general resources, not to mention the greatly increased number of personnel in the Garda Síochána, will ensure a modern, well-resourced police force capable of facing the future with confidence.
The Bill contains 196 sections in 15 Parts, as well as four Schedules. I propose to outline the main provisions in each Part. The memorandum I circulated provides more details on each section. Part 1 deals with preliminary and general matters. Part 2 contains several provisions concerning the investigation of offences. I want to mention four issues in particular. I draw the attention of the House to section 5 which provides a new statutory power to preserve a crime scene. Section 6 provides a revised general provision on the issuing of search warrants where an arrestable offence has been committed or suspected. The extension of detention periods to which I already referred arises in section 9. This section amends section 4 of the Criminal Justice Act 1984 by providing for an additional extension of up to 12 hours to the two six-hour periods already available under the 1984 Act.
The fourth item in this Part I wish to mention arises in section 14 and deals with DNA sampling under the Criminal Justice (Forensic Evidence) Act 1990. The changes proposed will result in a reclassification of mouth swabs and hair samples. They will no longer be considered as intimate samples and consent will no longer be required. I should add at this point that, following the publication of a report by the Law Reform Commission last November, new legislation is being prepared in the Department of Justice, Equality and Law Reform on the establishment of a DNA database.
Part 3 of the Bill contains sections 15 to 20 and deals with the admissibility of certain witness statements. In particular, it deals with circumstances where a witness recants and refuses to stand over a previous statement. This occurred in several cases in recent years and has the potential to do serious damage to the criminal justice system and public confidence therein. My proposals aim to deal with the issue in a sensitive and balanced way. It will be for the court in each case to determine whether a previous inconsistent statement should be admitted and the Bill provides guidelines for the court in arriving at its decision.
Part 4, which includes sections 21 to 24, deals with appeals in certain criminal proceedings. In particular, it expands in a modest way the circumstances in which the prosecution can appeal a decision. It should be noted that in appeals arising from cases involving an acquittal, the appeal is by nature of an appeal on a point of law and continues to be without prejudice to the acquittal verdict. Pending completion of a report on this area of law by the Law Reform Commission, I decided to make only limited changes in this Bill. I may wish to return to this issue once the commission's report becomes available.
In this regard, some interesting amendments were tabled in the Dáil. Deputy Howlin tabled one modelled on English law, for which amendment there is something to be said but which I want to consider. He made the point that if somebody is acquitted of a very serious offence such as murder, rape or kidnapping, which carries a mandatory or maximum sentence of life imprisonment, and it later becomes crystal clear that there is a compelling case that the person is guilty, there should be a right to reopen the whole case, as in England. For instance, if a person were accused of kidnapping and murdering somebody and it later became clear that he or an accomplice had kept a video record of the killing, which record was not available during the first trial, this evidence might, in limited circumstances, trigger a retrial. Thus, one could not say the man was acquitted and could therefore not be retried.
There would have to be compelling evidence. It is an interesting proposition but one we will have to examine. It is not contained in the Bill.
Part 5, which covers sections 25 to 67 and Schedule 1, provides for amendments to the Firearms Acts 1925 to 2000. The principal amendments include increased penalties generally for offences under the Firearms Acts and the introduction, for the first time, of mandatory minimum sentences in respect of certain firearms offences. In particular, penalties for the possession of a "restricted firearm" without the necessary permit are being increased to a fine of €5,000 or 12 months' imprisonment, or both on summary conviction, and a fine of €20,000 or seven years' imprisonment, or both, on indictment. I am providing, for the first time, for mandatory minimum sentences, of between five and ten years, for certain firearms offences, including possession of a firearm with intent to endanger life, possession of a firearm while hijacking a vehicle, use of a firearm to aid escape, possession of a firearm in suspicious circumstances, possession of a firearm with criminal intent and converting a shotgun into a sawn-off shotgun.
I am updating and strengthening the existing law governing the conditions attaching to the grant of a firearms certificate and the registration of firearms dealers. In so far as the new conditions governing the grant of firearms certificates are concerned, the new provisions specify certain additional requirements which will have to be met by applicants for certificates, including a new requirement that all persons wishing to hold a firearm satisfy the Garda that they have provided secure accommodation for the firearm. In this regard, I am also providing that certain firearms be deemed "restricted firearms" by reference to specific criteria, including the calibre, action type and muzzle energy. In future, any person wishing to obtain a certificate for such a firearm will have to apply directly to the Garda Commissioner. There will be a centralised, unified policy on decisions.
I have indicated previously my intention to introduce a gun amnesty and I am now bringing forward proposals in this regard. I am providing a statutory basis for an amnesty during which firearms may be surrendered to the Garda before new penalties and mandatory minimum sentences are introduced. I consider this fair because if we are to introduce the new mandatory terms in cases where one is found in possession of a firearm in the aforementioned circumstances, thus attracting a mandatory minimum sentence, one should have one last opportunity to hand up one's firearm before the terms are introduced. This will enable those in possession of firearms, who are not in compliance with the legal requirements, to regularise their position and thus enable the Garda to concentrate on more serious offenders. During the amnesty period, persons who surrender weapons will not be prosecuted for the simple illegal possession of the weapon. However, surrendered weapons will be forensically tested, where appropriate, and where found to have been used in a crime a weapon and the forensic evidence will be admissible in any proceedings subsequently brought. The amnesty will not secure absolution for people who come forward with murder weapons.
Among the other new proposals are the authorisation of rifle or pistol clubs and firing ranges, a statutory right of appeal to the District Court of decisions regarding firearms certificates and the introduction of a new type of certificate that will allow young persons to be trained in the use of firearms for sports purposes.
Part 6, which covers sections 68 to 69 and Schedule 2, provides for amendments to the Explosives Act 1875. These provisions provide for new offences governing the misuse of fireworks in a public place and the possession of illegally imported fireworks with intent to supply. I am also providing increased penalties under the 1875 Act, including significant increases in the existing penalties for illegal importation, sale and use of fireworks. This arises from research done by the Department of Justice, Equality and Law Reform in which a survey of public opinion was carried out to determine whether people want fireworks to be liberalised, such that they would be generally available as they are in the United Kingdom, or whether they want the law to remain as it is. It was remarkable that there was a strong consensus that the law should be left exactly as it is but made workable and enforceable. The public does not actually want fireworks to be available generally.
Part 7, which includes sections 70 to 79, inserts new provisions to deal with organised crime. This is becoming an increasingly serious issue both domestically and internationally. The Bill's provisions will enable Ireland to give effect to commitments arising from the UN Convention on Organised Crime, as well as in the European Union's joint action on this same subject. This Part of the Bill creates a number of new offences relating to participation in or assisting in the carrying out of criminal activities by organised gangs. It also extends the definition of "conspiracy" to cover conspiracies to carry out criminal acts, not only in Ireland or against Irish citizens but also conspiracies to carry out criminal acts abroad.
As I stated in regard to these provisions, it will be very difficult to successfully bring proceedings thereunder given the nature of the activity and the methods used by criminal gangs. However, that should not stop us from providing the law enforcement agencies with all the legal powers necessary to counteract these gangs. It is equally important that we be in a position to take our place internationally in the fight against organised crime.
Part 8 makes a number of changes regarding the misuse of drugs. Two new offences are created, one of importing drugs in excess of a certain value and another of supplying drugs to a prison. On the first of these, I propose that it attract a ten-year mandatory minimum sentence, which is currently available for the possession of drugs for sale and supply. I am also seeking to provide firmer guidance on the circumstances where the ten-year mandatory minimum sentences should apply. I will return to this topic on Committee Stage but one should be clear that the Oireachtas has made very clear its view that the mandatory minimum sentence should apply in all but the most specific and exceptional circumstances.
While there is evidence that the mandatory minimum sentences are being imposed more often than they were heretofore, there is still scope to tighten up and clarify what is meant by the existing legislative provision that refers to "specific and exceptional circumstances" that would lead to a mandatory minimum sentence not being imposed. I am convinced we must underline the need for stiffer sentences if we are to make headway in tackling the scourge of drug trafficking. Many in the drugs business regard a three-year or four-year sentence as a hit they can afford to take, after which they can re-emerge into society. When they consider the alternatives to imprisonment, which include risking the displeasure of their associates in the trade, they are willing to serve small sentences.
I want to send a polite but firm message from the Oireachtas to the Judiciary that we are serious about the mandatory minimum sentence. There has been an improvement regarding mandatory minimum sentencing. The number of cases in which the mandatory minimum sentence has been imposed has recently increased from 4% or 5% to over 20%. We are therefore being listened to but the process must go further. Exceptions must be exceptions and not rules.
Part 9, which includes sections 87 to 97, provides for a requirement that convicted drug offenders provide notification as to their place of residence and movements. This proposal is often referred to as a drug offenders register. Its aim is to provide the Garda with greater intelligence and information on the movement of known drug dealers and traffickers, with a view to assisting the force in its fight against this insidious crime.
The main provision states all persons convicted on indictment of a drug trafficking offence and given a sentence of one year or more, whether fully or partially suspended, are required to provide certain notification to the Garda regarding their place of residence and movements, including movements in and out of the country. The duration of the notification period varies according to the level of the sentence imposed. It ranges from 12 years in the case of a person who has been given a life sentence to one year in the case of a person who received a suspended sentence.
Adjustments are made in the case of persons who are under 18 when sentenced — generally the notification period is reduced by half for them.
Part 10 makes several changes regarding the law and practice in the area of sentencing. I can summarise this Part by saying it seeks to provide alternatives to imprisonment, where the court is satisfied the offender would benefit from an opportunity to deal with his or her offending in a non-custodial way.
There are four main elements to this Part. First, the power of the courts to suspend all or part of a sentence is put on a statutory basis. Section 99 deals with this issue. A court that suspends a sentence may attach conditions requiring the person to be of good behaviour and to keep the peace. There is provision in section 99(11) that any suspended sentence which is reactivated by reference to breach of the conditions must be served in addition to any subsequent offence which triggers the reactivation of the suspended sentence.
