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Dáil Éireann debate -
Tuesday, 21 Jun 1994

Vol. 444 No. 1

Private Members' Business. - Criminal Justice Bill, 1994: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

During my contribution last week I expressed the view that we concentrate too much on measures to deal with the consequences of crime rather than preventing it. Before the adjournment of the debate I spoke on the section of the Bill dealing with remissions and the suggestion for a register of temporary releases, commutations, remissions and so forth. I said this would unduly interfere with the rehabilitative process which is part and parcel of the temporary release programme and the management of offenders by our prison system.

I welcome the commitment the Minister gave in her speech to prepare and publish a strategic plan for the management of offenders generally. I also welcome the fact that the Minister accepts the need for, and is open to the idea of, proper statistical analysis and the publication of statistics in relation to temporary releases in general and the treatment of prisoners. Often we get a very distorted view of what exactly is happening in our prisons and in relation to release policies. We hear of the dramatic cases, the story about the person being released prematurely but, from my discussions with prison governors and from my own involvement in a number of cases, many of these headline grabbing instances are the rarity rather than the norm. It is not as easy to get out of prison as we are led to believe.

It is unacceptable to have a public register of temporary releases or to publicise the names of those who are given temporary releases, whatever the reasons for those temporary releases. It would unduly interfere with the rehabilitative process. Many temporary releases are carried out in consultation with the Probation and Welfare Service. There can be many genuine compassionate reasons for temporary releases and for releasing prisoners. The process of trying to reintegrate prisoners into the community on their release must be taken into account. If we want people to turn their backs on crime, there should be some stage at which we allow them a fresh start without having to let everybody know exactly why they are being released and what their crime was. This section of the Bill is insensitive and unacceptable in that respect.

In relation to the question of petitions, I am concerned about the trend in Irish political life to try to take the politician out of most decision making. The view is sometimes expressed that if politicians are involved it must inherently be wrong. Political involvement is labelled as interference, or almost as corruption. We witness the proliferation of boards, authorities and groups the purpose of which is to take power away from democratically elected public representatives. The cornerstone of any democracy is that the public representative is there to articulate and implement the will of the people.

There seems to be a view abroad that the best thing to do with the system now is to take the politician out of as many areas as we can. This area of petitions is such an example. We could argue that if we left the judicial system totally to its own devices in many respects we would have chaos across the country. There would be many people in gaol who should not be there. As I said last week, there is an urgent need for reform in the area of people going to gaol because of their inability to pay fines or simply because they, as social welfare recipients, do not have the capacity to pay the fines. We have all had experience of such cases. In one case an illiterate gentleman was summonsed; he ended up in gaol. That was totally unnecessary. That case could have been dealt with more satisfactorily had social services intervened at a preliminary stage.

I have had a number of cases where petitions have been sought on genuinely compassionate grounds. The petition system is legitimate. The Executive's power to remit penalties is provided for in the Constitution. We should have confidence in the democratically elected Government of the day to administer that petition system in good faith, in the best interests of the public good and of the community at large. I oppose the section of the Bill that envisages publicising that process. That is an unacceptable invasion of privacy. The petition system has been used to good effect in some areas and, by and large, it is not abused. However, it highlights the need for reform in certain areas of the system and of our law.

We need a more integrated approach to crime. We can think up all the penalties we like, we can talk about reforming the prison system, but we should aim at a system that tries to reduce the number of people who go through the gates of a prison in the first place. We lack an integrated approach to crime. The focus has been wrong. There should be full involvement of all the agencies of the State — the local authorities, the health boards and the Departments of Health, Education and Justice.

For many years those who designed local authority housing estates did not take crime into account. Many of the design patterns of local authority estates are such that those estates have become havens for crime and have facilitated criminals and theft. When did we ever see the Garda, local authorities and architects coming together to look at the design of our cities and housing estates from the perspective of crime? We have never looked at it from that perspective.

