Thursday, 26 April 2007
Criminal Justice Bill 2007: Second Stage
I am very pleased to present the Criminal Justice Bill 2007 to this House. Senators will be aware that this Bill represents the Government's legislative response to gangland crime. Its basic aim is that the law enforcement agencies, be they the Garda Síochána or the Director of Public Prosecutions, should have the means to tackle more effectively the great scourge of gangland crime. I believe the Bill will satisfy that aim.
As Senators will be aware, the Bill has completed all Stages in the other House where we had very successful and productive debates. Members will, no doubt, also be aware of the level of comment and debate the Bill has attracted from sources outside the Oireachtas since its publication. I know the Tánaiste was impressed by many of the points made both in the other House and by interested parties outside. As a result, he was pleased to bring forward several amendments of his own and he was also pleased to accept several amendments proposed by the Opposition. The Bill I present today is, therefore, more refined and targeted legislation. It is a better Bill because, as a Government, we listened to those who made their points rationally and with a genuine concern to see effective anti-gangland measures. The Tánaiste has always acknowledged that the Bill contains tough measures. He has also stated that the measures are both necessary and proportionate to the threat we face from organised gangland crime. The amendments I have spoken of ensure, more than ever, that we are proportionate in our response to gangland crime. The amendments have ensured the Bill is more targeted and focused.
Although it has been amended, the Bill retains all its essential elements regarding, for example, mandatory sentences for repeat offenders and post-release supervision arrangements. It will be clear, however, that as a result of a thorough review of several of these issues, which took full account of genuine concerns expressed inside and outside the Oireachtas, the Tánaiste has been able to amend these provisions to ensure they address and target much more precisely those who it was always intended should be the target of the legislation, namely, serious gangland criminals. It will do so without undue or excessive interference with the rights or freedoms of other persons.
Legislation such as this is clearly important. I stress that the Government is not relying solely or mainly on legislative changes in tackling the problem of gangland crime. As a Government, we recognise the need for more and improved resources to help the Garda, in particular, as it seeks to build intelligence and undertake difficult surveillance and investigations. While we are fully committed to the idea that good police work is essential to a successful outcome, we recognise that good police work requires resources and manpower.
The Government has, over the past decade, built up the Garda in an unprecedented way. In December last, it responded rapidly and in a substantive manner to an upsurge in gangland crime, by agreeing a major package of anti-crime measures which included a further increase of 1,000 in the strength of the Garda Síochána to bring the total to 15,000 over the next three years; sanction for 300 additional civilian administrative support posts for the Garda Síochána to release gardaí for frontline duties; recruitment for the seven senior civilian posts recommended in recent reports by Kathleen O'Toole, head of the Garda inspectorate, and Senator Maurice Hayes of this House; an increase in the retirement age for gardaí, sergeants and inspectors from 57 years to 60 years; a proportionate increase in the targeted strength of the Garda reserve from 900 to 1,500; increased staffing for the forensic science laboratory, Office of the Director of Public Prosecutions and the Courts Service; and no limit on funds available for the witness protection programme.
Before I outline the Bill's main provisions, the Tánaiste would like me to pay tribute to the valuable input from the Balance in the Criminal Law review group. When he established the review group under the chairmanship of Dr. Gerard Hogan, SC, the Tánaiste asked it to examine many of the broader issues in relation to the criminal law. The group prepared an interim report on the right to silence at the beginning of February and its recommendations are reflected in Part 4 of the Bill. It has since published its final report, a wide-ranging document which will form the basis for a comprehensive debate on the state of the criminal law. While some of its recommendations have been taken on board in the Bill, particularly regarding the right to silence, I have no doubt many of its remaining recommendations will find their way into future legislation.
I will now give the House an outline of the Bill's main elements. In the time available I may not be able to mention every issue but I will deal with all the significant areas. The Bill has 60 sections in nine Parts, with two Schedules. Part 1 deals with standard items such as commencement and interpretation. Part 2, which includes sections 5 to 23, inclusive, updates the law on bail. I will concentrate on sections 6, 7, 11 to 13, inclusive, and 19.
Section 6 provides that the applicant for bail may be required to provide a statement on his or her assets and income as well as details of any criminal convictions and previous bail applications. Section 7 provides that a chief superintendent may give his or her opinion that the applicant, if given bail, is likely to commit a serious offence and that the application should therefore be refused. Sections 11 to 13, inclusive, provide that a person granted bail may be subject to electronic monitoring if the bail is conditional on the person being or not being in certain places at certain specified times. Section 19 provides the prosecution with a right of appeal against the grant of bail or in respect of any conditions attaching to bail, where it is granted. Such a right is not currently available to the prosecution. This section also allows the High Court to transfer bail applications to the Circuit Court in cases where the case is triable by the Circuit Court.
The changes being introduced by Part 2 will ensure the prosecution authorities are in a position to mount a more effective challenge to bail applications where there is a likelihood of the applicant committing serious offences if given bail.
Part 3, which covers sections 24 to 27, inclusive, deals with sentencing. Before I outline the nature of the proposed provisions I remind the House of some general remarks made by the Tánaiste on sentencing at Second Stage in the Other House. He made the point then that there must be consistency in sentencing. When it comes to the mandatory minimum sentencing provisions applicable to, for example, section 15A on drug trafficking offences, the will of the Oireachtas, which is also the will of the people, is that a conviction should lead to a ten-year sentence with seven and a half years being served, taking account of remission for good conduct. As the Tánaiste indicated, this provision is neither disproportionate nor arbitrary but a conservative measure that reflects the values of society. It was established for the guidance of the Judiciary and to deter people in the drugs trade who may be tempted to resume their criminal activities after serving short sentences.
Most people agree that the evidence available to us suggests a lack of consistency in sentencing, especially for drugs and firearm offences. This circumstance leads to calls for legislation. The Tánaiste was clear when he stated that the people expect coherent, rational and consistent sentencing in the courts. He was also clear in stating his own preference, namely, the development of an effective sentencing jurisprudence by the courts. He added that, collectively and individually, the independence of the Judiciary is enhanced rather than damaged by collective measures taken by the Judiciary to ensure consistency, rationality and coherence in sentencing. The Tánaiste gave his personal assurance that he would give every backing through resources and legislation to achieve that end.
Schedule 2 is central to Part 3. The offences in Schedule 2 are among the most serious known to the criminal law and include all the offences typically associated with gangland crime, including drug trafficking and firearms offences.
Section 25 provides that a person who commits any one of the scheduled offences and has been given a sentence of five years' imprisonment or more and who within seven years commits another one of the scheduled offences will be subject to a penalty of imprisonment equal to at least three quarters of the maximum laid down by law for the second offence in question. Where the second offence carries a potential maximum of life imprisonment, a sentence of at least ten years must be imposed. This section will not apply where it would be disproportionate to do so. This is intended to ensure the section is applied only in the way it is intended, namely, to serious gangland cases. Equally, it ensures the section is not applied to other persons who may technically come within this section but are not linked to gangland activity. The aim and focus is on gangland offenders.
Section 26 provides the court with two post-release options in the case of persons convicted of a scheduled offence. It may impose a monitoring order, whereby the Garda may track an offender's movements and, as a result, build intelligence and establish that the person has not returned to criminal activity. The court may additionally or alternatively impose a protection of persons order, which can ensure that victims and other persons are not molested or harassed by the offender. In both cases the orders may last for up to seven years. These provisions on sentencing are innovative and reflect the need to find new ways to meet the challenge we face from organised crime.
Part 4, which covers sections 28 to 32, inclusive, deals with the right to silence. I will deal with sections 28 to 30, inclusive, together. Section 28 inserts a new version of section 18 of the Criminal Justice Act 1984. Section 29 inserts a new version of section 19 of the 1984 Act, while section 30 inserts a new section 19A into the 1984 Act. The provisions in sections 18, 19 and 19A, by virtue of coming under the 1984 Act, are applicable to all arrestable offences. Sections 18 and 19 will deal with inferences that may be drawn from a failure or refusal to account for certain marks or stains or from being present at a certain place at a particular time. Section 19A will deal with a failure to mention while being questioned something that is later relied on by the accused in his or her defence.
I will highlight certain important features of the new proposals. Under the current provision in sections 18 and 19, inferences may be drawn only if it is the arresting garda who asks the arrested person to account for, in the case of section 18, objects or marks or, in the case of section 19, his or her presence in a particular place, and the person refuses or fails to do so. This has proven to be a significant restriction on the operation of these sections. Under the revised version now being proposed for sections 18 and 19 and the new section 19A, any garda questioning the suspect may ask him or her to account for the objects, marks or, as the case may be, his or her presence in a particular place.