The second element arises in section 100. It deals with cases where the court intended to impose a fine and a custodial sentence. Under section 100 the courts will be able to impose a fine but may defer any custodial sentence on condition that the person keeps the peace and is of good behaviour. That is a way to allow local district judges punish somebody now, in other words, to deal with people in cases where the district judge is tempted to send them to jail directly to teach them a lesson. This allows a monetary fine to be imposed immediately and the question of a custodial sentence to be put back. Additional conditions may be attached requiring the person to deal with certain underlying issues such as drug or alcohol abuse. In this way, the new powers give the person an incentive to address the underlying cause of the offending.
The third feature in regard to sentencing arises in section 101. That section introduces new orders, which are restriction on movement orders. The title is self-explanatory. The orders will arise as an option where the court is proposing a sentence of three months or more imprisonment for an offence listed in Schedule 3 to the Bill. They are mainly public order and assault-type cases. The order may impose certain conditions about, for example, being, or as the case may be, not being in a specified place at specified times.
The final element relates to electronic monitoring. The Bill provides that compliance with the terms of a restriction on movement order may be monitored electronically. This is an enabling provision. I am not in a position to immediately introduce electronic tagging at this stage. I may establish a pilot project but I stress that I have not even prepared the plans for that at this point.
Parts 11 and 13 address issues relating to anti-social behaviour. Part 11 deals with such behaviour by adults, that is persons over 18. Part 13 deals with the arrangements for children between 12 and 18 years. The Part dealing with children inserts a new Part 12A into the Children Act 2001 and incorporates many aspects of the arrangements already in place under that Act, such as giving jurisdiction to the Children Court in regard to certain matters and the possibility of arranging for the child to be included in the very successful diversion programme.
All of us are aware of the increasing distress caused by anti-social behaviour. It is an issue that public representatives are constantly asked to deal with. I know it is a real source of anxiety and stress for many people, often elderly or vulnerable people. The offending activity is often of a relatively low level but is persistent and very distressing. I was anxious to find a way to respond to this phenomenon but in doing so I was looking for a response that was proportionate. I believe my proposals achieve that balance. In drawing up our proposals we took account of the experience in the United Kingdom with what are termed ASBOs. In particular, I was anxious to avoid some of the apparent excesses one reads about in that jurisdiction.
The same definition of anti-social behaviour is used in both Parts. In both cases, the process begins with a warning to desist, issued by a garda. In the case of adults, failure to observe that warning can result in an application to the District Court for an order. The order is obtained in a civil law procedure but breach of an order once it is made can give rise, as in the case of an injunction, to a criminal offence.
In the case of children, the warning will be followed by a meeting convened by the superintendent. The child and parents will be required to attend. The meeting may result in a "good behaviour contract" being drawn up or in the child being placed on the diversion programme. The superintendent may apply to the Children Court for an order if he or she is of the view that other options are unsuitable or if the good behaviour contract has been tried but has been breached.
I have given a brief outline of the procedures so that Senators will be assured that these orders are a last resort. They are not a response of first instance. Every effort is made to divert the person from offending behaviour. This is especially so in the case of children. It should also be noted that only a senior garda can apply to the court for an order. It will not be the case that a vengeful garda can unleash these orders on people in a scatter-gun approach. It will require a decision taken at senior level in the Garda Síochána before the court's jurisdiction, and no shortcuts will be taken.
The new arrangements will not interfere with the operation of the criminal law in cases where the behaviour is so serious or the damage so severe as to justify the application of the criminal law. As I mentioned, the new procedures are designed to deal with that lower level of activity which causes so much distress and interferes with normal enjoyment of life and property.
Part 12 amends the Children Act 2001. A recent youth justice review carried out by the Department found that while the Children Act 2001 provides a modern and progressive legislative framework for the development of our juvenile justice system, the structures in place for the delivery of services could be improved upon. Arising from the review, the Government agreed a number of major reforms including the establishment of the Irish youth justice service to provide leadership and bring a coherent and co-ordinated approach to the delivery of services to young offenders. The new service will assume responsibility for children's detention, community sanctions, restorative justice and the implementation of the outstanding provisions of the Children Act 2001. The amendments in this Part are necessary to give effect to these proposals. The Minister of State, Deputy Brian Lenihan, now has direct political responsibility for all of that area. He now sits at Cabinet and is the political driver of this agenda.
The chief purpose of the amendments is to transfer responsibility for the children detention schools from the Department of Education and Science to the Department of Justice, Equality and Law Reform, under which the Irish youth justice service is located. This will bring the children detention schools under the same service that will develop the youth justice strategy, manage the delivery and development of non-custodial sanctions and co-ordinate youth justice services at both national and local levels.
The Department of Justice, Equality and Law Reform, through the Irish youth justice service, will then have responsibility for the detention of all children up to the age of 18. These amendments also remove references to "children detention centres" from the Act, effectively extending the children detention school model to all children up to 18 years of age. Under the new structures no child will be detained within the prison system.
In addition to these amendments, I have also taken the opportunity to introduce a number of other amendments to the Children Act 2001, some consequential on the structural changes, others intended to improve or supplement existing services provided for in the Act. I propose to introduce a new power under which the court can request the attendance in court of a representative of the Health Service Executive where the court considers that could be of assistance. I am also proposing amendments to sentencing provisions, amendments to the inspection and investigative provisions, changes to the functions and composition of the Special Residential Services Board, and amendments which will enable the age of criminal responsibility to be raised to 12 years for almost all offences three months after the enactment of this Bill. The offences that will not have the 12-year limit are murder and rape-type offences because as I have said previously, the public would not accept if, say, two 11 year olds threw a child under a train, that there would be no sanction of any kind and that they would be allowed go back to school the following Monday with a black mark over them.
It is, but that has been changed by provisions of the Children Act which were never commenced.
Part 14 provides for the establishment of the criminal law codification advisory committee. These provisions were introduced into the Bill by way of Committee Stage amendments in the Dáil. Senators may recall that the programme for Government included a commitment to codify all substantive criminal law into a single crimes Act. As a first stage in meeting that commitment, I established an expert group on the codification of the criminal law in January 2003. The report of the expert group, which is entitled Codifying the Criminal Law, was published in November 2004. In its report the expert group outlined the overall structure and style of a criminal code and recommended that codification be undertaken on a phased basis, using the various tools of restatement, consolidation and law reform in developing and maintaining the code.
Among the recommendations of the expert group was a recommendation that a new statutory committee be established to oversee the codification project. This was to emphasise the need for a long-term departmental commitment to the codification project. The Government accepted this recommendation and I decided to make provision in this Bill for the establishment of the new committee which is to be called the criminal law codification advisory committee. Part 14 sets out the details as they relate to the committee's functions, membership, conditions of office, meetings, programme of work, funding and its annual reports. I am currently giving consideration to the question of the membership of the advisory committee which, in keeping with the recommendations of the expert group will be drawn from key centres of criminal law expertise within the legal community.
Part 15 contains sections 176 to 196, inclusive. It introduces several miscellaneous changes, many of which are of a technical nature. I will mention four of the most significant ones. Members will have a full guide to them in the memorandum which I have circulated. Section 176, on the reckless endangerment of children, arises from a recommendation in the Ferns Report and I was pleased to accept the Labour Party's proposal when it was tabled on Committee Stage in the Dáil. I know this House shares my conviction that every possible step must be taken to ensure the type of abuse documented in the Ferns Report is never repeated and I believe this new provision makes a significant contribution to ensuring we have a legal framework to protect children at risk. The new section provides that where a person in authority, intentionally or recklessly, fails to take steps to protect a child from harm or abuse, that person is guilty of an offence. The offence carries a penalty of up to ten years imprisonment. People who know that a child is being abused and are in a position to do something about it now have a direct legal duty to intervene to save the child. One cannot turn one's eyes away and say that it is somebody else's business or that it is too embarrassing to deal with.
Section 180 addresses a difficulty arising from the Supreme Court judgment in the Dylan Creaven case. The court held that a District Court judge could not exercise his or her jurisdiction to issue a search warrant while he or she was physically outside his or her district. Under the new provision, a District Court judge may exercise his or her jurisdiction to issue a search warrant regardless of whether he or she is outside the district for which he or she is responsible under the law.
Section 184 amends the Criminal Justice (Public Order) Act 1994 by introducing a system of fixed charges for certain public order offences. Under the new provision, a garda may issue a notice to a person in respect of two offences under the 1994 Act, disorderly conduct in a public place and being intoxicated in a public place. The notice will specify the details of the offence and will indicate that if the charge is paid within a specified time, no further proceedings will arise. In particular, there will be no court proceedings. This new option will allow greater flexibility to gardaí in dealing with public order offences. They can ask an offender for his or her name and address. He or she will get a letter within a short period stating that there will be no proceedings if the penalty prescribed in the notice is paid. If not, he or she can have a court hearing. It is one way to allow the Garda to get on with enforcing the law and to ensure that the public order Act works without knowing in all cases that every infringement of the law ends up in a court hearing, which is so consuming of time and resources. It will also free up court time. A person who pays the charge does not acquire a conviction or a criminal record. However, persons who wish to contest the charge may do so by allowing the matter to go to court. I believe this is a useful innovation.
Finally, I want to mention section 185. It extends the provisions in section 19 of the Criminal Justice (Public Order) Act 1994 to protect those, such a firemen and ambulance crews, engaged in providing emergency services and those working in the accident and emergency departments of hospitals. New offences of assaulting or impeding such staff are created. The offence of assault carries a penalty of up to seven years imprisonment. I am satisfied this measure will gain widespread support as it aims to protect those on whom we rely most when our need is greatest. Recently we have seen people who have been badly maimed in these attacks. Those, of course, are much more serious offences and carry sentences of up to life imprisonment for disfiguring a person. Two unfortunate firemen have recently been attacked. Any assault on these emergency service workers who are working for the safety of the community, is now a serious offence and carries a seven-year penalty. Anybody who wants to behave in this loutish and cowardly way should now know that the Oireachtas is putting into law protective measures to deal with this issue.