The same applies to education, drug intervention and prevention programmes at primary and second levels. The curricula are hopelessly devoid of any proper uniform drug prevention programme and alcohol and substance abuse programme. I rest my case.

I must confess I only glanced through the Bill and have not analysed it in detail. Our position is clear. We believe this is a comprehensive Bill and I congratulate the proposers for having gone to the trouble of producing such a worthwhile Criminal Justice Bill.

This is a comprehensive Bill which deals with complex and difficult areas. It provides for change in the law and deals with access to bail, a controversial issue. It places a major restriction on the right of accused persons to silence. It provides for changes in the manner in which persons who are mentally ill are dealt with by the courts, and their subsequent treatment. Some of the provisions may be more appropriate to the health area than the criminal justice area.

While we have reservations about some of the provisions of the Bill, I acknowledge that it is a positive and constructive contribution to the debate on badly needed reforms in these areas. The Democratic Left believes that the principle of the Bill should be accepted by the Government. At the end of Second Stage, the Bill could go to a special committee where its provisions could be examined in detail. By using Private Members' Time we do not have the same opportunity to tease out the issues as we would have if the Bill was referred to a special committee. That is where the serious work of teasing out the pluses and minuses of the Criminal Justice Bill could take place.

I want to refer to the section dealing with bail. Nobody is happy with the present situation where known persistent offenders are arrested and released on bail only to offend again. Steps must be taken to break that cycle because the situation is unsustainable. An ordinary decent citizen who may be a victim of crime or who may have witnessed a crime being committed sees these characters, who often have long criminal records, back on the streets after being arrested. This cycle must be broken.

The Bill sets minimum levels of bail for certain offences; it provides for the forfeiture of bail if an offender commits further offences while on bail. Although I was a TD for three and a half years, until recently I thought that when someone found a bailsperson, bail would be forfeited if that person committed a crime. I understand bail is only lost when the individual does not appear in court. That restricted use of bail should be extended to cover a wider area. We must ensure these changes make it more difficult for offenders to secure bail. We must also consider the implications of such a move, and that is where a special committee would be of assistance.

An article in The Irish Times of 16 November 1993, stated that if a significant number of accused are to be denied bail and remanded in custody pending trial, then in the present circumstances, the only certain result would be that prison cells would be emptied of those who have been found guilty, but who have not yet served their sentences, to make room for those who have not yet been found guilty and who may be acquitted. My colleague, Deputy McDowell, appreciates this because the author of that article is the author of this Bill.

I wrote that article.

Should we perpetrate the revolving door syndrome? What are the implications of restricting access to bail? Would prisons be emptied again to cater for those who may or may not be guilty? We must look at this problem. Given the pressure on prison space — an issue with which we are all familiar — we must be sure any changes in bail laws do not lead to the more frequent early release of offenders. As politicians representing taxpayers, we should be conscious of the cost of keeping people in custody — approximately £600 per week. That is a lot of money to extract from the PAYE sector in particular, which carries the heaviest tax burden.

As well as reviewing our approach to bail, we must look at the long delays between the initial charging of offenders and their subsequent trial. In some cases this may take up to two years or more. That is unsatisfactory, although this process is not as long here as in other countries. In France, for example, there is a long delay between the time of arrest and incarceration and when one appears before the Judiciary. However, it is unacceptable for the victim or the perpetrator of the crime to wait two years or more. The X case happened some time ago — I did not check the record to see how long — but only recently came before the courts.

Measures must be taken to reduce long delays. Additional judges should be appointed. This would help break the cycle. Extra resources should be allocated to the Office of the Director of Public Prosecutions and the criminal legal aid system. Additional courtrooms should also be built. The delay between charging a person and their trial should be reduced to a number of months.

Steps should be taken to stop offenders using procedural tactics to secure delays. It is sad that the more hardened, successful and professional the criminal the better the legal advice he has access to. The cycle where the criminal uses the best brains in the business to use procedures to delay their appearance in court must be looked at.