The court may draw inferences in situations where it is determining whether the person is guilty or where it is considering an application for dismissal of the charge in the course of a trial on the basis that there is no case to answer. It is proposed that the court may draw an inference only where the circumstances in question clearly call for an explanation. An inference may be drawn only where it is or is capable of being treated as corroboration for any other evidence on the matter. A person may not, however, be convicted solely or mainly on an inference. The court may take account of the point in time when the accused first gave an account in about the objects or marks or presence at the place. The court must not draw inferences unless it is satisfied the accused had been given a caution in clear terms and had access to a solicitor before failing or refusing to answer the question put to him or her by the investigating garda. An electronic recording of the interview must be available before an inference is drawn, unless the accused had refused to have the questioning recorded.
Since the new section 19A, with sections 18 and 19, has general application to all arrestable offences, it is no longer necessary to have more specific provisions. As a result, section 7 of the Criminal Justice (Drug Trafficking) Act 1996 and section 5 of the Offences against the State (Amendment) Act 1998 are being repealed. This is being effected by section 3 and Schedule 1 of the Bill. Section 7 of the 1996 Act and section 5 of the 1998 Act covered the same ground as the new section 19A, but to a more limited extent than is now proposed.
Section 31 amends and updates section 2 of the Offences against the State (Amendment) Act 1998. Section 2 is more specific than section 5 of the 1998 Act in that it relates to inferences that may apply in cases relating to membership of an illegal organisation. It would, therefore, be appropriate to repeal it but it is being amended to include, in particular, the safeguards now generally available under sections 18, 19 and 19A of the 1984 Act in the case of arrestable offences. Section 32 provides a new basis for the making of statutory regulations in regard to the content and the administration of cautions.
This completes a full revision of the law in this area and goes further in some respects than had been recommended by the review group, for example, in ensuring a right to consult a solicitor before deciding whether to answer a question. The Tánaiste is satisfied the new situation improves considerably on the existing situation. It is a balanced set of proposals that allows for reasonable and commonsense inferences to be drawn but that nevertheless also provides strong and enforceable safeguards. Account was taken, when formulating these proposals, of developments in other jurisdictions, for example, England and Wales, where the law was changed in 1994, and in Northern Ireland, where the law was changed in 1988. Their laws go further than what is now proposed here, for example, by allowing inferences to be drawn from an accused person's failure to take the witness stand at the trial. Account was also taken of the European Convention on Human Rights and the jurisprudence of the European Court of Human Rights. As a result of this comprehensive revision, our law will be fully up to date and well balanced.
Part 5, section 33, deals with the Misuse of Drugs Act 1977, in particular section 27 of that Act which deals with the question of mandatory minimum sentences. Section 27 has already been amended in 1999 and 2006. The section is now being presented in a consolidated way, taking account of those previous amendments and adding a new subparagraph (a) to subsection (3C). The new paragraph (a) is a so-called construction clause that sets out in the clearest terms the intentions of these Houses in regard to mandatory minimum sentences for drug trafficking offences. It will be perfectly clear that the mandatory minimum term of ten years must apply in all but the most extreme and exceptional cases.
I have already set out the Tánaiste's general position on sentencing. Section 27 of the 1977 Act, as it is now set out, represents a clear statement of when the ten-year mandatory minimum is to apply. We are giving clear expression to the will of the Oireachtas and, for the present, nothing more need be said on the matter.
Part 6, sections 34 to 40, deals with firearms, in particular with the circumstances where the mandatory minimum term of either ten or five years' imprisonment is to apply. Each section repeats the so-called construction clause to which I referred in the case of drug trafficking. The new clause puts beyond doubt the intentions of these Houses in regard to this issue, if anyone could ever have been in any doubt about the matter.
Part 7, sections 41 to 43, deals with amendments to the Garda Síochána Act 2005. Section 41 inserts a new Chapter 3A into the 2005 Act providing for the establishment and functions of a Garda Síochána executive management board. The board will consist of executive members — the Garda Commissioner as chairperson, the deputy Garda commissioners and a member of the civilian staff of the Garda Síochána at a grade equivalent to that of a deputy Garda commissioner — and three non-executive members. The three non-executive members, who will have appropriate management experience, will be appointed by the Government on the nomination of the Minister. They will serve in an advisory capacity.
The board will keep under review the performance by the Garda Síochána of its functions, as well as the arrangements and strategies in place to support and enhance the performance of those functions. It will keep under review the arrangements and strategies in place to support and improve the performance of the organisation and the corporate governance arrangements and structures within the Garda Síochána. The board will produce reports every six months on the performance of its functions to the Minister and they will be laid before each House of the Oireachtas.
Section 42 of the Bill provides for the replacement of section 42 of the 2005 Act. Section 42 enables the Minister to order special inquiries to be carried out into Garda activities in certain circumstances. The Tánaiste has come to the conclusion that the provision should be strengthened and extended. Therefore, inquiries under the current section 42, which are limited to the administration, practice or procedure of the Garda Síochána, will be broadened to include operations of the force and the conduct of its members. The person appointed by the Minister to undertake the inquiry may interview not just members of the Garda but also any other person who has information or control over a document or thing of interest to the inquiry. That person will also be empowered to apply to the High Court for an order of compliance, backed up, if necessary, by the possibility of an order for contempt being made by the court where there is a failure to co-operate with the inquiry.
Section 43 provides for a number of amendments to the Garda Síochána Act 2005. Some of these amendments arise from suggestions made by the Garda Síochána Ombudsman Commission. The remainder are mainly technical in nature and involve minor changes to clarify certain matters which have come to light since the passing of the 2005 Act.
Part 8, section 44, amends the Sea Fisheries Acts 2003 to 2006. The amendments are necessary to strengthen controls in regard to the detection and enforcement of illegal fishing activity, particularly in regard to the powers of sea fisheries officers acting under a search warrant, as well as changes relating to penalties under the Sea-Fisheries and Maritime Jurisdiction Act 2006. I understand the necessity for these amendments was highlighted by a recent case where sea fisheries protection officers were denied access to a premises. Their legal right to enter was subsequently vindicated by the High Court. The amendments are included in this Bill at the request of the Minister for Communications, Marine and Natural Resources and with the approval of the Government.
Part 9, sections 45 to 60, covers several important issues. Section 45 amends the Garda Síochána (Complaints) Act 1986 in regard to the terms of office of the members of the Garda Síochána Complaints Board and the Garda Síochána Complaints Appeal Board, respectively. It is necessary to provide that those members cease to hold office upon the repeal of the 1986 Act, when the relevant provisions of the 2005 Act are commenced.
Section 46 deals with the possession of articles or cash for use in the commission of certain serious offences that are listed. For this purpose, it substitutes a new version of section 183 of the Criminal Justice Act 2006. It also provides for a new section 183A of the 2006 Act. An offence is committed where a person has possession of the article or the cash in circumstances that give rise to a reasonable inference that they have it for purposes of committing one of the listed offences. It is a defence for the person to show that he or she did not possess it for the commission of an offence. The penalty on conviction under either section 183 or 183A is up to five years' imprisonment.
This section again underlines the fact that the Bill aims to tackle gangland crime at all levels, including the support systems that are so essential for the main players. These provisions will be very useful in tackling those who assist and facilitate the major gang bosses.
Section 48 provides for a new section 6A of the Criminal Justice Act 1984. It will permit the use of reasonable force in the taking of samples — finger or palm prints or photographs — under section 6. The person must first be cautioned and the use of reasonable force must be authorised by a superintendent and supervised by an inspector. It must also be video recorded. Unfortunately, a provision such as this is necessary but I hope Senators will agree this section contains strong and verifiable safeguards.
Section 49 replaces section 8 of the Criminal Justice Act 1984. Section 8 deals with the destruction of fingerprint samples and similar records, generally after 12 months where no prosecution is taken or within 21 days where a prosecution ends in an acquittal or dismissal. In other words, only samples or records relating to convicted persons may be retained. There is a growing consensus that such a limited approach is no longer justified. The new section 8, therefore, is based on the principle that all samples and records are to be retained indefinitely but that, in the interests of justice, some provision needs to be made for removal and destruction of samples in individual cases. The new section 8 provides a mechanism for the removal, etc. of samples in these limited circumstances. This change will enable the Garda to develop a more comprehensive databank of information which can be searched for intelligence purposes. This is essential for modern police work. Similar proposals are contained in the legislation being drafted on the establishment of a DNA databank.