To conclude, this large and complex Bill is a reflection of the priority that both the Government and I attach to the fight against crime. It amends and updates procedures in several areas. It is not the last word on the matter. We are already preparing yet another Bill in the Department, the criminal law (miscellaneous provisions) Bill. If anybody has any bright ideas that he or she wants to put forward for consideration, another train is due to leave the station in the autumn.
This Bill will amend and update procedures in several areas. It will provide the law enforcement agencies with up-to-date and effective powers. I am confident that the measures in the Bill are quite balanced and reasonable and will meet with general public support. It is with some considerable pleasure that I commend the Bill to the House.
I welcome the Minister to the House to debate this very important legislation. Since this is the first time the House has seen the Criminal Justice Bill 2004, it is worth registering, at the outset, our dissatisfaction with the manner in which this legislation has been progressed. Despite the fact that the Bill has been on the Order Paper of the Dáil for over two years, the vast majority of it was hurriedly drafted, at best, since September of last year. In effect, this Bill was brought before the Select Committee on Justice, Equality, Defence and Women's Rights last September before it had even been drafted properly. I will, however, give the Minister credit where it is due in that he ultimately allowed the Bill extensive discussion at the committee, after some pressure.
There is no doubt that an updated piece of criminal justice legislation is needed. There is no question that Fine Gael will support its passing and welcome many of the proposals contained therein. However, I note next week's schedule with dismay. Obviously, the pressure is such that we will push the Bill through before the summer recess. This is not conducive to considered debate or assessment of the issues. At the select committee hearing last September, the Minister said that he did not believe he would pass two pieces of criminal justice legislation, so instead he has lumped various pieces of policy into one Bill, with the result that it does neither the one nor the other properly. The Bill has everything in it from firearms to explosives and anti-social behaviour orders to electronic tagging — for convicted persons, I add. The Minister seems to have been unaware exactly what he was proposing when, last month, Fine Gael called for the right of courts to electronically tag persons granted bail. He told us that he had included this in the Bill.
Fine Gael has already made its position clear. There should be separate Bills to deal with the serious issues of firearms, particularly those held illegally and used to commit increasingly vicious crimes, and explosives, which cannot be treated satisfactorily in an appended section of a Bill designed to deal with almost everything else.
There are nonetheless elements of the Bill that are to be welcomed. At a time when crime in this country, irrespective of how the Minister chooses to assess it, is at unprecedentedly high levels, it is vital that we as legislators take steps to tackle the issues that affect so many citizens in an intimate and intrusive way. Gun crime, shooting and killing, much of it drug-related, has reached epidemic proportions and it is a sad and terrible indictment of this Government, that ten years after the horrific murder of Veronica Guerin, the Minister must admit that this type of crime is even worse than it was then. Decent people are terrified in their homes and communities are being ravaged by the scourge of drugs and all types of crime. Ordinary people feel that the justice system is tilted in favour of the criminals rather than the victims and that many sentences handed down for serious crime are far too lenient. This is the feedback I am getting from many people. These are the facts whether we like them or not, which is why I welcome increased penalties for serious offences relating to firearms, violent crime and so on.
I agree with the Minister that we should have drug-free prisons. Some people believe that is impossible, but in tandem with drug-free prisons, we should put proper rehabilitation programmes in place for imprisoned drug users. I agree with the sentences and the new offences created for bringing drugs into prisons. The Minister also spoke about drugs and mandatory minimum sentencing, which seems to be going from 5% to20%. It should be much higher and that is what we wished for when legislation was introduced. The punishment must fit the crime. That is what people want and we should be aiming for that.
The Minister seems to have retreated from his position on the Garda granting warrants, but it is a pity he refused to accept some of Deputy Jim O'Keeffe's practical amendments on Committee Stage in the Dáil relating to the expiration and granting of search warrants. I assure him that they will be up for discussion again in this House.
I am also concerned that the Minister has not exercised care with his proposals for arrest without warrant. We must be extremely careful about proposals to restrict the liberty of individuals, and only in very specific and limited circumstances should the Garda Síochána be free to arrest a person without a warrant. This is a provision that requires close examination and careful balancing of the need to give the Garda the powers needed to enforce the law and bring criminals to justice on the one hand, with the rights of the individual and the presumption of innocence on the other hand.
The Human Rights Commission has expressed concerns about provisions included in this Bill to amend the Criminal Justice (Forensic Evidence) Act 1990, to allow the Garda to take a swab from any part of the body. Specifically, the commission raises another constitutional issue, namely, the right to bodily integrity. I am aware that the courts have yet to explore this issue fully, but I raise it now because it is something that we must closely examine on Committee Stage, before enacting something that is either unconstitutional or which interferes unduly with an individual's right to bodily integrity.
Part 4, which contains sections 15 to 20 and which deals with the admissibility of certain witness statements, is a vital Part of this Bill. Its role in the courts is that a previous statement made to the Garda cannot be admitted in evidence as proof of any fact contained in it. The fact that a witness may have previously said something different can be used to attack his or her credibility, but the early statement cannot constitute proof of those assertions. Aspects of this rule have been changed and I welcome the thrust of these, which should address some of the problems we have seen in several high profile cases in the recent past. The Minister has also made provision for a change in the limitation period within which certain prosecutions may be brought. I am concerned that there has been some inconsistency on his part and I call on him to give a more complete explanation of the rationale behind the proposals in section 177.
I have concerns about the Government's U-turn in section 121, which deals with the minimum age of criminal responsibility. The Children Act, a progressive piece of legislation, provided for an age of 12. Having failed to bring that section of the Children Act into force, the Minister now seeks to amend it by reducing that to ten years. Although this point certainly merits more discussion, the Minister might better use his time bringing existing legislation into force rather than trying to unilaterally rewrite it. Either way, I am looking forward to the discussion on these issues on Committee Stage.
The Bill could have been more practical in its approach to sentencing. Fine Gael has put forward several proposals to deal with sentencing and I will be examining the possibility of making amendments to implement these in this House next week. The codification of the criminal law is very progressive in this Bill. The Minister clearly wants to push this through, irrespective of the enormity of the task at hand. While this Bill establishes a committee, I can only see this process taking place over a long number of years.
I am looking forward to the debate on Committee Stage and I welcome broadly the increased powers and provisions that this Bill will introduce. This is an enormous volume of legislation which will be a defining statute.
The issue of attacks on emergency services personnel such as firemen has been raised. All right-thinking people would condemn these attacks and would support increased penalties for those who attack such personnel. Judges often give concurrent sentences rather than consecutive sentences. This should also be examined.
Making law is one thing but enforcement is the key. Granting the Garda and customs officials proper resources to do their work will be the true test of this Government. At the moment we have much law but very little order. This must change, but I am sceptical about the Minister's ability to deliver this change. However, some of the provisions in this Bill are very welcome.
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.
I welcome the Minister to the House. I am relieved he chose not to make his speech in Irish, as I understand he did in the other House. I am not sure he spoke in Irish because of his love of the language or from a desire to wrong-foot his opponents. He certainly gave a bravura performance, as is to be expected from him.
It is important that time is set aside in this House to review this Bill. I take seriously the views of the Irish Human Rights Commission when it sets out the approach we, as legislators, should take on this kind of legislation. The commission advises "all legislative proposals to increase the powers of the Garda Síochána should be subject to careful scrutiny in order to ensure that the correct balance is struck between, on the one hand, the rights of everyone in society to have a police service capable of effectively detecting and prosecuting crime and, on the other hand, the rights of the individual to the enjoyment of the full range of his or her human rights and freedoms". That is something this House can do.
I tabled a number of amendments which were suggested to me by the Irish Council for Civil Liberties, a very fine body. The Minister may be able to demonstrate that my ideas are misguided or he may be induced to accept some of them. Areas of contention include ASBOs, the proposal that it will no longer be necessary to have consent before taking swabs and the ability of a Garda superintendent to grant search warrants.
I am glad to hear that. The Minister's decision was presumably the result of amendments in the other House, which demonstrates that he is taking advice on board. I was concerned that recourse to the courts would not be required.
I strongly support the Minister on the issue of protecting firemen — I do not know if any firewomen are employed — and ambulance staff.
Although attacks on the fire services are a new phenomenon, they happen regularly. Members of the fire and ambulance services are being savagely attacked. Mark Hogan, a fireman in his 20s with the Dublin Fire Brigade, was head butted on Aston Quay and a series of attacks took place in Cork, including one in which a crew member was hit on the headwith a bottle. The chairman of the National Firefighters Committee expressed disappointment that a recent review of health and safety issues for firefighters did not prioritise attacks on them as a significant concern. Are members of the fire services provided similar compensation to that available to the Garda? If not, will the Minister consider providing for such compensation? These people are saving lives and preventing homes from being burnt to the ground. We should consider some form of compensation for them when they are injured. I am glad to see the Minister nod his head and might be inspired to introduce an amendment on the issue.
The Minister noted that video recording of interviews has become a virtually universal practice in Garda stations. I welcome that because, while I am aware of instances in which crooks have shown the tapes in pubs, video recording is an important protection not only for the accused but also for the police. As regards powers to preserve a crime scene, I would have thought this provision to be a pretty obvious one.
Intimate samples, for which consent is required, have been redefined to exclude hair and mouth swabs. One should be very careful here because this redefinition represents an attack on bodily integrity. If we are to go down that route, we need to video the process so that allegations cannot be made that samples were violently or forcibly taken and that an alleged resistance to the taking of a swab cannot be given as an excuse for battering the hell out of somebody in a prison cell. A question also arises with regard to who will take the swab or hair sample. Will gardaí be trained to do so or will it be the responsibility of medically-qualified personnel? Given that the Minister may make regulations on this matter, this is one of those celebrated cases in which we should move from "may" to "shall".