In my constituency a young man was knifed to death. We must do something for those who have been mugged, physically assaulted or whose homes have been broken into. Although arrests are made and people appear in court, they are back on the streets — particularly in working class areas — often taunting their victims. The victim fails to understand what is happening in the judicial system when someone who has committed a major crime, including murder, manslaughter, a break-in or an assault, is back on the streets so quickly. This is demoralising for victims.

Section 11 of the Criminal Justice Act, 1984, provides for the imposition of successive sentencing for offences committed while on bail and for stiff penalties for the person who fails to turn up for trial when on bail. These powers are rarely used. Perhaps the Minister could tell us why certain provisions in the legislation are not being imposed. The area of bail needs to be looked at and the measures in this Bill are worthy of careful consideration. It is wrong to consider the right to bail as the solution to our crime problems. Other countries which have more restrictive laws on bail, have more serious crime problems than this country.

Apart from unemployment, there is little doubt that the biggest social problems in urban areas are crime and vandalism which subject communities to intolerable terror. That is the reason we support this Bill. As the Minister knows, this is a common problem in many areas, particularly in Dublin. Statistics show that almost half of all reported crimes occur in Dublin where less than 30 per cent of the population live. It is now more common for people not to report crime, particularly muggings, handbag snatches and car break-ins. Because people do not bother to report such crimes, the crime levels are substantially higher than the official statistics show.

The Garda's response is terrible at times. Perhaps some gardaí should do a PR course. This is not a direct attack on the Garda, but if a house is broken into, it seems to take an eternity for the fingerprint detectives to arrive. People often feel that a serious effort is not being made to chase the criminal responsible for breaking into their homes. There is a lack of feedback from the Garda about the progress being made. This matter should be addressed, people should be reassured that the Garda are pursuing the criminals. For example, my daughter's bicycle was stolen outside a shopping centre and she reported it to the Garda Síochána. She was told the bicycle would be on the boat to England in a couple of days. This is a negative attitude. If the Garda is there to catch criminals, it should try to catch them instead of dismissing the crime as one which cannot be solved.

The level of reported crime in the Dublin metropolitan area is seven times higher than in some rural Garda divisions. However, what is of greater concern is the poor level of detection in the capital. This is disturbing. The detection rate in three of the four Garda divisions is less than 30 per cent compared to more than 50 per cent in some rural areas. Crime pays because 70 per cent of crimes go undetected. That is an incredible indictment of the present system. This means that if one lives in Dublin one is more likely to be a victim of crime and the criminal is less likely to be brought to justice.

The small minority involved in crime are making life a misery for the majority of honest law abiding citizens. The muggers and assailants have made the simple pleasure of a walk through the city centre at night a thing of the past for all but the bravest. People will not go into certain areas of the city now. For example, glue sniffing, drug abuse and vandalism can now be seen in our public parks. Many public parks have removed the amenities and facilities for children because of vandalism in the children's play centres.

The sense of community in many working class areas is being eroded as families become prisoners in their homes due to the activities of teenage gangs. Everyone knows, particularly politicians who knock on doors looking for votes or who try to communicate with the electorate outside election times, that once dusk falls it is difficult to get a response to a knock on a door. Locks, grills and burglar alarms are now a common sight; at one time it was the key in the door. I grew up in Harold's Cross where we lived in great poverty. However, there were few robberies. Not only was the key left in the door but the door was left open and neighbours could walk in. We exchanged milk, sugar and other necessities and if the door had to be shut, everyone knew the key could be got by putting a hand through the letterbox because the key was on a string. It is sad that doors are now fitted with Chubb locks, emergency lighting and burglar alarms. That is how Irish society has developed.

I want to emphasise the difficulties for the elderly, particularly in Dublin city. Elderly people are living in fear because they are vulnerable to attack by muggers and during break-ins. Anyone who has an elderly relative will know it only takes one mugging or one break-in to destroy their quality of life. I represent a constituency which has a large number of elderly people; it probably has the largest concentration of senior citizen accommodation. The houses in Crumlin, Walkinstown and Drimnagh were built in the 1940s and many elderly people still live there. It is sad to see people living out their last days in fear of leaving their homes or of opening the door to whoever may knock. This situation cannot be allowed to continue. The right to live in peace, free from the threat of attack, should be a basic right of everyone in society yet, it is one which many people do not enjoy.