Sections 50, 51 and 53 introduce new detention arrangements for persons arrested in connection with murder where firearms or explosives were used, capital murder, false imprisonment where firearms were used or possessing a firearm with intent to endanger life. These offences are ones linked to gangland activity and the extended detention time is necessary to locate and interview witnesses and suspects as well as providing adequate time for the forensic examination of crime scenes.
In the cases coming under these new arrangements, persons may be detained for up to seven days. This is already the case under the Criminal Justice (Drug Trafficking) Act 1996. Detention under that Act is under judicial authorisation and supervision after the first 48 hours and it will be the same under this new provision. The new power is limited to the serious cases I have mentioned. It is limited to this set of offences because the use of such an arrangement can be justified only in cases that present the level of threat that comes with gangland crime.
Section 52 ensures certain sections of the Criminal Justice Act 1984 apply to persons arrested and detained under the new powers. The relevant sections provide, for example, for access to a doctor, if required, access to a solicitor and also provide that a person must be released once the detention is no longer required or justified.
Section 56 restricts access to tapes of Garda interviews. In future, only accused persons can have access, and then only with permission of the court. This deals with an abuse which is widespread, whereby anyone whose interview was taped may have access. Tapes are then used to prove, so to speak, that the arrested person did not reveal details of accomplices, etc. Section 57 provides that it will no longer be necessary to commit to writing statements that are recorded electronically. This will save on Garda time and reflects the increased use of electronic equipment in investigations.
Section 58 clarifies the position of non-Garda Criminal Assets Bureau officers who attend at interviews with suspects. Section 59 clarifies that the changes introduced by section 22 of the Criminal Justice Act 2006 do not affect the right of the Director of Public Prosecutions to bring appeals against unduly lenient sentences. It also clarifies that the Supreme Court is not restricted in its review to consideration of only the point referred to it from a decision of the Court of Criminal Appeal. Section 60 clarifies the operation of section 99 of the Criminal Justice Act 2006 in so far as that section's provisions on suspended sentences are to apply, especially in instances where there are consecutive sentences following a partially suspended sentence. This is an important technical point.
I am happy to commend the Bill to the House. As we have seen, it is major legislation with many important and far-reaching provisions. Although diverse in its range of issues, it has a unity in so far as each Part, other than Part 8, has its own part to play in the fight against organised crime. I look forward to hearing the views of Senators on this important Bill.
Fine Gael welcomes this Bill and supports what it purports to do. However, I am not convinced it will achieve all the Minister has promised it will. I am concerned about the Bill from a number of perspectives, not least the fact it may end up doing the opposite to what it intends. I am concerned also that the Bill as worded is not robust or watertight. A lack of prudence in this area could lead to challenges against the Bill's provisions at a later stage. I am concerned, too, that serious criminals will walk free on foot of loopholes that may be created by the legislation.
Unfortunately, we will not have the necessary time to consider and debate the minutiae of the Bill and many gaps will not be exposed until a case such as the A case emerges. Notwithstanding the amendments made by the Minister and my Opposition colleagues during debate in the Dáil, I am concerned the Bill will not be properly analysed. Down the line, it is victims who will ultimately pay for this lack of adequate analysis.
I have no objection to what the Minister has promised the Bill will do, nor have I any objection to making life more difficult for criminals, especially those involved in gangland crime. Neither Fine Gael nor I object to the strengthening of our criminal justice system to equip it for the new brand of criminal who is altogether more sophisticated, slyer and willing to subvert the course of justice at every opportunity. However, I have a problem with the fact that in practical terms, the Bill will do none of these things. I have a difficulty with promises made disingenuously, cynically and insincerely by a Minister who has repeatedly failed to deliver or to make good on the raft of commitments and pledges he has made — anything to boost his ailing party's poll figures.
I have a difficulty also with the treatment of this serious and important legislation. Each section will be allocated only a minute for debate in this House. This demonstrates how seriously the Minister treats the House. I find it objectionable that the House will not have the opportunity to amend the Bill. I understand we now have the opportunity to debate it on Second Stage and that we will go through the motions of debating it on Committee and Report Stages. Let us be honest however. There is no way the Tánaiste will accept any amendments from us. The debate is a complete waste of time and a cynical exercise in the subversion of democracy.
I have tabled many amendments and they deserve debate and genuine consideration. Many colleagues have tabled amendments also and they should be considered as valuable contributions. However, the Tánaiste and Minister for Justice, Equality and Law Reform has not tabled a single amendment because he knows that if he accepts Seanad amendments, the Bill must go back to the Dáil, which will mess up the Government schedule for calling a general election for which the country is sick and tired of waiting.
Perhaps I am wrong and the Tánaiste will come in tomorrow with the genuine and sincere intention to weigh up the contributions of the Members of the Upper House. Perhaps he will accept amendments that merit inclusion in the Bill and concede the Bill is not perfect and leaves room for improvement. We will see soon enough. If he fails to accept a single amendment, it is a clear indication that he has no respect for this House or the legislative process which has served the country well for more than 70 years.
This is especially galling given the Minister's track record in passing sub-standard laws. We do not have to go back more than a year to find examples of criminal legislation the Minister has managed to foul up. Within the past 12 months the Oireachtas has been convened not so much to debate as to rubber-stamp Bills produced in a panic by a Minister desperately feeling in the dark for something to anchor his political career. I want to know why he cannot learn from his mistakes and give proper time and consideration to the laws that will affect every citizen, some deeply.
The Bill proposes, for example, to increase the detention periods for questioning by the Garda. Regardless of the fact that this might be unconstitutional, will the Minister of State explain who demanded this change? Did the Garda request it? Is it seriously suggesting that it will get more convictions if it can question suspects for longer? These measures already exist for certain prescribed offences and the Garda does not even use the time extensions allocated to it. What could a garda possibly learn in a week that he does not learn in five days? I look forward to hearing the Minister of State's response to these questions. Where is it proposed to keep the suspects for up to seven days? Garda stations are not equipped to hold people for seven days and meet their needs. The Garda is worried about these provisions and the added responsibilities they place on its members.
Many eminent and expert lawyers have expressed their concerns about this Bill and the lack of proper debate and consultation. The Law Society did not bother making a submission because it knew it would be treated with contempt, as is this House. There should be a moratorium on new legislative proposals until the Law Reform Commission has held a comprehensive review of all criminal justice legislation. We are victims of excessive legislation, plenty of law but very little order.
Everyone recognises the serious crisis in the rate of crime. Everyone from Wexford to Westport, or Waterford to Walkinstown, has been either directly affected by crime or knows someone who has. People do not need to hear statistics to know that incidents classified as assault, arson, drug offences, robberies, and fraud have increased by over 22% in the first quarter of 2007, according to the Central Statistics Office figures released yesterday.
Deputy McDowell has the worst legacy of any Minister for Justice, Equality and Law Reform in the history of the State. He has talked a good game — he is well able to talk — but has fallen badly on implementation. Is this Bill really concerned with a significant restructuring of the criminal justice system? Is it genuinely motivated by a desire to deal with expanding problems in the areas of bail, sentencing, and the right to silence? Is it a sincere attempt by a Minister leaving office to right the wrongs of the past five years or is it a purely political stunt designed to take policies from the Opposition for the coming general election campaign?
I am delighted to see so many Fine Gael ideas at the centre of this Bill. The Progressive Democrats need every decent policy they can lay their hands on for this election but does the Minister of State think that this posturing can fool the public for one minute? Does he suppose that the people will not realise the Tánaiste has been Minister for Justice, Equality and Law Reform for the past five years but has been seized only in the dying weeks of this half decade with a desire to do something about the problems that Fine Gael, Labour and other Opposition parties have been shouting about for the past few years?
The Minister of State says that the Bill is being rushed through because its provisions are so urgent. They have been urgent for the past five years and nothing was done about them. They have been needed since the first gangland assassination, headline crime figures started to creep upwards, people started to feel unsafe in their homes and detection rates began to plummet. They have been essential since this Government took office but it has only put on a spurt when the election is all but upon us.
There are other urgent matters absent from this Bill. The Minister of State said that the witness protection programme is so urgent that there should be no limit on funds available yet there is very little here to deal with witness protection or several other urgent areas.
In respect of what is included, I am particularly pleased to see the provision in section 11 to provide for tagging of certain persons released on bail. Fine Gael raised this issue recently when it formed part of our leader's speech at the party's Ard-Fheis.
At the time the Tánaiste rubbished the idea, saying it was laughable and unworkable and that Fine Gael was in cloud cuckoo land for even daring to make such a proposal. Now the Tánaiste has undergone a Pauline conversion. He has not only come around to our way of thinking but has made Fine Gael policy one of the cornerstones of his last Criminal Justice Bill. Imitation is said to be the sincerest form of flattery. This is an important issue and I am delighted to see it included in this Bill.