The Minister was very persuasive on the issue of reopening cases. It is obscene to think a murderer could boast about his or her crime but never be held accountable because of the principle of double jeopardy.
Something has to be done about firearms. The amnesty is welcome in that respect but we should realise that society has changed. Contract killings, which we used to see in gangster films in the Carlton on Saturday afternoons, now take place in this country. We even know that the price of a life in Dublin is between €3,000 and €5,000. If the Minister is prepared to address this issue by means of legislation, we must help him do so.
I have doubts on the issue of fireworks, however, because I am not sure of the accuracy of the survey commissioned by the Minister. One has only to consider the number of people who buy fireworks or look at the skyline of Dublin whenever an opportunity arises to let off fireworks. On such evenings, I climb to my roof and watch them bursting all over the city. It is a matter for clear regulation rather than an outright ban. In the global context the only way to solve the importation of drugs is legalisation. The only way people will stop smuggling is if the financial incentive is destroyed but this cannot be done in one country alone. It must be done in a carefully monitored way.
Will the drugs register be a real register? The Dáil debated the nature of the sex offenders register and the drugs register should be a real register rather than something created for cosmetic purposes.
I am concerned about ASBOs. We read a story in today's newspaper of two teenage girls biting a garda so severely that he was hospitalised. How does one deal with such things? A lower level of proof is required for ASBOs than in a court case and if young offenders break the conditions of the order they may be sent to jail. In this way, one can be sent to jail on a lower level of proof.
The idea of meetings between the family and gardaí and drawing up a good behaviour contract is an excellent, constructive idea. Involving families is the way forward.
A thoughtful speech by Deputy Carey in the Dáil, which I read with real interest, considered the increase in custodial sentences. This has increased from 10% to 20% and, if certain cases are included, 30%. There are some provisions for education but funds are not being allocated. These kids are being set up for failure. The socially constructive work to which the Minister refers should be done and education should be increased. The Central Model School, Marlborough Place, has a wonderful breaking the cycle intervention. Larkin community college teaches virtually all these kids and some continue their education in university. Investment is necessary in this case.
I compliment the Minister for his recent appearance at Outhouse. It was an important, historic situation. A senior Cabinet Minister, half of the head honchos of the Garda Síochána and many members of the media attended. At a time of increasing violence against the gay community, the Garda Síochána reached out to the gay community and issued a leaflet on rights. The Garda Síochána will be available one evening per fortnight to discuss these situations, an initiative that will save lives.
I was sad that the media trivialised the entire launch by focussing on a spurious story about a row between the Tánaiste and the Minister for Justice, Equality and Law Reform. The media was only concerned with this story and interviewed the Minister on the doors of Outhouse. The media displayed a lack of responsibility by covering that silly season story rather than focussing on an issue that would affect the welfare of people in this city.
I congratulate the Minister and his officials on a complex Bill. We have criticised the Minister for the past six months because the Bill has been growing like Topsy. Every time we looked around another ten pages had been added. It is more like a finance Bill but I hope it achieves what it set out to do. Though I have not read the Bill I have followed the debate in the Dáil and read parts of the original Bill.
The basis of our system of justice is that it is better that 99 guilty people go free than one innocent person is found guilty. The system is biased in favour of the criminal, an extraordinary irritant. Legislators must find the balance while meeting the needs of people who suffer in communities destroyed by criminal gangs.
Six months ago, in a high profile case, a suspect was questioned and detained for a certain number of hours. He was brought to the District Court to extend the period of detention. Lawyers continued the case hearing so that the original period of detention expired during the hearing for the extension. The law was interpreted to mean that the person could not be held and consequently the man walked free, even though he was re-arrested later. It was a classic example of a legal technicality being used.
I drafted a Bill, No. 11 on today's Order Paper, entitled an Act to amend the Offences Against the State Act 1939. That sought to correct the anomaly outlined in this example. I wrote to the Minister, who agreed with the points in the Bill. He requested that I hold back with this Bill because he hoped to deal with the matter in the Criminal Justice Bill. It gives me great pleasure to recognise section 187 of the Bill. The section states "it shall be deemed not to expire until the determination of the application". I express my gratitude to the Minister who has always been available to listen to arguments in the House. This matter addresses the needs of people and closes off a technicality that gave no protection to innocent people and was abused to allow people to play ducks and drakes with the Garda Síochána. The matter has been dealt with in exactly the manner I requested.
Some 50% of crime is drug related. The question of legalisation and criminalisation is often debated but there is a middle position where a substance can be decriminalised without being legalised. It could be a regulated or controlled substance. Before I was elected to this House, I organised events in Strasbourg and Paris for the European Parliament that examined the European drugs problem. I am now out of touch. I closely examined a programme in Wirral, between Chester and Liverpool. Heroin was made available in a controlled way to a group of heroin addicts. The addicts returned to the workforce under medical supervision and continued to live a satisfactory life. When the experiment was stopped the addicts returned to criminal activities within six months. The programme was so successful that work colleagues were not aware the addicts were taking part in the programme.
I have an advertisement from a well-known drugs company in my office. It advertises heroin as the new cure for influenza. It serves to remind me of how we consider these matters. Everyone would recognise the name of the company, which places large advertisements in The Economist on a regular basis. It is no reflection on the company; that was the thinking of the time.
It might sound amazing but every time I have discussed this issue with drug addicts, they have said that the addiction to tobacco and nicotine is far more difficult to kick than the addiction to heroin. Every former addict I have met has said it. In other words, they felt that methadone programmes and so forth actually work. Is there a way of providing controlled access to some of these illegal substances so they can be decriminalised in the sense of taking them off the streets? The only reason it is causing a problem is the money involved.
The other issue on which the Minister might respond is the imposition of mandatory sentences. Before the Minister was appointed Minister for Justice, Equality and Law Reform, we passed legislation providing for a mandatory ten-year sentence for certain drugs offences. The courts have taken a different view and have not felt mandated to impose a sentence of ten years. I must admit I agreed with many of the court decisions I have examined. The judges made a judgment that it did not apply in those cases. However, sometimes one sees cases where the sentences are too light. When there is no doubt and one can see the level of suffering and devastation for families and communities, it is not enough.
Will the Minister explain the position with mandatory sentencing? Are we entitled to provide for it at all? Is there a constitutional question as to whether we can tell judges what they must do? In some ways, there is a certain symmetry with what happened in the Mr. A. case where the fact that something was proved meant the courts had to go another way without listening to evidence. It is not the same issue but there is a relativity. Is there a constitutional issue with mandatory sentences?
I wish the legislation well. There is so much in it there will probably be problems with it, although I cannot find them. The Bill is too big for me; there is too much in it. However, it had to be brought forward. It certainly meets the needs of right wingers, who are calling for more of this and that and less of the other. I support the legislation in the hope that it will work.
Preserving and promoting justice for Irish citizens is a core objective of my party. In Government, the party has striven at every opportunity to ensure that the Ireland of 2006 is as safe as possible. Today's legislation is a significant part of that process. Certain Members have expressed dissatisfaction with the delay in bringing forward this legislation but when one considers the inclusive manner adopted by the Minister and the Government in preparing it, from the day it announced its intention to do so, we see in the legislation before us the benefits and rewards of that work.
We are working to make Ireland safe. Although Ireland is a comparatively safe place by any reasonable assessment, that fact might be lost in some of contributions by Members today. Reference is often made to the everyday practices and habits we took for granted years ago, such as the key left in the door, the window left open, the keys left in the car and so forth. People wondered why anybody would need a house alarm. However, these norms have disappeared. This is the case everywhere as society has moved on.
Two points must be made. The first is that although our society has changed and must change, it is still comparatively safe. Second, we must recognise that there exists in society elements and forces whose objectives and modus operandi threaten the property and well-being of decent citizens. The political game we play consists of a manipulation of these two facts. That is accepted, if slightly odd. The Progressive Democrats prefer a factual and constructive debate. The first of the two points will be challenged by the Opposition while the second will be amplified.
People in this country are entitled to view Ireland as comparatively safe. Despite our high speed and high tech societal changes and what those changes bring in terms of challenges, the level of headline crime in Ireland in 2005 was lower than it was in 2002. We can argue until 2022, and I see it starting already, about the effects of societal change but even a cursory glance at population numbers tells a clear story. A total of 3.5 million people lived in this country in 1995; 4.1 million live here today. That is a total of 600,000 extra people but the incidence of crime per 1,000 of the population dropped from 29 to 24.6 over that period. By any fair assessment against other Western democracies, Ireland's crime rate is low.
Political games. Tragedy is the other side of crime. Crime is still a problem but in modern society the viciousness and seriousness of the offences has increased. Just as what we considered normal 20 years ago in terms of our security habits has been transformed so, too, has what constitutes a serious incident.
During a debate in this House in 1971, the television programme "Garda Patrol" was discussed. Quite correctly it was stated that it was a good and valuable programme. However, consider the matters that were discussed on that television programme — individual stolen items, missing pieces of machinery and so forth — and compare them with the content of the contemporary RTE programme, "Crimecall", which deals with murder, rape, drug trafficking and gangland slayings. When crime is a problem today, it is more often because the criminal activity is of a severity that was unconscionable 25 years ago. That is not to say we did not have abominations then, particularly from paramilitaries. However, we must get real about the society in which we live. To do otherwise inspires only hand-wringing and little valuable action.