There is no single solution to crime. Nobody, least of all the Progressive Democrats, Democratic Left or Fianna Fáil, has a magic wand. There is no instant or quick solution to this problem. Crime has its origins in economic, social and environmental conditions. It is no coincidence that the areas with the highest levels of crime are also those with the highest levels of poverty, the lowest levels of employment and the poorest housing and environmental conditions. The unfair distribution of income and work and the resources which are still a feature of Irish society must be tackled if a long term solution to crime is to be found. It is unacceptable to say to an old age pensioner who is being terrorised nightly that they must wait until the politicians solve the unemployment problem in order to be free from the scourge of crime. These people cannot wait. They require the Government of the day to put the resources into developing the type of society which would reduce the crime statistics.

Any theories about solving the crime problem require the dual approach of tackling the social and economic conditions, which contribute to crime, and improving policing methods and judicial procedures to give immediate relief to those under threat. There is a need for a substantial increase in the number of gardaí on the ground in the areas worst affected. Prison sentences must not only offer an opportunity for rehabilitation, but they must be a deterrent to crime. It is not good enough to release juvenile offenders because there are no suitable places of detention. While early release, in some cases, is a worthwhile element in the rehabilitation process, releasing offenders who have served only a small part of their sentence to make way for other offenders who may need to be released to make way for more offenders, makes a joke of the judicial system.

The juvenile liaison officer scheme has been an outstanding and successful Garda initiative in recent years. It seeks to identify first time offenders and, rather than subject them to court and a possible prison sentence, it deals with them through formal caution and supervision. Those of us who are in contact with youth leaders, youth clubs and community activists, indeed, everyone who is involved with young, vulnerable people involved in crime regard it as an outstanding success. Yet, sadly, it is seriously underfunded and underresourced. More than 45 per cent of all those convicted of crime during 1992 were under 21 years of age, yet less than 1 per cent of Garda personnel are operating as juvenile liaison officers and the Minister should look at that.

Above all, the battle against crime requires the fullest possible co-operation between the public and the Garda. The extent of co-operation at present varies from area to area and can often depend on the attitude of senior officers in particular districts. There is a need for more formal structures to facilitate the co-operation needed to counter current levels of crime. I would like to see the establishment of local liaison committees made up of the Garda Síochána, local public representatives and nominees of community, resident and youth organisations. The committee would not have any say in the day to day running of the Garda but would be a source of advice and a forum for consultation between the police and the public.

I would record my deep appreciation to the Garda Commissioner. As a member of Dublin Corporation I proposed the establishment of a task force for a particularly problematic inner city community. I will not mention its exact location. After years of political experience and lobbying by residents for more police and better estate management by Dublin Corporation and lobbying for better services for drug abusers and addicts, I brought about a task force for this part of the south inner city of Dublin. It comprises members of Dublin Corporation's community development section, which has a key role to play, and its housing administration section. The task force also comprises the local director of community care for the Eastern Health Board and the residents' association of the area, it has permanent representation from the Garda drug squad and the local Garda based in Kilmainham.

The beauty of this task force is that everybody plays a key task role in addressing in particular, the problems of drug abuse, the bad environment and the way in which the social norms were breaking down, and in trying to rebuild a community base. I wish to record my appreciation to the Garda Commissioner, who releases to the task force each month the services of the drug squad and the local Garda in Kilmainham. I want to thank the city manager, who releases two and often three of his personnel for the monthly meetings. I also want to thank the chief executive officer of the Eastern Health Board, who also releases personnel who have busy schedules and could be otherwise occupied. They put their time and effort into our collective effort to try to resolve a particular problem in a part of the city.