Only last month our leader highlighted the extent of this problem when he revealed that over 650 suspected serious criminals were out on bail at the end of 2006. The Minister of State's statistics show that after ten years of Fianna Fáil-Progressive Democrats Government the violent criminal has never had it so good. I am pleased to see that something is finally being done about that and I am proud that the Government is adopting so many Fine Gael policies even at this late stage.
The Tánaiste promised us the Criminal Law (Defence of Life and Property) Bill which was introduced in the aftermath of the Fine Gael Bill on home defence. The Government voted down the criminal law home defence Bill in 2006. Last month the Oireachtas passed the Criminal Law (Sexual Offences) (Amendment) Act 2007, another Bill rushed through when it was brought to the Tánaiste's attention that the original Act repealed an important law on child protection. The amended Act implemented a Fine Gael policy from 2004 outlawing Internet grooming of children for the purposes of sexual exploitation. It is amazing that it took three years to act on this issue, particularly when the Tánaiste transcribed the Fine Gael proposals verbatim into his Bill last month.
These are only some examples of the Tánaiste following our lead. Last year Fine Gael proposed a Private Members' Bill in the Dáil, the Courts (Register of Sentences) Bill 2006, which was voted down by Fianna Fáil and the Progressive Democrats without any valid reason. It would have provided for a comprehensive register of sentences for the purposes of comparison and transparency. It would have allowed us to consider the consistency of sentences and to examine this important area of our justice system scientifically.
Section 24 deals with minimum sentences for repeat offenders. There appears to be a lacuna here. Without going into the details, it is worth asking what precisely has prompted this measure and why judicial discretion is removed entirely from sentencing. Given there is no sentencing register or database in this jurisdiction upon which a proper analysis of the levels of effectiveness of sentencing penalties can be based, how can it be effective? The failure of the Government to accept the Fine Gael Bill on the register of sentences is as serious an impediment to a rational approach to the adjustment of maximum sentences by the Oireachtas as it is to the assessment by the Court of Criminal Appeal as to the appropriateness of a sentence imposed in any case. In the absence of such a system, debate about sentencing seems destined to be confined to tabloid-style expressions of outrage at sentences and inappropriate and unjustifiable ministerial attacks on the courts in general.
The Minister for Justice, Equality and Law Reform, Deputy McDowell, has promised us this Bill will do many things. He told us it will strengthen our system and make life more difficult for criminals, and I hope it does. However, I am not convinced and several parts of the Bill will have the opposite effect. Without time to consider and amend it, we will have several problems in years to come.
Mr. J. Walsh:
I will share time with Senator Maurice Hayes. I will stick to the content of the legislation because it is an extremely important Bill and I do not wish to be seduced into discussing peripheral issues for electoral purposes. It is a pity that has happened because we have a good record in this House of fairly and honestly evaluating legislation which comes before us. That has been recognised by many on all sides of the House who have paid tribute to the Minister for Justice, Equality and Law Reform for the open manner in which he has brought forward various reforming pieces of legislation, not just relating to the criminal justice system but on prisons, the Garda Síochána and a range of other areas.
Mr. J. Walsh:
It is easy in the heat and pressure of an electoral battle to allow ourselves to slip into self-delusion, but that is a pity.
In general I subscribe to what is in the Bill. We have debated aspects of it in this House and it is a Bill which rebalances the system. In that regard we must be conscious of the need for safeguards to ensure we avoid miscarriages of justice.
Legislation is only one component of the fight against crime. The effectiveness of the Garda Síochána is also important and it is good to see its strength increased so that it is now heading for 15,000 members. I am critical of the fact that we set up a pilot scheme for the Garda Reserve as I felt it unnecessary but it was accepted by the Minister on the recommendation of the Department of the Environment, Heritage and Local Government. A couple of meetings a year and a pilot scheme for 12 months will not tell us anything and, therefore, I would like to see it rolled out. I would also like the committees rolled out to become an effective arm of the whole operation of the Garda Síochána.
I welcome the setting of non-monetary conditions for bail and it is sensible for a judge to be provided with a statement of previous convictions and bail applications as part of his or her consideration of an application. I also welcome the provisions for electronic monitoring and the fact that the prosecution can appeal bail where there is a risk of new and serious offences. Much stricter criteria should apply to who is and is not granted bail. Too many serious crimes have been committed by serious criminals while on bail who feel they can do so with impunity because of the system of concurrent, as distinct from consecutive, sentencing.
The Minister of State referred to sentencing, as did the Minister, Deputy McDowell, in the debate in the Dáil. I have argued previously for two particular bodies and I am disappointed one of them has not been set up, namely the body to deal with judicial conduct. There have been high-profile instances during the lifetime of this Parliament, as there were in the previous one, where a caution or some other disciplinary action would have been more appropriate than forcing a judge to resign, because the offence in question did not register highly on the Richter scale. In another case, one who committed a serious offence in the eyes of the public got away with it simply because of inadequate mechanisms, despite the efforts and commitment of dedicated people in this House.
A judicial commission should be established to deal with such cases, made up of members of the Judiciary, experts in that area and Members of the Oireachtas, to adjudicate in a fair and impartial way on cases brought to its attention. It would do nothing to take away from the independence of the Judiciary. The Judiciary occupies a privileged and important place in our society but that does not mean it is above the law. In a republic everybody is subject to the law and such a committee should be established, notwithstanding opposition from the Judiciary itself.
I take on board the point made by the Minister, which has been made for the past five years in debates such as this, that there is a need for consistency in sentencing. We have recently seen high-profile cases where the sentences seem inadequate, such as one in which a person had made recompense for an offence only to be given the maximum sentence in any event. To most observers that appeared unfair and seemed to arise from the judge's displeasure at the manner in which the accused had presented himself. Such bias should not enter into the decision-making process.
There needs to be a formal body, in this case exclusively made up of the Judiciary, in which decisions of judges can be examined by their peers and from which sentencing guidelines may emerge. Some of the sentencing we hear about is not good enough. Notwithstanding the fact that, in most cases, judges hear cases conscientiously and come to informed decisions, there are sufficient minority instances where that does not happen.
The provisions for mandatory minimum sentences in the case of second offences are reasonable. I strongly subscribe to the whole approach to sentencing in the Bill. I have said previously that where remission of sentences is given it should be only suspended. If people are freed they should have to serve their time in the event of a subsequent offence. The Minister takes a different approach by providing that if serious offences occur within seven years of an earlier offence the perpetrator must serve a minimum of three quarters of the maximum sentence, and that is welcome. However, where a remission is made, it should be treated as a suspension of the sentence, and it should not be just for good conduct in the prison, which is often due to self interest, but also for subsequent good conduct.
The right to silence is a strong principle and the provision in this regard has been opposed by lawyers and others, who have argued strongly against it. I believe it is worthwhile. Everybody has heard of the accused focusing on a point in the wall and refusing to answer questions. There are safeguards in the Bill whereby a caution must be given, the accused will have access to a solicitor and a video recording will be made unless the accused objects. I believe accused persons should be in a position to object only when they consider their personal safety to be an issue, in other words, where they believe the evidence they give might expose them to some form of counter action by those they might incriminate.
Furthermore, a person may not be convicted solely or mainly on the basis of an inference; corroborative evidence will be required. That is an effective safeguard. Section 19(a) deals with a failure on the part of the accused to mention while being questioned certain facts which he or she might later rely on in the defence. That might be a dangerous provision and must be monitored closely.
There must be a major international evaluation of the drugs problem. We are losing the fight against drugs and people who are otherwise law-abiding are being drawn into crime as a result. Overall, I agree with the Bill's provisions regarding a data bank. However, there is a risk for innocent people. We saw in Donegal what can happen when members of the Garda do not themselves follow proper standards. We need to provide proper safeguards. Where a garda or somebody involved in the administration of justice wilfully causes an innocent person to be convicted of an offence, that garda or person should be exposed to the imposition of a similar type of sentence if convicted of doing that. There must be safeguards to ensure the provision operates effectively.
I am grateful to Senator Walsh for sharing time with me. There is a sense that we are engaged in shadow boxing. It is a pity there is not more time to discuss this Bill in the Seanad. The Bill was greatly improved in its passage through the Dáil and I am pleased the Minister amended a number of his first suggestions. A similar improvement could have been achieved in this House because the Bill deals with hugely important issues that require close consideration.