The Progressive Democrats Party is working to move from hand-wringing and posturing to valuable problem solving. The Minister has set in train the most ambitious and comprehensive process of improvement and reform of our justice system since the State was in its infancy. He is working on bringing the strength of the Garda to 14,000 this year and increasing police resources to a spend of €3.5 billion. Last April, an extra €10 million was made available for special operations. He is championing truly commendable legislative and financial initiatives. Members should be mindful that the Government and the Minister provide the resources but the Commissioner uses these to deploy the police service in the most visible, flexible and effective manner he considers fit to respond to criminal activity and to prevent crime. The Government is providing the resources to tackle the serious crime challenge in society.
The Minister has outlined the provisions of this legislation. Much has been written and said about the Bill but it should be remembered that it results from the report of an expert group appointed to consider changes in the criminal law, as recommended in the report of a steering group on the efficiency and effectiveness of the Garda Síochána. This legislation does not come from thin air. It presents new anti-crime measures in a comprehensive manner. Not even the Opposition would object to the aims of the legislation, to enhance the powers of our generally superb Garda Síochána to investigate and prosecute offences and improve the operation of the criminal justice system.
The legislation covers detention, witness statements, firearms control, organised crime, drug trafficking, tagging, anti-social behaviour and sentencing. These are issues of concern to the public, and the Government and the Minister are demonstrating their determination, shared by the Progressive Democrats, to do everything possible and practical to ensure the criminal justice system fully meets the challenges posed to our society by criminality. Today and in future those challenges will continue and Governments and Ministers for Justice, Equality and Law Reform must respond to them as society and norms change.
The Criminal Justice Bill shows the determination of the Government to address the difficult issues surrounding crime prevention, detection and prosecution. Importantly, the Minister, to his credit, has worked to ensure this is achieved while, simultaneously, safeguarding the rights of the individual, a difficult task where striking a balance would challenge anyone. The phrase "tough on crime" is bandied about on all sides and I do not question anyone's desire to be tough on crime. Politicians play politics and being tough on crime or, more accurately, being the toughest on crime, is part of that game. In a modern Western society, it is easier to portray oneself as the toughest on crime than it is to get to grips with the issues where action must be taken. It is a B-rate message used in bus shelters throughout the world, perhaps even in Kenya, but it is harder still to take the difficult and necessary steps while maintaining equal focus on the rights of the individual.
The Minister for Justice, Equality and Law Reform and the Government have succeeded in this difficult task and today's legislation is evidence of that. I commend them for that and welcome the Bill to the House. I look forward to elaborating on sections addressing organised crime, ASBOs and firearms on Committee Stage.
I welcome the Minister of State to the House to deal with this important Bill, for which we on this side of the House have waited a long time.
It is regrettable the Bill has taken this long but I congratulate the Minister and his officials on the work they have done preparing the legislation. I agree with many of its provisions and I hope they will make a difference to our society.
It is important that legislation should be updated regularly to reflect what is happening on the ground, the views of the public and changes in society. Senator Minihan stated crime has reduced in comparison with a number of years ago but that is not the case. The Minister stated recently there is no great difference between crime levels today and ten years ago, which contradicts the Senator's assertion. Crime levels have increased and criminals are using more sophisticated methods. Legislation, therefore, needs to be amended and the Garda needs to be resourced to tackle crime. Many provisions in the Bill reflect that need.
Gangland crime has increased significantly and the State's inability to tackle such crime is a serious concern. I welcome the measures proposed to address gangland crime, particularly those relating to how the courts and the Garda operate. Drug trafficking is a serious problem and it results in significant crime, which has affected what is happening on our streets and the safety of ordinary people. People do not feel as safe today on the street or in their homes as they did ten years ago. Ireland is a richer nation and our population is better educated but everybody feels less safe than in the past. However, it was not always good in years gone by. I refer, in particular, to the protection of young people. Recent investigations highlight how badly children were let down, particularly vulnerable children who were placed in institutions. However, this should no longer be the case thanks to this legislation. If we cannot look after our children, nothing else will work.
I am alarmed by the increase in the number of murders. While gangland murders are a serious concern, many women have been murdered by their spouses or partners in recent years. Additional legislation will not deter such crime and, therefore, other aspects of societal behaviour must be examined to ascertain where we are falling down and why we do not place the same value on life and property as we did 30 years ago. Deterrents have an impact and if legislation is enforced, it will act as a deterrent and will provide security and peace of mind for people. Unfortunately, people have lost faith in the system. It is worrying that many people do not respect authority figures such as gardaí, teachers and so on. Members of the emergency services, for example, were brutally attacked recently. That is unacceptable and I welcome the proposals to come down heavily on those who do not respect professionals working on behalf of the public. Anybody who does not have respect for a member of the fire service, ambulance service or hospital staff should be dealt with harshly.
Enforcement is a priority. We can introduce all the laws in the world but if they cannot be enforced because of a lack of resources or equipment, they are worthless and that is a problem. Criminals gave the two fingers to the public and the Judiciary when they walked free from court because their cases collapsed. Written statements recanted by witnesses in court will be admissible in evidence under the legislation. That is the right way to go, as this provision works well in other jurisdictions. That should restore confidence in the system.
The public is also concerned about lenient sentences for serious crimes. Under the legislation, mandatory sentencing for serious crimes will be introduced and it must be ensured that such sentencing is recognised by the Judiciary and enforced. This is also necessary to restore confidence in our system.
The Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights debated this legislation and, in particular, the issue of putting the rights of the victim before the rights of the criminal, which has been addressed the legislation. Victims have been ignored too often, particularly in regard to gangland crimes. Victims and their families are intimidated by the defendant while he or she is still on the loose before the case is heard or, sometimes, while they are travelling to the court. Moreover, victims coming before the court should be protected from being obliged to brush shoulder to shoulder with the perpetrator. These issues pertaining to the courts system must be addressed.
While I have much to say, I recognise that many issues can be addressed when dealing with the amendments on Committee Stage. I welcome the manner in which the Bill deals with anti-social behaviour. However, I again stress that if the Garda lacks sufficient resources to enable gardaí to spend time dealing with misbehaving young people, more gardaí will be required. For instance, a young person who fails to give his or her correct name and address will take up much Garda time in research. I welcome the fact that it will be an offence under the provisions of this Bill for young people to fail to give their correct name. In practice however, when one considers the amount of time which any garda will be obliged to put in to ensure that the correct name and address are recorded, the issue of resourcing will be crucial.
I welcome many aspects of this Bill. While I had much to say on it, I understand the time restraints under which the House is operating today and I look forward to the Bill's Committee Stage debate.
I welcome the Bill and welcome the Minister of State and his officials to the House. The Minister, who was in the Chamber earlier, is someone who finds himself in the wars quite frequently. However, regardless of what one's views of his wider political role may be, we are fortunate to have an effective, capable and energetic Minister for Justice, Equality and Law Reform. I have full confidence in him in that capacity, and I believe this is also true of the great majority of the members of my parliamentary party.
Any Minister for Justice, Equality and Law Reform has, in some ways, the Sisyphean task of rolling the stone up the hill, only for it to roll back down again. However, American experience has shown that it is possible to achieve greatly reduced crime rates. Members should neither understate nor exaggerate Irish crime levels. Some ten or 12 years ago, before the murder of Veronica Guerin, and particularly in what one might call liberal, or left-leaning circles, there was a fashion to suggest that the incidence of crime was vastly overstated and that far more important problems existed, mainly of a social character. Equally, I deprecate wild overstatement and exaggeration. While this mainly occurs in the media, sometimes it happens in the Oireachtas. It takes the form of headlines such as "Country in State of Anarchy", which is far from the truth.
All Members know that considerable regional and social variations exist as far as the incidence of crime is concerned. In many areas, while the main problems are social disorder, drugs and vandalism, thankfully there is relatively little of what one might call serious organised crime. Obviously, not all the solutions lie within the remit of the Minister for Justice, Equality and Law Reform and social measures are needed to address deprivation. Moreover, civic education can play an important role in enabling people to see more clearly the futility of engaging in a life of crime and of spending large parts of the best years of their life incarcerated.
When one considers past debates on this issue, I was glad to note the Minister's statement to the effect that 90% of interviews are now videotaped. This greatly reduces the chances of abuse, or of allegations of abuse, during interrogation. The Minister also referred to advances in respect of DNA sampling. As I have a daughter who is involved in genetics, I have a certain interest in the subject. Such advances have certainly enabled the solving of many crimes, especially murder, which could not have been solved in the past. Moreover, they have enabled cases to be reopened.
I welcome the provisions in respect of witness statements which are contradictory or withdrawn. There was a well known case, pertaining to the murder of Detective Garda McCabe, in which a key witness retracted his testimony. With proper safeguards, this will constitute an important advance in preventing a court from being left helpless, but instead being able to come to some judgment on the matter.
The Minister is right to stiffen the penalties for firearms offences. There are far too many guns around and people must be made aware that being found in possession of a firearm for the purposes of committing a crime or threatening people will be dealt with severely. The amnesty offered is of a limited and qualified character and will not absolve anyone of crimes which have already been committed.
I was obliged to smile a little when the Minister, in an unscripted comment, referred to how minimum mandatory sentences in respect of drugs cases were being applied in 20% of cases at present. There is something odd about mandatory sentences which are only applied by the courts in one case out of five. The courts should apply the law, and discretion, which must be provided for, should be used in exceptional cases. However, it is difficult to define four out of five cases as being exceptional. It suggests there is considerable resistance within the Judiciary in this regard. However, although the Judiciary is independent in its exercise of its functions, it is not independent of the law. Its job is to apply the law, regardless of whether judges agree with it.
I refer to the detention of children. Again, there has been a debate between what one might call liberals on one side and those who are more oriented towards law and order on the other, as to whether children in detention should be the responsibility of the Department of Education and Science, with an accent on remedial work, or of the Department of Justice, Equality and Law Reform. However, educators and teachers properly point out that it is not their responsibility to keep people in custody. Hence, the decision is a pragmatic one.