I was at one of the task force meetings today and the lack of detoxification places and satellite clinics, the lack of access to methadone substitution for heroin and hard drugs and the lack of rehabilitation programmes to cover those drug abusers who wish to be rehabilitated is an outrage. Due to the lack of resources from the Minister for Health and the Minister for Justice hundreds of people in urban Dublin each week are being mugged, have handbags snatched and are physically injured in attacks, hospitalised and have their money and goods stolen. Some of these people will, sadly, die; elderly people are particularly vulnerable. Once they have been mugged or broken into the quality of their lives is destroyed.

I am so critical of the Government for the lack of detoxification places, satellite clinics, methadone substitution and rehabilitation programmes for drug addicts because there are about 5,000 to 7,000 drug abusers in this city. Each drug abuser who is addicted robs a minimum of £40 per day for his or her fix. Many drug abusers rob three times that amount, £120 per day, because they need three fixes to keep their high. Multiplying the 5,000 to 7,000 drug abusers by the £40 to £120 for their fixes shows clearly that hundreds of thousands of pounds, possibly millions over the years, is stolen in handbag snatches and break-ins. In many cases these drug abusers are on long waiting lists as they cannot get onto programmes. A drug abuser who wants to kick the habit cannot get into the miserable ten beds in Beaumont Hospital for detoxification — there is a huge waiting list.

The Minister should accept this Bill and accept that the crime levels in Dublin could be cut by bringing the proper services into being to facilitate the drug abuser who wants to kick the habit. By providing the services — the methadone substitution, the satellite clinics and the detoxification units — the crime levels in Dublin could be cut overnight. Would the Minister address the issue as to why we are unnecessarily penalising people whose lives will be ruined tonight by a drug addict who robs or mugs them, a drug addict who is one of the hundreds turned away from programes due to a lack of places? These addicts are pressurised by their families and their communities to kick their habit. They go to various satellite clinics and hospitals for detoxification. They try all of the agencies from the Eastern Health Board to the Department of Health and they are turned away. The Minister has a lot to answer for in this regard.

Deputy McDowell is to be congratulated for framing so comprehensive a Bill. It will be of assistance to the Minister in devising future legislation and the Minister for Justice has already indicated that this will be her approach in considering her legislation on foot of what is incorporated in the Bill under discussion.

We will have to grasp the nettle of the issue of the right to bail. The difficulty originated with a Supreme Court judgment, which is still law, that there is an absolute or basic constitutional right to bail residing in an accused person. No amount of thinking in regard to the amount of bail required or no amount of mechanical devices in legislation can get over the fundamental proposition of the Supreme Court judgment under the direction of the late Cearbhall Ó Dálaigh as Chief Justice. It has proved to be the wrong decision. A constitutional amendment would be required to rectify it. That is the only way we can approach the problem at this stage.

A constitutional amendment would entail that the matter should be within the discretion of the courts. The courts are there as a fundamental institution of our Constitution, embodying the separation of powers. It was the law, until the Supreme Court decision of the late Chief Justice Ó Dálaigh, that bail was at the discretion of the courts. It should depend on the merits of each case coming before the courts. A Supreme Court decision may interpret our Constitution as giving an absolute entitlement to bail to the individual in this case, but I see nothing contrary to basic Common Law and constitutional independence, as far as the individual is concerned, to make that right a matter for discretion for independent courts. It operated in this way before the Ó Dálaigh decision. The Constitution should be amended to bring us back to this position.

There is nothing negative as far as individual rights are concerned in this case. It rightly restores the discretion to the judge hearing the case. The judge, as part of an independent institutional framework of courts, can then decide on the merits of the case if it is not in the interest of the administration of law and justice to grant bail. That is a perfectly legitimate constitutional right. The weakness of the Ó Dálaigh decision is that it automatically restrains the courts to give bail for such cases, irrespective of their merits. No matter what is said with regard to what is legitimately put in as evidence by the State as to the likely behaviour of the defendant concerned as to the payment of bail, the judge must ignore it. The Ó Dálaigh decision says there is an absolute right to bail residing in such cases by either the applicant or his legal adviser. That is a fundamentally wrong way of looking at the Constitution. This can only be rectified by a referendum, which would restore that balance to the Judiciary. No amount of tinkering with legislation will rectify it.