I will mention two or three of them. I am reasonably relaxed about what is being done with the right to silence. That system has been operating in Northern Ireland and the provisions in the Bill are similar. The roof has not fallen in on the criminal justice system in the North. What is important is the form of the cautions given to people and the words in which they are framed and, second, the direction the judge gives to the jury as to what inferences might be drawn.
The extended period of interrogation is justified in some cases, particularly when international crime is involved. However, I have a concern and it relates not just to the Garda but to most police forces. If one gives them an exocet, they will use it, even when a peashooter would do. It must be clear that this provision relates to a limited number of extremely serious issues, and that not everybody who is suspected of something can be locked up for a week at a time. It should be also subject to judicial review at regular intervals. The European courts would require that.
I have considerable concerns about mandatory sentencing. It takes the judgment out of judging. There is a strong case for consistency and the Minister spoke about providing a jurisprudential basis for it. Senator Walsh's suggestion of peer group review is attractive and is practised in medicine and in other areas. People have a right to feel the will of the people is expressed, but only to an extent. One does not want trials turned into lynch trials or witch hunts. It is a job for the judges, through judges' conferences and the like, to ensure there is a degree of consistency.
I have long had a concern about mandatory sentences. It removes the decision from the judge and gives it to the person who frames the charge. A Bill was introduced by William Craig in the old Northern Ireland Parliament in the late 1960s dealing with public order. Members will forgive me if I mix up the technical terms but in the Bill a distinction was made between affray and riot. The mandatory sentence for affray was two years, while the mandatory sentence for riot was five years. Unsurprisingly, all the guys on the Shankill Road were engaged in affray while all the guys on the Falls Road were engaged in riot, so that had to be removed. This is a real danger and the judges are right to be concerned about it.
The Minister of State, Deputy Parlon, was kind enough to refer to a recommendation which I and a group had made for certain civilian appointments, which was accepted by the Government. We made that recommendation last November but the appointments have not yet been advertised. As far I know, they will not be in office before the end of the year. These are extremely important. Perhaps the Minister will do some progress chasing in that regard. There is no point putting additional resources into huge organisations such as the Garda, the health service or the like until the structures are correct.
I am pleased with the reference to the non-executive members of the Garda executive board. I wonder from where that idea came. It is important his element is included. These people will not be involved in Garda operational matters but will provide the type of governance one gets in a large business environment. They will provide experience in long-term strategic planning, management, performance management and so forth. I welcome that aspect of the Bill.
I could have said a great deal more about the Bill and I regret not having had the time to do so.
I deplore this legislation and the absence of the Minister for Justice, Equality and Law Reform, who has not seen fit to show his face in the House. I am not surprised; perhaps he is ashamed. This is a dreadful day for the Oireachtas. It is a complete abrogation of democratic responsibility. The Seanad is being treated with contempt. Our principal responsibility is to review and refine legislation and put down amendments but it is obvious no amendments will be accepted. Once again, the Government is undermining the democratic function of Seanad Éireann. That is a disgrace.
This is rushed legislation and its aim is unclear. It was stated it is intended to address the problem of gangland violence but it will not do that. There are ways to approach it but this is not one of them.
An analogy is drawn with similar measures introduced in Britain but that has been done in the context of very intensive debate and with proper safeguards, which are absent from this Bill.
The Bill, as originally put before the other House a few weeks ago, drew a chorus of criticism from the entire legal profession. Today in The Irish Times there is a letter signed by a column of practising barristers which draws attention to the dangers implicit in this measure, for example, detention of people in police stations in the light of the Morris tribunal. That is what our experience has been, yet there is no clear reference to that or belief that the matters exposed by the Morris tribunal have been properly addressed in the issue.
There is also an article by Brendan Grehan, SC. He makes the point that barristers rarely bellyache about the introduction of new legislation because it means more jobs for them and more loot in their pockets but, unusually on this occasion, a very large number of barristers have objected. He mentions the fact that some improvements were made to the Bill in the Dáil but none will be made in this House. That is a shame. He also points out, as I have already indicated, that the English model is not being completely followed. He states:
Curtailing the right to silence has been defended by the Minister by reference to similar changes introduced to the law in England in recent times. However, in his proposals he has failed to introduce the strong protections of the right to legal advice which have been incorporated into the English measure.
He goes on to state, what I believe, that the justification of it being an emergency response to the gangland slayings, which we all deplore, raises other questions. If it is an emergency response, why is there not provision in the legislation for a review by the Oireachtas? Why does this emergency legislation last for one year and then to be reviewed by the Oireachtas? That is very unsatisfactory.
I would like to turn to some other questions of principle. Under the Constitution judges are appointed to administer justice. They are not supposed to be a rubber stamp but this Bill will have that effect, at least to a certain extent, for example when they are asked to extend detention by a period of five days. This is done on the opinion of somebody. An opinion is given evidential status. That is very worrying. There are also situations where, for example, the opinion of a garda cannot be properly tested. It becomes evidence, therefore, without being properly tested.
I turn to two briefing documents by which I have been impressed. The first one is from the Irish Council for Civil Liberties, which expressed considerable concern about the way the Bill is supposed to attack gangland crime and points out that a series of eminent barristers, including nine senior counsel and the law society as a group have called for the adoption of the Bill to be postponed until it can be fully debated. In other words, it is calling for the Bill to be postponed. I join that call. In the dying days of this Parliament and in the run-up to an election, this complicated material is being rushed through without any proper scope for full examination.
I can point again to the situation that arose with regard to the statutory rape case. Legislation was rushed through the Houses. The Minister said he did not want to rush it through but the Joe Duffy programme essentially forced him to do it, and he regretted it. He had cause to regret it subsequently.
I will vote against this Bill because it is bad legislation. It does not address the principle. The only way to do that is to examine the drugs problem. There is only one way to resolve that and it is not with the so-called war on drugs. It is to legalise, monitor and quality control drugs. I recognise this is a very serious problem and it must be done internationally. That is the only way. I can guarantee this Minister, the other Ministers in that Department and everybody else that we will be back here in a year's time and the situation will not have improved one iota but people's civil rights will have been eroded in a serious way.
Crime prevention orders are rather like the anti-social behaviour orders. They have the same effect, that is, people can be found guilty of an offence and jailed for conduct which is itself not a criminal matter. That is very worrying. Again, we are copying the United Kingdom in that regard but this whole area has been extensively debated in both Houses of Parliament, unlike the situation here.
On the seven days' Garda custody, the ICCL's position is that it be withdrawn pending further debate. It quotes the Council of Europe's committee on the prevention of torture which states:
... seven days in police custody without a charge is a long period of time. ... prolonged periods of detention of criminal suspects on police premises can lead to high-risk situations.
We had the Dean Lyons case, the whole episode of the Morris tribunal and so on and, as a result, it is recommending that this also be withdrawn.
Another point that worries me is the cavalier attitude of the Minister towards the status of commissions, review groups and reports. He quotes, for example, the balance in the criminal law review group and an interim report on the right to silence but the head of that group, who I believe is a member of his party, and a very distinguished lawyer, Gerry Hogan, has made it clear that it is an interim report and its conclusions are not definitive. Again, the Minister is rushing ahead even of his own colleagues. That is very worrying, particularly coming from a man who has a fine legal brain and is a senior politician.
I have many concerns that are shared by the ICCL. They are also shared by the Irish Human Rights Commission, chaired by a former leader of the Opposition in this House. In the background to this document, in rather coy terms, it expresses its concerns. It states, "The IHRC considers the limited time-frame within which the Criminal Justice Bill 2007 is being brought forward to be unfortunate". That is very diplomatic language but it is clear it is very dissatisfied. There is a certain ring to the word "unfortunate". It further states, "Desire to change the law should be balanced by the need to discuss, analyse and reflect on provisions which involve a significant restriction of long established rights". That is what we are doing — the right to silence. It also indicates that it is having great difficulty in responding, due to the shortage of time, and that the bail law in particular should be reviewed with considerable care.
The right to silence is one of the fundamental aspects of our law. The IHRC indicates that, under sections 26, 27 and 28 of the Bill, circumstances in which inferences may be drawn must clearly call for an explanation from the accused. Grehan said in his article that this is a fundamental safeguard but it should be strengthened in the Bill. The IHRC's belief and mine is that inferences should be drawn only where the accused failed to give an account or mention a fact which he or she could reasonably have been expected to mention in the circumstances at the time when he or she was being questioned.
It stresses a point made in the article I quoted from The Irish Times that although there is a parallel here with an English situation, and human rights have been eroded under Mr. Blair in Britain for some time, nevertheless, they at least provide for the availability of strong pre-trial legal advice which is not done here. The Human Rights Commission also believes that the presence of a legal adviser should be provided throughout the interrogation.