There has been much controversy in Ireland and in Britain in respect of ASBOs. One frequently hears, particularly from penal reformers, that it is wrong to incarcerate people for less serious offences. If that is the case, one requires a remedial system and ASBOs appear to provide a good solution in this regard. Summary sentences whereby on-the-spot fines are paid apply to road traffic offences. There is no reason these and other measures which reduce costs and bureaucracy should not be extended to certain types of social disorder. Everybody gains through having a more expeditious system.
I have doubts about the provisions on fireworks. We have not solved this problem. Every Hallowe'en fireworks go off all over Dublin and every other city. I am sceptical as to whether it is possible to enforce a ban or penalties on fireworks. In many other countries they are neither banned nor penalised. I accept that public opinion prefers that they are banned as if they were freely and legally available they might be used in uncontrolled situations.
I do not know whether licensing should be introduced. I do not like the existence of bans which are not enforced and are unenforceable. That does not necessarily mean one should have a free-for-all. I do not know what is the precise solution. It requires more thought.
Towards the end of his speech, the Minister discussed penalties for assaults. We would all warmly welcome severe penalties for attacks against firemen and ambulance crews. Such attacks are unconscionable. A similar matter is the throwing of stones or rocks at trains and perhaps at buses. Should the glass break and hit somebody it could cause seriously injury or possibly even kill. I recommend to the Minister that he take a serious view on this and consider penalties. Last week, a rock hit a train in which I travelled. Constant complaints are made about housing estates on the outskirts of Limerick and places such as Carrick-on-Suir through which trains travel. The Minister should address this problem and consult with Iarnród Éireann.
I will concentrate on the topic of anti-social behaviour orders. The Labour Party supports their introduction and that of good behaviour contracts. The idea is modelled on legislation in place in the UK for a number of years. As far as I know, the anti-social behaviour order was first introduced there in 1998. The UK system includes anti-social behaviour contracts, which are similar to good behaviour contracts.
While anti-social behaviour orders have attracted a great deal of negative comment in the UK, a great deal of positive comment has also been made. As a local councillor in south Dublin, my father, along with some of his colleagues and local authority officials, recently visited Manchester where they spoke to local authority members and officials who were extremely enthusiastic about their experience of anti-social behaviour orders.
While researching this matter, I discovered the Home Office conducted a review of the system in 2002. While it may have been biased, the feedback it reported was generally positive. However, teething problems occurred and issues were raised which needed to be addressed. They included the importance of partnership and a multi-agency approach to the implementation of anti-social behaviour orders and anti-social behaviour contracts. Other teething problems included delays in obtaining anti-social behaviour orders in court, and the high expectations of residents being dashed if they did not receive the outcomes for which they had hoped.
Anti-social behaviour orders were introduced in the UK through anti-social behaviour legislation. We should have dealt with it through a separate anti-social behaviour Bill which would have been more comprehensive. Not only should NGOs and bodies such as the Human Rights Commission and the Irish Council for Civil Liberties have been consulted, local authorities and local communities which experience these problems should also have been involved.
It is possible that local authorities deal with anti-social behaviour more than the Garda Síochána does. In terms of how crime is dealt with, anti-social behaviour is a major hidden area. If one closely examined the issue, one might see that local authorities must often come up with solutions alone or in partnership with the Garda Síochána and must, therefore, have expertise in this area. Perhaps in his reply the Minister will answer the question of whether consultation with local authorities took place before the provisions of the Bill were drawn up. If it did not, it should have. A more comprehensive definition of anti-social behaviour could have been drafted if a consultation process had taken place.
We need better statistics on anti-social behaviour. The Central Statistics Office surveys victims of crime and we have statistics from that. However, a great deal of crime involving anti-social behaviour, such as damage to property, goes unreported. At present, because people are not caught for such crime and nothing is done about it, many people feel it is pointless to report it.
I recently had an experience of anti-social behaviour. My garden wall was demolished when a stolen car was driven into it at four o'clock one morning. I was aware of anti-social behaviour and had previously raised the issue in the House, but this brought home to me that victims must pay for the damage. The person has not yet been caught but even if he is, the wall has already been replaced, which was expensive.
The incident also brought home to me the dangers involved. My immediate response was to see whether anyone was injured. The man driving the car quickly scarpered and got into another car against which he was obviously racing. It turned out the car had been stolen. If it had happened during the day when someone was in the garden or walking by, he or she could have been killed. The person involved was obviously reckless about his own safety, the safety of others and the damage he did.
The damage could have been a lot more serious because the car clipped the gas connector outside our garden. Serious harm could have been done to me and my family.
Anti-social behaviour is becoming more prevalent and crime statistics do not present a good picture of what is involved or of its extent. People are victims of anti-social behaviour much more now than in the past and it is causing fear and insecurity. I have sometimes seen reports in the local papers describing stolen cars crashing in certain estates. Nothing is done about it on time and the cars are set on fire and cause damage to the estates. People are living in fear because of this and other forms of anti-social behaviour.
The idea of the anti-social behaviour order is good but we must proceed cautiously and review the process along the way. If possible, the orders should be introduced on a pilot basis because of people's fears and legitimate criticisms of the anti-social behaviour order system that exists in the United Kingdom.
I understand — I am open to correction — that the Garda will have to carry out the procedures concerning the orders. In the United Kingdom, however, the burden is spread between local authorities and the police force. Given the pressures on the Garda and the fact that the system is new to the force, will the orders come on stream here in a substantial way? I understand there is a multi-agency approach to anti-social behaviour contracts in the United Kingdom and that there are teams whose job it is to help people comply with them. This is needed in Ireland.
In a recent discussion on youth justice, I mentioned that Dr. Ursula Kilkelly of UCC carried out a study entitled The Children's Court: A Children's Rights Audit, one of the findings of which states, "It is apparent from this research that the lack of bail support is undermining young people's compliance with bail conditions and failing to help them avoid offending while on bail". Dr. Kilkelly calls for "bail support programmes" and a similar support-based approach needs to be adopted in respect of good behaviour contracts. The supports need to be provided on a multi-agency basis. In restorative justice schemes, such as that introduced in Nenagh, many supports are provided to ensure the individuals concerned comply with the relevant agreement as part of the reparation process.
Anti-social behaviour can have many elements, including family background and the involvement of friends, and therefore supports should be introduced. This is also an issue in the United Kingdom. The Scottish Parliament initiated a consultation process on this issue in 2003 and found that many factors influence anti-social behaviour, including family background, poverty, inequality and poor attendance and performance at school. Consequently, we require not only anti-social behaviour orders to deal with the perpetrators but we also need to tackle the causes of their anti-social behaviour. This may require a multi-agency approach. The issue of family support arises in this regard, particularly in the case of children.
The Scottish Parliament considered parenting orders. In England and Wales, where parenting orders are issued, only 10% of the orders are breached. Parents have a major role to play and much to answer for in respect of their children's anti-social behaviour, and there is therefore a need to address the behaviour of parents. In so doing, supports are required. The Scottish Parliament considered the idea that the issuing of parenting orders should involve the provision of supports for parents. For example, they might require counselling.
Children in my community are involved in anti-social behaviour and the local council sometimes threatens to evict their families as a consequence. In such cases, although the children's behaviour is inexcusable, the families can have terrible problems. I know of children who are orphans because both their parents died as a result of long-term drug addiction. These children do not necessarily get the correct supports from the community, councils and education sector and these supports must therefore be provided. Individuals associated with anti-social behaviour often have many problems, including health problems and drug addiction. Sometimes those who are threatened with eviction are not necessarily those engaging in anti-social behaviour and are not necessarily able to cope with a child who is engaging in it. This needs to be addressed.
An anti-social behaviour Bill should have been introduced to deal with this issue more comprehensively. Perhaps this could be achieved through amending legislation in the future. Local authorities need to be much more involved, as in the United Kingdom where many of the local authorities have set up anti-social behaviour units. Local authorities are often at fault in cases of anti-social behaviour and need to examine their role. For example, if an area is left to fall into decline, the local community can disintegrate, thereby increasing the incidence of anti-social behaviour. All these issues need to be addressed.
A community policing approach to law enforcement is required, in addition to a problem solving approach that involves local communities determining the causes of crime and anti-social behaviour with a view to preventing them. It is not just a question of enforcing the law in the case of those who do commit crimes and engage in anti-social behaviour.
I welcome the Minister of State. This welcome Bill is very comprehensive and tackles some particularly sensitive issues with which we, as public representatives, deal very regularly. Crime, particularly in the Dublin area, involves headline crime, including shootings and major robberies, which are happening more frequently, and also nuisance crime. The latter involves anti-social behaviour, graffiti and car vandalism. Car vandalism was a major issue ten or 15 years ago. Break-ins to cars and thefts of car radios happen regularly but are not reported and are considered to be a nuisance more than anything else. The Bill tackles a number of these issues very comprehensively.
The changes provided for in section 14, which deals with forensics, are welcome in terms of the samples that can be taken and the methods used to take such samples. In the past those methods were used to avoid convictions but this section closes that loophole.
I want to make a plea regarding the State Laboratory, which does excellent work, but I am aware from speaking to some of the staff that they are under serious pressure as a result of the amount of work they must deal with in addition to attending court hearings and so on. This might be the ideal time to increase the resources for the laboratory because any support it is given will pay dividends.
Like Senator Mansergh, I have a query about the section dealing with fireworks. Whenever a festival is held, be it St. Patrick's Day or whatever, we spend thousands of euro shooting tonnes of fireworks into the sky in celebration, yet under this Bill fireworks are illegal. That issue must be re-examined. A solution must be found, whether it involves imposing an age limit in respect of those who can buy them, as we do with the sale of alcohol and cigarettes to minors. An outright ban will not work because it is very difficult to enforce.
I welcome the sections dealing with organised crime. In the north side of Dublin recently we had experience of a number of shootings linked to organised crime and the drugs industry. I welcome also the Minister's suggestion that the use of technology has increased in dealing with crime because criminals are more advanced in technological terms now than was the case until recently. The Garda Síochána deserves support because it does a great deal of work and has some very talented and experienced people in the use of technology.