This problem has been examined for a number of years since that decision was made. Various ways were suggested; there are even some in Deputy McDowell's legislation. The Minister is now asking the Law Reform Commission to come forward with its recommendations and I await them with great interest. After having looked at and talked about this matter, I am certain that no amount of tinkering can get over that fundamental difficulty. If one tinkers with it through legislation, one will run into another constitutional boghole. For instance, if one starts to make any differentation with regard to financial aspects, the judge may have the discretion to impose a higher financial bail level. That can be deemed to be unconstitutional as well. One is then differentiating between those who can and cannot afford to pay bail. The only way to deal with this matter is to restore the judicial discretion in the way it existed before the Ó Dálaigh Supreme Court decision. We can easily devise a constitutional amendment to meet that requirement. It should be done because everyone in this House knows the current situation is ludicrous and is being grossly abused.

I also wish to refer to what is proposed in section 54 of the Bill, which is in connection with the preliminary examination. I, as Minister for Justice, introduced the Criminal Procedural Act, 1967, which largely removed the preliminary taking of depositions. Until then, taking of depositions in every indictable case before the accused went for trial was an automatic procedure. This, of course, caused enormous delays. A book of evidence is now proposed but the defence have the right to a deposition procedure if it so wishes. It is not availed of to a great extent, but it is an anomaly that should be removed.

There is much merit in having preliminary proceedings taken by the court where the trial will take place. The case should be listed directly before the trial judge, who can have a preliminary hearing by his registrar, a court officer under his direction or by the judge himself to deal with these preliminary matters in the presence of both the defence and prosecution legal advisers. All of these preliminary matters can then be disposed of before the trial proper. The issues set down for trial are then stripped of any technical matters that can cause difficulties, delays, adjournments or unmeritoriously let the defendent go free through flaws in the indictment during trials.

These areas can be teased out in a preliminary process in the court where the indictable proceedings will take place and not in another District Court which would allow for further misunderstandings. That court should have, as a matter of automatic procedure, the right to refer the case to a registrar for a preliminary hearing in the presence of the legal advisers. These matters could then be removed allowing specific issues to be set down for the trial by the court. That is the spirit behind Deputy McDowell's proposal in section 54 and I agree with him. The Minister will have many considerations to take into account, but that proposal should be seriously examined. It would substantially expedite court hearings.

The right to silence should also be removed. It is a relic of an era that is no longer relevant. We want to see courts functioning effectively. While respecting basic freedom and the essential principle that a case must be proved beyond reasonable doubt, the rights of the accused would not be breached by deleting the right to silence. If a proper preliminary examination by a court officer of the relevant court takes place in the manner described and the issues are placed in the proper way before a judge and jury, the deletion of the right to silence would not take from the accused in the administration of justice in the trial in an equitable, fair and just manner. The reverse may even be the case. The right has been grossly abused in a number of cases.

The administration of justice is an evenhanded procedure. It is not only for the benefit of the defence. It also demands that society be protected. If somebody is accused of an offence against society of sufficient seriousness to merit an indictable charge, society is entitled to a say in the matter. In this respect, the right to silence is fundamentally flawed in that it does not acknowledge the right of society as being equal to the right of the individual regarding a criminal prosecution.

If a criminal prosecution is properly prepared by the Garda Síochána, properly considered in a preliminary manner by the court trial, properly conducted by the judge at the court of trial with his jury and properly undertaken in an evidential way, then fiat iustitiae, it is done in that way. It is justice, and the additional claim that a right to silence is a basic strength in the system of justice is wrong. It is founded on the wrong premise that every available avenue must exist to enable a person to escape who is guilty of an offence against society.