There is also the matter of the seven days' detention. In 1984, when a similar Bill was introduced extending the powers of detention to 12 hours there was practically a riot in both Houses. It is now proposed to be at seven days and this is apparently being meekly accepted. That is a very serious curtailment.
Let us remember that people are innocent until proven guilty. There should be a sliding scale in many of these areas of legislation. None of these draconian provisions should come into operation unless, for example, certain criteria are met, such as a previous conviction. However, this could all come into operation in respect of somebody who has simply been accused of a crime. Again, I point to the McBrearty case. This case and the Morris tribunal are our track record, yet these provisions will give evidential standing to the opinion of a senior police officer.
Tagging might have certain attractions, for example, in the case of a serious child molester. I understand that very well. However, it relates to people on bail who have not been convicted of anything. This is a group of people who are considered to be innocent until proven guilty. In this situation, it is appropriate that this should only come into operation if the person has already been convicted of a crime. The basic concern here is, or should be, people who have a record of committing crime while on bail.
I am not sure that tagging somebody electronically when he or she has never been convicted of a crime and is presumed innocent is constitutional. I am also unsure that it is in accordance with the provisions for the right to privacy and bodily integrity in the European Convention on Human Rights because a chip must be inserted. We should think about that. I wonder if anybody in this House has been thinking about it because things are very quiescent around here. This is somebody who is innocent and will have a quasi-surgical procedure performed upon him or her before he or she is convicted of anything. I wonder where we are going with all this.
I will return to the right to silence and examine what the Irish Human Rights Commission, IHRC, has to say about it. The commission makes it clear that the right to silence is one of the fundamental elements of our justice system. It states:
In 1935, Lord Slankey in the House of Lords described the presumption of innocence or the burden on the prosecution to prove the guilt of the accused as a golden thread that runs through the web of English criminal law (and thus the common law). The Irish courts have given them constitutional status by stating they are essential components of the right to a trial "in due course of law".
The European Court of Human Rights has stated that under Article 6.1 of the European Convention on Human Rights, "the right to silence and the right not to incriminate oneself, are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6". There is much to be worried about.
I have not gone into all the technical details because there has not been time to do so. There has not been time to study the Bill properly and to make the kinds of interventions I would like to make. There is enough here to indicate the very serious concerns people have.
I am not on the side of criminals. I am on the side of victims and see nothing here for them. I simply see a desperate election shot by a Minister who is concerned about the fate of the Government.
I wish to make one final point because this is already in operation. I am raising a matter on the Adjournment about which I am very angry. It concerns a perfectly decent young man from a north African country whose brother lives here. Both the young man and his brother are architects. Their family is here and he has been accepted as a refugee. He applied for naturalisation, was denied it and told he could appeal it if he gave the grounds for the denial. He was refused the grounds for denial. This is Kafka. This is the world of Joseph Stalin and the Gulag. It is crazy stuff. Yet this is what is contained in this Bill.
In a recent article the former Attorney General, John Rogers, states:
Reliance on opinion evidence in such an application gives rise to the question of how gardaí have arrived at such opinion, and inevitably this will lead to an answer wherein gardaí will say they are relying on intelligence in respect of a source for which they must claim privilege.
In other words, "We won't tell you". One is not given the right to defend one's good name. That is crucial. The article goes on to state, "so the judge will be left to rely on an opinion, the validity of which the judge cannot test or examine in any meaningful way".
This Bill is a disgrace although it may do some good things. The way in which it has been rail-roaded through this Parliament is also a disgrace. I will call for a vote on it and will vote against it.
I welcome the Minister of State to the House and I also welcome the opportunity to say a few words about the Bill. I congratulate the Minister on the introduction of legislation which I believe will strengthen the hand of the Garda and all those involved in implementing and upholding the laws of the land. I hope it will also bring about a situation where the modern-day gangland boss will no longer get away with a derisory or inadequate sentence, as has been the case in the past.
Without doubt, we have seen an unacceptable level of gangland murders, particularly in the city. I understand that in 2006 there were something like 26 gangland murders. Some would say that some of these murders are gangsters shooting gangsters and many people would not shed too many crocodile tears. However, murder is murder and is something that one cannot allow to continue in a civilised society. For that reason, I support the Minister and the Bill and believe it will strengthen the hand of the Garda and the DPP.
The Bill also sends a clear message to anyone who wants to hear it that we, as a society, are no longer prepared to stand aside and allow these people to wreck communities. Something must be done. I know some are saying that the introduction of this legislation is tough, to which I reply "So what?" In my opinion, it is necessary. I know some of the brains in the Law Library have been exercised about this, but I believe we need to do something to bring about a situation where people think about what might come down upon them from the law before they act.
One cannot have a situation where an individual can walk into a house and gun down his intended target and a poor innocent victim on the way out knowing there is a strong chance that he will not get caught and if he does get caught, he will get a derisory sentence. This is something that, hopefully, this Bill, when enacted, will put an end to.
In some respects, we find ourselves in this situation because, in some instances, the Judiciary has failed to carry out its work. Individuals who commit a crime should receive a sentence commensurate with the crime. This does not happen in every case. We have seen many examples of that. It appears that, in some instances, judges trip over themselves so as not to impinge on the criminal rather than give fair play to the poor victim.
There can be no justification for allowing individuals who have been responsible for numerous deaths through the trafficking of drugs in this city to walk away with a suspended or very light sentence, as has been the case. Individuals who have committed rapes have walked free from court, which is outrageous. We can only imagine the hurt and anger that must well up inside any poor woman who has been raped and the devastation that causes her. Her dignity and integrity must be in tatters as a result of that. None of us can even think about what it must do to a woman to witness an individual walk away from court as a result of this.
In one instance, this happened because the judge had his hands slapped by a higher court in respect of a previous conviction and he was not prepared to suffer the embarrassment of that happening again. This is no way to run a judicial system. We read in a newspaper this morning that the numbers of reported rapes in the first quarter of the year have fallen. The Minister has shown his concern about this, as has the Rape Crisis Centre. It would be wonderful if the figures had fallen for the right reasons, but we suspect they have fallen for the wrong reasons. Sexual assaults are not being reported because people feel that in doing so, they will not get due recognition. They are afraid of the aggressive cross-examination that is promised and, for that reason, they will not do it. We find that the number of such reports has decreased in the first quarter to 199 compared with 393 in the first quarter of last year. That is serious and we must do something about it. When we compare that with sentencing someone to a year in prison and a €75,000 fine for fraud, we must ask where is the consistency in sentencing. There are mitigating circumstances in some cases, but the ordinary person must wonder about sentencing when he sees this kind of thing.
In his speech, the Minister of State outlined an agreed package which came into place last December and which I believe will have a positive effect. It promises to increase Garda numbers by another 1,000 to bring them to 15,000. It promises to sanction 300 additional civilian administrative posts as well as seven senior administrative posts. Coupled with the Garda Reserve Force, that will play a vital part in bringing about a better society. I welcome the strong commitment to the witness protection programme, as the Minister of State said unlimited funds were available.
We should be measured in our comments when talking about this because we should not give the impression that crime is out of control. That is not the case. With the increase of 600,000 in population, the crime figures are down from 28.5 per 1,000 to 24.5 per 1,000. It was stated in this morning's newspaper that there has been a big decrease in recorded crime in almost all major categories. There was an overall fall in serious crime by 5.6% for the first quarter and an annual drop of 2.2%. Homicides were down by 28%. Thefts, which account for more than half of all headline crime, were down 5.6% for the first quarter and burglaries were down 17%. Both were down 1.5% and 12.6%, respectively, for the year. This tells us that crime totals have fallen consecutively in the last three quarters and we should be pleased about that, although nobody denies we still have a serious situation. It is good to see the figures going in the right direction.
It is also important that gardaí are suitably equipped and resourced. They also need to be well managed and run. That has received attention in recent times and it is welcome. However, I also believe that the Garda Síochána has a job to do in regaining the confidence of the public. In my opinion, the force does not have anything like the respect it had 25 years ago. Members of the force must ask themselves why that is the case. If I were to ask any individual aged between 16 and 40 what he or she thought of the Garda, I think I would get a negative response in many instances. It may be unjustified, but that is the response I would get. I have spoken to many youngsters and some see the Garda Síochána as opportunistic.