On the use of European arrest warrants and dealing with international crime, criminals of various nationalities are now living in Dublin. In one area they are confined mainly to Russian and Nigerian criminals who are taking advantage of the system here. Gardaí working in the centre of the city will say that is a major problem for them. These are well-organised gangs of international criminals. They have use of and access to weapons and other technologies that they use to great effect. It is an area that must be examined. While the Bill addresses the problem to some extent, it is one we will have to revisit at some stage in the future.
The link between drugs and guns is obvious to everybody. The information is that every drugs shipment that comes into the country now contains an amount of guns as part of the deal done in drug trafficking. We must examine that issue from an international perspective. These drugs originate in countries like Afghanistan or South America and by the time they come to Dublin and are broken down, part of the deal includes the supply of guns. A recent seizure by gardaí in Swords, north County Dublin, is an indication of the prevalence of the problem. This legislation will deal with that in an effective way.
Part 8 deals with drugs in prisons, which is a serious issue. In Mountjoy Prison in particular it has exercised both staff and concerned groups for a number of years. The treatment of drug addicts while in prison is an important issue yet there is a lack of resources in the area. Treatment and rehabilitation only takes place when a criminal leaves prison. They can be maintained while in prison in terms of their drug habit but drugs do get into prisons on a regular basis. In some cases family members or friends bring them in. There was a suggestion at one stage that staff were involved but it is a problem that must be tackled. The simple solution of putting a net over the exercise area in Mountjoy Prison prevented huge amounts of drugs getting into the prison. Treatment of drug users while in prison and aftercare once they have left are essential. Prisoners who are addicted to drugs will try to maintain their habit in prison and will try to get access to drugs by some means. Groups like Soilse are willing to go into prisons and help treat prisoners. That is something we should examine.
The Minister said he does not have any plans for electronic monitoring but it is an issue we must examine. It can be linked to any measures for restorative justice that might be taken. People who have many convictions and who go in and out of prison on a regular basis, sometimes for petty crime, could be considered for electronic monitoring. It has been tried and tested in other jurisdictions and it is something we should examine.
The problem of nuisance crime has exploded throughout Dublin city recently. The problem is not confined to young children or adults; it crosses all age barriers. I welcome the fact that this legislation deals with adults and children separately in terms of anti-social behaviour orders and warnings.
The treatment of children is a particularly sensitive area. Youth diversion programmes must be supported and invested in because they pay dividends but if they are to become part of the overall anti-social behaviour legislation they must be beefed up to a greater extent. People who run a number of programmes in our area get minimal funding but at the same time they provide a huge service. Young children are referred to them from all the agencies.
This is a comprehensive Bill and I wish it a speedy passage through the House. I have no doubt it will improve the problem of crime throughout the country.
I welcome the Minister of State, Deputy Fahey, to the House. This is an important Bill and its importance is increased by the fact that it is, in effect, two Bills — the original one brought forward in 2004 and the Bill as amended this year on Committee Stage in the Dáil when a raft of amendments were introduced on new topics that were not covered in the original Bill. Both the original Bill and the amendments have been the subject of extended scrutiny before coming to this House. When I went through them I realised the extent of the debate that had taken place in the other House.
I want to set the Bill in a slightly wider context, namely, the criminal justice system as a whole and judging the effectiveness of the system itself. When making changes to the system, it is important that we stand back far enough to see the totality of what we are dealing with and then make our judgments accordingly. I am not a lawyer, although I had the kudos of winning a case in 1971 — Senator Hayes was probably not even born——
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.
I welcome the Minister of State, Deputy Fahey, to the House and wish him well in his career. I also welcome the officials from the Department of Justice, Equality and Law Reform.
The Minister, Deputy Michael McDowell, has provided a most comprehensive Bill. I hope he is listening to the monitor and I want to commend him for bringing forward this legislation, the Criminal Justice Bill 2004, as well as his officials for their assistance in that regard.
As I am fortunate enough to count the Garda Síochána among my nominating bodies, I am particularly interested the section of the Bill that relates to changes in Garda powers and procedures. The Minister is demonstrating his confidence in the gardaí by extending the powers of the Garda Síochána, for example, in the introduction of fixed penalties for lesser public order offences and significantly, the power to take DNA samples. Criminal investigations in the 21st century must use modern forensic techniques and technology. I am pleased that the power of DNA evidence will be harnessed in as many cases as possible. Such evidence has proved very effective in solving crimes that have occurred more than 20 years before. It came to light in recent times, as Members know, where a person was brought to trial and is now serving his time for an horrendous murder. That was only brought about through the fact that DNA testing was available.
Even more important than the Minister's is the public's confidence in the Garda. The provisions for the new Garda Ombudsman Commission have been approved by the Commissioner and the Garda inspectorate. This office, together with the joint policing committees, which the Minister has had the foresight to establish, will go a long way towards restoring and enhancing public confidence in the Garda Síochána, which is at a high level in this country. The rise in firearms crimes and the number of high profile shooting incidences underline the need for strong measures to control firearms. I welcome the Bill's strengthening of the law as regards firearms.
The Bill is comprehensive in its scope. I commend the Leader and the Minister on providing that in the event of amendments being taken in this House, the Bill can go back to the Dáil and return again to the Seanad before the recess. Bills are often brought to this House from the other House coming up to the recess and there is no time to send them back in order to be passed. This takes from the benefit provided by the House in giving advice on different sections of a Bill.
When the Bill is passed and signed into law by the President, I hope there is a period of time before the provisions are enabled. Members of the Garda Síochána will have to be briefed in detail to make them aware of all the provisions of this Bill. They have enormous responsibility in dealing with legislation already in force and this Bill puts even more responsibility on them. I would not like to have to arrest someone for a public order offence unless I was very sure of the section of a particular Act under which I was making the arrest. Otherwise, my decision would be challenged. I have not received any representations from Garda organisations on this issue, but I feel strongly about it. I met a garda today outside the House and he told me that such information training would normally take place at a local level. However, I feel there is a case for bringing groups of gardaí to a central base for a longer training session to ensure they are aware of all the provisions of this Bill.
It is a long, detailed and comprehensive Bill and the Minister must be commended for his work on it. Section 12 provides for the taking of photographs and for their destruction, along with the negatives, in the event of the person not being convicted. Mug shots of American actors and other prominent personalities in that country are often circulated to the media. The person's arrest number is also distributed for all time, which is very undermining. It is very important that we adhere to section 12 and that everything is done to ensure that photographs do not get into the wrong hands, especially when someone is innocent of a charge. The section dealing with DNA samples is welcome. If someone is innocent, he or she will have no difficulty giving a DNA sample. It is the right time to bring this evidence forward. In many cases, the DNA test has been responsible for a successful prosecution.
With regard to the Firearms Act, the Minister is conscious of the needs of gun clubs and the right to legally hold rifles. In section 28, the new section 2A provides for the grant of a new firearm training certificate for a person over 14 years of age. As a parent, I would not like to see a 14 year old training with a gun. It is not appropriate and I do not see why a 14 year old should be trained in firearms. Firearms are lethal. I have a gun that I inherited from my father-in-law, but I do not use it.
The Minister spoke in the Dáil recently about Senator Morrissey's Private Members' Bill on the use of reasonable force to protect property. When I brought forward the Registration of Wills Bill, the Minister was extremely helpful to me. He read it and gave me his views on it. I want to put that on the record, because the implication was that he was giving favourable support to his own party on a Private Members' Bill. The media tried to imply that he was going outside his remit as Minister in giving advice to a Senator. He would do the same for a Senator on any side of the House. He is a very approachable man in that respect. He advised me on which Department would be responsible for the implementation of the Bill, which I hope will be taken during Private Members' time in the autumn.
When I was a Deputy, a gun was returned by a superintendent to a person in my constituency of south Roscommon. That person then murdered his nephew with that gun. It should never have been returned to him. As a Deputy, I would never ask the Garda Síochána to return a gun to anyone. If gardaí felt that the gun had to be taken in the first instance, I could not take the responsibility of asking them to return it. There should be a more transparent approach relating to the return of a firearm that has been taken by the Garda on the basis that the person could pose a threat to himself or herself, or to others. The section on firearms should be tightened, the procedures should be transparent and someone should not be held responsible for the return of a gun if murder is committed and the person was not involved. Public representatives are often asked these difficult questions and it is difficult to refuse a request.
I welcome the opportunity to contribute to this Bill. The Bill is welcome, but it is long overdue. It was first proposed in 2004 in a much shorter form. Since then, the Government has failed to bring it forward in either House and that is a shame. It has been amended radically and the new Bill is a totally different animal to the Bill as originally drafted in 2004. This is largely due to the fact that the Government was caught napping when a series of gangland killings in this city led to a crescendo of public anger about gangs and gang membership. Provisions for dealing with this issue are now being swiftly put through the Oireachtas. I welcome the fact that the Bill is before us, but it is two years overdue. It does not say much for the parliamentary process that it has taken such a long period of time for the Bill to be prioritised.
I had a great sociology teacher in Professor Michael McGréil, a Jesuit sociologist who was a great defender of the west of Ireland. At the start of a course on the sociology of crime, I remember him saying that it is very easy to be liberal if one is rich, but much more difficult if one is poor. One's disposition to crime and law and order very much depends on where one lives, the circumstances under which one grew up, and one's parents' and family's disposition to law and order. The demand for many of the proposals in the Bill, which Senator O'Toole called quite right wing in nature, is coming from poorer communities. By and large crime affects poorer communities in this city more than the more affluent ones. There is a demand in working class communities that a tough stance is taken and followed through, not just in law and regulations, but also in the enforcement of the law by the Garda Síochána. I reiterate something I have said in this House in the past. What would make the biggest difference in beating the scourge of crime in this country and particularly in this city would be to change radically the Garda recruitment policy by encouraging more children from working class communities to join the force. A bad attitude exists between members of the force and those communities and vice versa. We need to change radically the way we recruit young men and women into the force from these communities in order to change the attitude to crime and law and order.