In this respect there are two legal concepts of justice under consideration — the right of society to punish for wrongdoing and the right of the individual within that framework to get a fair trial. The right of silence tilts the matter against society and towards the individual and it is not justified if the trial is conducted in a proper manner between a properly convened judge and jury.

Hopefully, the Minister will, as promised, introduce a comprehensive Bill at a later stage, because the proper administration of justice at every level is the central problem in our society at present. By every level is meant the Garda and the courts level, including civil and criminal courts level. There must be respect for the law in all its aspects, including its enforcement and administration. This entails reasonably speedy justice, which is seen to be done in a competent and effective manner, without any undue delay. To ensure this, more judges will be required at certain levels, both on the civil and criminal side. It also requires that there be fewer delays in bringing matters forward for trial, whether it be civil or criminal and that once cases have acquired a certain process, fewer adjournments.

Matters such as these bring the law into considerable disrepute. With the law in disrepute, a society has the worst of all possible worlds, because if there is no confidence in the administration of justice, both at the detection enforcement level and at the courts and judicial level, the heart and root of civilised society is endangered.

I welcome the Bill because it enables a debate of this kind to take place. I appreciate that the Minister is considering the matter in detail, as is the Law Reform Commission, which has seized on various aspects of these reforms which are so necessary. It is not a matter which can be side tracked.

I speak in the House primarily on matters of economics and foreign affairs, but the matter under consideration by the House this evening is more fundamental because it goes to the root of society and to the reason why society is organised: in order to protect our lives and positions and to protect itself. Unless that is right, nothing else can be right, and it is as fundamental and as real as that.

Is there a time sharing arrangement, Deputy Lenihan?

There is time sharing arrangement between myself, Deputy Costello and Deputy Eamon Walsh.

I compliment the presenter's of the Bill, Deputy Michael McDowell and Deputy O'Donnell, for the good work they have undertaken. It is a comprehensive Bill, covering a wide range of areas, and it largely focuses on the question of liberty, in terms of bail, the right to silence, pardons, remissions, temporary release, commutation, punishment and so on. The Bill also deals with criminal procedure and evidence, with accessory areas such as mental illness and infanticide.

On the issue of bail, a constitutional decision was taken, and a determination was made by the late Chief Justice, Cearbhaill Ó Dálaigh, that people could only be deprived of their liberty on two grounds, that they would interfere with witnesses or that they would not stand trial. Deputies McDowell and O'Donnell have suggested a novel way of getting around this constitutional impediment, which is not to propose a constitutional referendum on an amendment to the Constitution, but to include another condition which would be imposed on the person granted bail.

At present the only requirement on the person granted bail is that he or she turn up for trial, failure to do entailing estreatment of the bail. However, there is no requirement that the person granted bail be of good behaviour and not commit any other offence for the duration of the bail. It is therefore a reasonable proposal that this would be a condition under which bail could be estreated and that recognisance be provided.

The use of a constitutional amendment should not be regarded as a first option when addressing this matter, rather this suggested option should be considered. Given its pragmatic nature, it would have a good chance of success. In this respect Ireland probably has the lowest proportion of its prison population on remand. Part of the reason for Cearbhaill Ó Dálaigh's decision regarding bail, and the conditions imposed on the granting of bail, was the considerable length of time people were spending in prison awaiting trial. In this respect people were imprisoned for three, six, nine, 12 and perhaps 18 months awaiting trial.

This continues to be the situation in many European countries, such as France, where at least one quarter to one third of the prison population at any given time are prisoners who are not convicted of any offence but simply awaiting trial in the courts. In this respect I am more in favour of the approach taken by Deputy McDowell, to impose the condition of good behaviour in addition to that requiring the accused to attend trial, rather than taking the option of a constitutional amendment favoured by Deputy Lenihan.

On the question of remission, I applaud the proposals made regarding obtaining some kind of registration of people who are released early from prison. The powers exercised by the Minister for Justice regarding commutation of sentence, early and temporary release, are discretionary. It is appropriate that this be placed on a formal basis, which is made public through the publication of annual reports and so on.