Anti-social behaviour infuriates the public more than anything else. People sitting in their homes hear about murders and they are shocked, but anti-social behaviour is the crime that most affects individuals in their communities. Many of us have gone to meetings in our constituencies and have listened to elderly people and parents of young children who are frightened of leaving their homes because gangs congregate outside. They cannot even go to the shop for a bottle of milk because of the fear factor. It is an area that does not receive enough attention. Many people will not report anti-social behaviour because they feel that gardaí will not come out until the following morning as they are busy doing other things. However, it is an area which exercises the fear within communities. That is almost more important than chasing down crime because it affects all the population.
I compliment the Minister of State for introducing this Bill in the House. It has gone through the other House and I wish it well in this House. All the elements of the Bill will assist in the fight against crime.
I wish to speak about the issue of the seven-day detention, which was raised by Deputy Howlin on Report Stage of this Bill in the Dáil. As the time allowed had elapsed, he did not get a chance to elaborate on it. The Irish Human Rights Commission raised the issue in its submission on the Bill and made it one of the four key areas causing concern for human rights. The commission claims that it raises the possibility that Ireland might be in violation of its obligations under the European Convention on Human Rights. The commission stated that it is a most serious curtailment of a person's right to personal liberty which requires real justification. To make the Bill compliant with human rights, the commission suggested there was a need for a mechanism to be established so that when extensions for a period of detention are being sought, the grounds upon which a request is based can be properly explored before adjudication is made by the judge. Has the Minister dealt with that issue? Will there be any attempt to ensure there is a mechanism such as that which I have outlined?
There are many concerns about the length of the period of detention. Deputy Howlin wanted to table an amendment allowing for a 48-hour period of detention, but that was not possible at the time. The Irish Council for Civil Liberties maintain that the existing seven-day detention power in the Criminal Justice (Drug Trafficking) Act 1996 is rarely used. The council quoted from the Council of Europe's committee on the prevention of torture regarding that provision, which stated that prolonged periods of detention of criminal suspects on police premises can lead to high-risk situations. I would like to hear the Minister of State's comments on these issues.
I never thought in my political career that I would have to stand up and defend the Judiciary. My political view of the world has been about trying to look from the position of the underdog at their noble lords. They are not quite noble lords but sometimes they act like they were. However, our judges have done wonderful things over the years. One of them has been a vigorous defence of the rights of the individual. They have done this in the teeth of different Governments that have attempted to chip away at those rights.
Two things trouble me about this Bill. The first is its contents and the second is the certainty that most of it will make very little difference. We have been through this before. Anybody who has been a Member of the Oireachtas for some years has encountered a succession of such minor chippings away at issues, each of which, we are told, will deal with the problem at hand. All that happens, however, is that the problem redefines itself and we must confront it once again.
For example, I have been hearing about the problem of offences committed on bail since I entered this House 25 years ago. A succession of attempts has been made to deal with the issue. The fundamental problem, however, is that a person released on bail has not been convicted of the offence with which he or she is charged. I am confident that if a situation is created where a significant proportion of persons who would formerly have been released on bail are instead to be locked up, our courts will find there is a breach of their constitutional rights.
The reality is that persons released on bail have perhaps committed no offence. Even if they have committed offences previously, they have already been punished for those crimes. The idea that there should be restrictions on the movement of accused persons via electronic tagging because of crimes they committed previously will ultimately come under scrutiny by the courts. The Government cannot be certain of the outcome of that scrutiny. I accept that the Attorney General has advised that this measure is within the terms of the Constitution. However, Attorneys General have in the past been wrong as often as right in respect of controversial constitutional questions. I sometimes regret the decisions of the court, although I am sure they are magnificently, gloriously and sometimes even eccentrically independent.
I wonder what the Supreme Court will make of some of the provisions in this Bill, particularly that relating to seven-day detentions. The Supreme Court has laid down many tests in respect of lawful and unlawful detention and it has, for instance, deliberately inserted into the procedure for the detention of individuals provisions that are not available in the United Kingdom. People who are detained for questioning in that jurisdiction do not have the right to access a solicitor, make a telephone call or let their family know where they are. Accused persons in that country can be incommunicado for seven days. That cannot happen here, not because of legislative provisions but because the Supreme Court ruled that detention is not lawful where those types of basic rights are not upheld.
As Senator Tuffy said, if we are to detain people for seven days, we will run into all types of complications. I am convinced this issue will surface in the courts because there is an unfortunate tendency for emergency legislation designed to deal with specific cases to become the general rule for the way gardaí operate. I have seen the Offences against the State Act used against picketers who caused some disturbance outside a Fine Gael Ard-Fheis. The individual arrested under that legislation in this case was eventually paid damages by the Garda Síochána because there was not a scrap of evidence that she was a member of an illegal organisation.
The more powers that are provided, the greater the temptation to misuse those powers. Notwithstanding what the Minister of State, Deputy Parlon, said earlier, I am uneasy about the way in which retained electronic communications data are being accessed. I listened carefully to what the Data Commissioner had to say on this issue. It is the Government's obligation to respond to what he said rather than hiding behind the terms of reference of the judge who monitors all of this and who is not allowed to proceed as required. I have similar concerns in regard to Army intelligence, as I said before.
It is extraordinary that the records, which include fingerprints, of people against whom no charges are made will be retained. In such cases, the procedure will be that the Data Commissioner will have to be petitioned and he or she will decide whether the records should be released, after which the matter may be taken to the courts. Why, in a civilised society, should there be retention of the record of somebody who is arrested on suspicion but is not subsequently charged?
We are moving into a vague area in which people can be deemed to be half guilty or half convicted. It may suit propagandists of a silly type of law and order agenda to argue for such a system. A favourite argument of such proponents is that everybody is too much concerned about the accused and not sufficiently concerned about the victim. Such language effectively makes the judgment that the accused is convicted. The reality, however, is that an accused person is innocent. There are only two categories — innocent or guilty. Our law does not accommodate a halfway house between innocence and guilt.
That is why there is so much concern for the accused. I have been involved in the campaign for victims' rights for 20 years. There is an extraordinary hypocrisy on the part of State agencies and Governments of various hues which forever talk about the rights of victims provided it does not cost any money and which deliberately and consistently underfund voluntary organisations that try to help victims. It is just as well that the Criminal Injuries Compensation Tribunal was abolished. This peculiar State agency, the purpose of which was to compensate the victims of crime, hid behind a doorway, only allowing people to communicate with it through an intercom device at the door. Moreover, it would not allow forms explaining how claims could be made to be distributed in Garda stations, post offices and so on.
Nobody seems willing to address the issues that most concern victims of crime. Interest is aroused from time to time when the tabloids call for actions that are only a step away from vengeance. We must be careful as a society that vengeance, or any form of retribution, does not become part of our criminal justice code. We must learn the way of looking at issues that was epitomised by a late and great Member of this House, Gordon Wilson. This is the capacity to realise that the only way one can move on from horrific crime is by moving on from seeking eternal retribution. We must be careful not to become involved in a rhetoric of vengeance.
I am extremely uneasy about the lack of debate on the profound change proposed in this Bill, which is to allow accused persons to be detained for seven days. I reiterate my view that we will have to rely on the courts to adjudicate on this and other provisions, such as that which attempts to force judges to impose sentences they believe are wrong, and that they will probably find against them. There is judicial freedom to make decisions in these areas, either by making interpretations of the Constitution or by asserting the absolute right of the Judiciary to be independent of the Oireachtas.
I welcome the Minister of State but not this Bill. Society has changed significantly in the last 15 years. When I entered this House, the Internet and other new technologies were unheard of and opportunity for foreign travel was limited. If gangland crime existed 15 years ago, it never attained anything like the prominence it currently enjoys.
Like all decent people, I am appalled at the phenomenon of gangland crimes that has swept across the nation in the last ten years. Not only is the speed with which it has gathered force shocking but also its intensity. The perpetrators of these crime seem a law unto themselves and have no hesitation in dispensing their rough justice to anybody who crosses them, including innocent bystanders. All decent people want this phenomenon to end or at least to be brought under some degree of control. I, too, want it urgently. However, there is a world of difference between doing something about a problem and doing anything about it. It is with regret that I say that it looks as if the framers of this Bill have failed to appreciate this vital difference and make the distinction between doing something and doing anything. Anything simply will not do by way of a response to this pressing national problem.
There are 64 pages in this Bill and almost every one of them is stuffed with provisions of one kind or another. Some of the proposed measures are unquestionably a good idea and are not contentious. I have no problem agreeing with others but they need to be discussed carefully and their implications fully teased out. Some measures are so wide-ranging that they should be enacted after a process that goes a great deal further than mere discussion. These measures should be enacted only on the basis of a broad consensus among those who operate the criminal justice system daily.