Law can make a difference in terms of changing social conditions. When Veronica Guerin was murdered ten years ago, the swift enactment of three pieces of legislation by the then rainbow Government, with the support of the then Opposition parties made a difference. Those involved in gangland crime in the city fled the country overnight. Much of the proceeds of their criminal empire was seized by the Criminal Assets Bureau and much of the property they had illegally amassed was put to one side and used by the State. That is an example where the law made a difference. While it is an appalling admission to make in a democracy, it required the high profile murder of an innocent journalist to allow the Legislature implement what was draconian legislation. All the voices that traditionally would have opposed such legislation were understandably silenced by the circumstances of that appalling murder. Law can make a difference. It made a difference ten years ago in the immediate aftermath of the murder of Veronica Guerin. However, unfortunately no concerted effort was made to deal with the new generation of gangland criminals who took the position of the older elements in their organisations, who went to Holland, the south of Spain and elsewhere.
The new generation in control of the gangs in this city is more ruthless, amoral and vicious. They will shoot a person as quickly as they would look at him or her. Unfortunately the considerable progress that was made ten years ago with political consensus has been lost during the intervening time. Unfortunately the gangs are now running amok in this city. I congratulate the Garda Síochána for yesterday's very extensive seizure of drugs and guns in Limerick city. We need to see more such action.
The well-to-do members of our society have a particular responsibility. They have amassed huge sums of money in recent years, and choose to have cocaine parties on Friday and Saturday nights in their own houses and apartments. Their actions are fuelling the gun crime culture that has taken root here. They need to ask themselves serious questions. Their actions are directly linked to much of the murder taking place on the streets of Dublin. As Senator O'Toole said earlier, if we think heroin is bad, we should just wait until we see the generational impact of cocaine and crack cocaine. There can be no tolerance of designer drugs. There can be no tolerance of the notion that an element of the country living in a well-to-do part of the city can be tolerated because they do it in their swanky apartments away from the streets. That activity is leading to the criminalisation of an entire group and poorer people pay the price.
I welcome that section 73 deals with gang membership, a proposal my party made some time ago. The Minister has said it would be difficult to enforce. However, we must break down the kind of loyalty that some of these gangs have managed to engender in parts of the city through control, intimidation and fear. Although they live in areas away from where they came, they still manage to engender a Mafia-type loyalty in more working class communities. We must address that and ensure that the laws are enforced.
The law clearly sets out the prescribed sentence for possession of drugs with a value in excess of €10,000. I respectfully suggest to the judges who must deal with these cases that it is a matter of annoyance and concern to the Legislature that in one case in five, the minimum mandatory sentence for possession of more than €10,000 worth of drugs is not being enforced. If the Legislature sets out a clear sentence, judges have a responsibility to enforce that law. Where there is a breach of what is set out in law we need to understand the individual judge's reasons for doing so.
Much more could be said on this extensive Bill. I support what the Minister is attempting to do with ASBOs. The Dublin South-West constituency is bedevilled with a problem of certain groups of kids who are out of control, which largely relates back to their parents. Section 161(4) refers to a meeting that might be held at the instigation of the superintendent or inspector and states:
The following persons shall be asked to attend a meeting convened under subsection (1):
(a) the child;
(b) his or her parents or guardian;
(c) the member of the Garda Síochána who warned the child in relation to his or her anti-social behaviour;
(d) if the child is already participating in the Programme, a juvenile liaison officer.
There should be no question of asking parents or guardians to attend such a meeting, they should be obliged to do so. The Education (Welfare) Act makes far more compelling provisions, whereby if a child misses 19 days at school, the parent must be directly accountable. If a child puts a brick through a window or is deliberately involved in intimidating an elderly person or a young mother on her own with three children, there should be a direct responsibility on the parent or guardian of the child to attend in person with the superintendent or other Garda officer. I will speak more about this matter when we reach Committee Stage. We have an obligation not only to put the law in place but also to enforce it.
The law must also be clear about obligations in terms of parental responsibility. We cannot blame society, the Garda or the environment in which one lives for everything. The vast majority of the people who live in poorer areas raise their children impeccably. It is the responsibility of the State to ensure that the minority who fail to discharge their duties start taking their responsibilities seriously.
I welcome the Minister to the House to debate this largely sensible Bill. People living in poorer areas who, as Senator Brian Hayes noted, are acutely affected by crime, have long sought some of the measures proposed in this Bill.
Any measure that helps to convict criminals is welcome. The Minister has addressed that issue, although I doubt increased penalties will make a difference to prisoners' attitudes. I am frequently amazed at the sanguinity with which prisoners regard long sentences. Increased detection rates are the most effective deterrent to crime, so I urge the Minister to give the Garda all the support it needs. However, it is often difficult to determine whether the Garda has sufficient resources because its members often claim a shortage of manpower. When the Minister entered office, he revealed plans to significantly increase the size of the force. I hope he will be able to fulfil those plans because gardaí on the beat make a significant difference in terms of deterring crime. International studies indicate that the fear of detection is more effective than any mandatory sentence.
Like Senator Leyden, I am interested in the provisions on firearms. The number of crimes involving firearms has increased significantly and the criminal classes appear to find them incredibly easy to obtain. I presume firearms are also leaking into the rest of society. I was glad to note the inclusion of crossbows in the legislation. I know of a case in which two ten year old boys succeeded in buying one of these weapons from what was described as a reputable sports shop. Increased surveillance is needed in respect of those who have access to guns. I do not know why 14 year olds are allowed to own guns. The age limit could easily be increased to 18. Many gruesome murders have involved legally-held firearms and were committed by people with no history of psychiatric ill-health. I am unsure whether the Bill adequately addresses that issue.
I am disturbed by the provision that a gun dealer cannot be "a person of unsound mind" without a definition of "unsound mind" in the Bill or the principal Act. I can see the claims which will be made by the Minister's learned colleagues with regard to whether a person underwent a three-week course of Prozac five years ago. I have never heard evidence to the effect that gun dealers are a problem and would have liked to see clearer regulations with regard to who can possess firearms.
I do not know how easy it will be to enforce the provisions on organised crime. I am happy to say that I have never even been on the fringe of organised crime. I am sure the Minister is surprised at that.
That is not a proscribed party.
The provisions on the misuse of drugs and the increased penalties for crimes in respect of prisons and detention centres will be difficult to enforce, unless walls of glass are erected between people. I have seen the nets erected to prevent drugs from being thrown into prison yards, which is a pretty amateurish strategy. While I wish the Minister well in his efforts to address the issue, I suspect the problems are sometimes exaggerated. I do not know how many people consume drugs in prisons and am inclined to think that most of the evidence is anecdotal.
It would be useful if more money was provided for treating addiction. Last night, I met Catriona Crowe, the chair of SAOL, a north inner city organisation which treats women with alcohol and drug addiction problems. It also provides employment services with the support of FÁS and a creche which is paid for by the Health Service Executive. SAOL's two-year treatment programme has a success rate of 50%. We should try to imitate that success in other areas, such as prisons, because too many prisoners return to their former milieu after release. I have dealt with people who could go cold turkey for six weeks while in hospital but took drugs again as soon as they were released. We should learn from successful drug addiction programmes rather than be defeatist about the issue.
The CAB has been phenomenally successful, even though it employs a mere 30 people. We should try to reach the next echelon of drug dealers, namely, the people who drive big cars but do not yet own homes in Spain.
Prison terms are necessary for dangerous and violent people but most prisoners are not rehabilitated by incarceration, despite my attempts to involve them in amateur dramatics. It costs between €1,000 and €1,400 per week to keep a person in prison and the money spent on incarcerating people for non-payment of fines and other petty crimes could be better spent. I would not be troubled in the least by electronic tagging if it keeps people out of prison.
I welcome the report recently published by the Minister on promoting the probation and welfare service. Restorative justice has also been supported. The general public has to realise that temporary release is necessary because people cannot simply be thrown onto the streets after a period of imprisonment. Prisoners nearing the completion of their sentences have to get used to society.
I wish to refer to ASBOs. The misery caused by anti-social behaviour is a serious problem. If the programmes work it would be splendid but the situation in the UK is most unsatisfactory. In some areas an ASBO is worn as a badge of pride.
Several Senators have referred to the presence of parents in court when the ASBO is sought. We have had the problem of parents not turning up in the Children Court for a long time. Some children have no parents and sometimes the parents are totally inadequate. Both parents may be working and may not wish to leave their jobs to attend the hearing. Lone parents may not be able to attend. In the lone parents' report I was particularly anxious that we would not encourage lone parents to return to work while leaving children unsupervised at home. This will cause more problems with ASBOs.
The lack of treatment for children and adolescents with mental illness is a problem. Mental incapacity and mental illness is important and must be addressed. Why not encourage after school clubs in areas with serious problems? Whatever it costs, it would be less than the cost of addressing it later. I am concerned that section 144 states that places of detention will be governed by the rules of the Prisons Acts 1826 to 1980 until new rules are made for children's places of detention. I hope there will not be a long delay.
The section on reckless endangerment of children is a very good idea. We have seen how people are slow to report these matters. Anyone who has authority or control over a child or an abuser can be guilty of an offence. The abuser does not have to be someone who has been convicted. It appears to be anyone who has seriously harmed or sexually abused a child. That will be difficult to enforce. How will the person who is charged with reporting address this?
I regret that the Bill contains section 185, dealing with the protection of medical staff, nursing staff, ambulance and fire crews, but it is essential. Various organisations should encourage education in schools to teach children that these people are essential to our community and should not be the victims of assault. I congratulate the Minister on most of the Bill.
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.