The sheer length of the Bill is in itself sufficiently good reason to avoid rushing it through the Legislature without full and proper debate. There is another pressing reason for not rushing it. It is a criminal justice Bill which seeks to regulate some of the most important interactions between the State and its citizens. There is an extra duty on the Legislature to take particular care with the scrutiny of a criminal justice Bill.
The corpus of criminal justice law has been built up over many generations. It represents a type of social contract between the State and its citizens. With the passage of time and as circumstances change, it often becomes necessary to adjust the fine detail of that contract, as we are attempting to do here today. We should always do so very carefully and only embark on change when we are certain that it is change for the better. How can we be certain it is? Fortunately, we have many more sources of wisdom than those found within the walls of the Department of Justice, Equality and Law Reform. The daily operation of our criminal justice system involves a vast number of professionals in different fields, all of whom have experiences to share and who deserve to have their input carefully considered in any change we make. Was that reservoir of expertise availed of in this instance? The answer is "No". Not only was it not availed of, the legislation has been doggedly pursued in the face of an unprecedented opposition from these experts in the criminal law system.
As Senators Norris and Ryan stated, they are appalled, as I am, at the indecent haste with which this Bill has been steam-rollered through the system. We are fond of saying that rushed legislation is bad legislation and we have abundant evidence to back up that proposition. Sometimes, however, rushed legislation is made necessary by circumstances and we have to take the risk of getting it wrong. We have had incidents of that in the past year. However there is no possible reason for the haste with which the Bill has been dealt with. The problem it seeks to address is urgent and so is the need to get the correct response. It has been said that the reason for the haste is an electoral one. The Minister, his party and the Government of which they are a part may feel better equipped in facing into a general election if they can point to an Act such as this one and state it is already on the Statute Book. I hope that is not the motivation, not least because I doubt if such a cynical approach to the electorate would work,. The public is well capable of seeing through an attempt to pass off a Band-Aid as a cure.
It has also been said — again I hope this is not so — that this Bill is a personal crusade by the Minister, whom I admire greatly, because he feels that another Minister might not feel so strongly about it and therefore he is determined to see it into law before he leaves office, voluntarily or not, as the case may be. Whatever the reason, we are faced this Thursday afternoon with a Bill that is being rushed through the House. It should not be rushed through because it needs long and careful consideration and deep discussion.
A criminal justice Bill should only be enacted on the basis of a consensus in the criminal justice system on the proposed changes being made. I believe that no attempt has been made to reach such a consensus. I cannot conclude other than that the Government's persistence in pursuing this Bill in the dying moments of its mandate is nothing short of an abuse of power. The Government has the power to see this Bill into law. That will not alter the fact that it should not do so if it had the proper respect for our democratic system and the institutions of the State. I urge that we give this Bill the attention it deserves. I was glad to see that our colleague, Senator Maurice Hayes, tabled amendments. If the Bill is to.be passed, I am glad we will have discussed amendments to it on Committee Stage.
I thank the Senators who contributed to the debate. I am especially grateful for the thoughtful and insightful nature of many of the remarks. The comments made and issues raised have been carefully noted by the officials and they will be brought to the attention of the Tánaiste. As was mentioned at the outset of this debate, this Bill is very wide in its scope but it can be best understood when considered in the context out of which it has emerged and the objective it seeks to address, namely, the unacceptable activities of organised gangland crime.
In so far as the Government is concerned, the threat posed by these activities needs to be tackled at several levels. Legislation is certainly important in so far as it will overcome legal impediments that may exist and will generally ensure the law is updated to match the changing nature of crime. Good police work is also clearly essential. Good police work requires not only skill and dedication but also resources and manpower. It also requires patience and long-term commitment to the task. It will have been clear from my colleague's opening remarks that this Government has invested heavily in the Garda Síochána and will continue to do so, not only by means of general increases in staff, equipment and other resources but also through special programmes such as Operation Anvil.
I congratulate the Garda on the success of last weekend's operation in Cork when a very significant weapons seizure took place. I know I speak for the whole House when I say that was a most welcome and significant achievement. I will not comment further on that case other than to say it surely removes any doubt there might be about the ruthless and frightening nature of gangland crime.
Legislation and Garda resources are but two elements in the fight against gangland crime. I remind people that we can all play a role, not only by co-operating with the authorities but also in our own lifestyle choices. Many people, often our best and brightest, but perhaps without realising it, make it possible for gangland activity to persist and expand. People who engage in what they see as occasional or recreational drug use or who are prepared to buy goods without asking or caring where they came from contribute significantly to the gangland threat. Those people make gangland activity profitable and worthwhile. They allow it to spread and gain hold throughout the country and in all strata of society. It is not enough that we condemn gangland activity. We must also ensure we do not contribute in any way to its continued existence. People should have no doubt in their minds about the major role they can play in defeating organised gangland crime. They also should reflect for a moment on the situation that could exist several years from now if we fail to mobilise to face this threat.
The Bill will enable law enforcement agencies to confront much more effectively the threat posed by criminal gangs. As a result, the prospects of successful investigations and prosecutions are enhanced by extended detention periods, new arrangements for taking and retaining samples, new clarity about the law on the drawing of inferences from a suspect's silence, new powers to deal with possession of cash or articles intended for the commission of an offence, new arrangements for taking statements by electronic means, and restrictions on access to tapes of interviews. It will also be possible to mount more effective challenges to bail applications. In addition, there are several useful technical improvements to the operation of the bail laws that will address concerns about non-collection of forfeited bail moneys and other operational matters.
The courts will have more powers to deal with repeat gangland offenders, including post-release supervision arrangements. It is important to note that two types of order are being proposed. One order will protect victims and other vulnerable persons by limiting or prohibiting access or contact. The other order will enable gardaí to monitor the offender, establish whether he or she is likely to re-offend, and build up intelligence on gang movements and membership. Further clarity is provided on the circumstances where the minimum mandatory sentences for drug trafficking and firearms offences are to apply. I remind the House that all powers and changes in the Bill are in addition to the successful legislation already in operation to deal with the proceeds of crime and the confiscation of illegally acquired assets.
Concerns were expressed that the measures we are enacting could impact unfavourably on the personal rights and freedoms of people who have nothing to do with gangland crime. Much of the concern may have arisen because the target group — namely, gangland criminals — is difficult to define in legal terms and therefore there is a fear that measures directed at that group may impact unfavourably on others. I agree that "gangland crime" is a difficult thing to define, given the obscure world in which it operates and the unstructured nature of the gangs. Nevertheless, we can all recognise gangland crime when we see it and we have no difficulty in distinguishing between it and other crime.
It is right to be vigilant about any such unintended effects. The Tánaiste has paid serious attention to the views expressed by a range of bodies and individuals. As a result, he has amended the Bill not only to ensure it was more clearly focused on achieving its target, but also to ensure the scope for unintended impacts was reduced in so far as possible. This was done, for example, by reviewing the scope of Schedule 2, the addition of a subsection to section 25 that gives the court discretion in the application of mandatory sentence provisions for repeat offenders and raising the threshold in that section which triggers the imposition of the mandatory sentence provision for repeat offenders. In addition, an amendment makes clear that the expression of an opinion by a chief superintendent in bail cases does not interfere with the ultimate discretion of the court in deciding whether or not to grant bail. As a result of those and other changes, the Bill is more tightly structured, with a clearer focus on its main target — the gangland criminal.
There are occasions when we are all rightly concerned for the health of our democracy when we see the excesses of organised crime. However, the debate on this Bill both within and outside the Oireachtas demonstrates a lively interest in constitutional and legal affairs. It also demonstrates a clear conviction that what happens in this and the Upper House does matter. We can take heart from such a strong belief in the role and relevance of the Oireachtas regarding our rights and freedoms. I am also reassured by the strength of civil society and by its sense of public duty, which all amounts to a healthy democratic balance.
I thank Senators for their contributions and assure them that their comments have been well noted.
The Seanad Divided:
For the motion: 21 (Eddie Bohan, Brendan Daly, John Dardis, Geraldine Feeney, Liam Fitzgerald, Camillus Glynn, John Gerard Hanafin, Brian Hayes, Tony Kett, Terry Leyden, Don Lydon, Marc MacSharry, Paschal Mooney, Tom Morrissey, Pat Moylan, Labhrás Ó Murchú, Francis O'Brien, Ann Ormonde, Eamon Scanlon, Jim Walsh, Diarmuid Wilson)
Against the motion: 4 (Mary Henry, David Norris, Feargal Quinn, Shane Ross)
Tellers: Tá, Senators Dardis and Moylan; Níl, Senators Norris and Quinn.
Question declared carried.