In this respect the proportion of the sentence remitted requires consideration. This country is unique in that only one quarter of a sentence is liable for remission — in the case of a female it is one-third. Male and female offenders are not equal before the law. We should come into line with European countries where the norm is one-third. By so doing prison capacity would be increased by 8? per cent and the revolving door syndrome would be eliminated because it is based on discretionary decisions taken on the demands of the court at any given time. It is the result of an accommodation crisis.

Deputy McDowell might consider that if the Bill reaches Committee Stage. In Northern Ireland there is a 50 per cent remission. If a person is transferred to Portlaoise Prison and given certain duties to perform it is 50 per cent also. I would propose one-third.

I agree with the granting of free pardon. If the President grants a free pardon it should be deemed that no offence was committed. That should be specified rather than have what happened in the case of Nicky Kelly.

There is a novel proposal in the Bill about how to get around the question of a person not incriminating himself — instead of being interrogated by police the person would be questioned by a judge. I do not know if we can go down that road but it is worth examining.

I welcome the Bill. I hope the principles and sentiments contained in it are taken on board by the Minister and that legislation relating to many of them will emerge from the Department of Justice.

I congratulate Deputy McDowell on introducing such an interesting Bill covering a wide range of subjects. The lay person probably sees the law quite differently to a person involved in its administration. The Minister has brought forward a substantial amount of legislation in regard to drugs, laundering of money arising from drug dealing, the public order aspect of regulations and the road traffic offences which the Minister for the Environment dealt with.

There is a slim balance between what is needed to control public order and our rights as citizens. If we lean too far forward in either direction we could disrupt the intentions behind most of the changes proposed in the criminal justice system. On the question of bail, if we have a constitutional referendum and bail is curtailed I am certain that a substantial number of innocent people will find themselves in custody and it may be difficult to repair the damage caused. It is very hard to turn the clock back and say sorry to someone as they walk out the door. It would be more acceptable to penalise those who do not conform with the freedoms given to them under the Constitution. The thinking is that you may as well commit as much crime as possible while on bail because as you are to be sentenced for one offence the others will run concurrently. The courts should be empowered to deal with a person on bail in a more severe manner and impose consecutive sentences. I support the direction the Bill takes in that regard.

The right to silence is an important issue. It is easy to say that the system has gone too far in favour of the accused and the victim is the person who suffers. The right to silence is probably outdated but we must be very careful if we change it. In the case of young offenders it may be preferable to maintain the right to silence instead of them making statements which could be construed as having been made under pressure from parents, peers and so on. They may give the right answer to a question in order to extradite themselves from the situation. We have come a long way from the time the right to silence was introduced and we should move towards changing it.

As regards the question of diminished responsibility and the mentally ill, there is a case to be made for people who are high on drugs not being held responsible for many of the offences they commit. I am not saying the should be given a special concession because they are on drugs but some consideration should be given to the state of their minds when horrendous crimes are committed.

I agree with temporary release because one of the basic principles of our criminal justice system is to rehabilitate prisoners. What is a pardon? Does it completely exonerate one from the crime one is supposed to have committed? I would compare it to annulling a marriage — in the case of annulment, no marriage existed and if a pardon is given, no crime existed.

I compliment the Deputy for bringing the Bill before the House. The notion that rural Ireland is free from crime is far from true. There is a great deal of crime in rural Ireland and much of it goes unreported.

I listened with interest to Deputy Lenihan's contribution in the course of which he referred to the Ó Dalaigh decision in 1966. We have moved on since then and if the law does not realise that then it has been asleep. We have not kept up with the times and protected the people. Hard core criminals travel the country at will. They may be resident in Dublin and commit crimes in Cavan, Monaghan and elsewhere. Obviously people from the locality, spotters, tell them which houses are vacant. There is something wrong when people no longer feel safe in their homes.

Criminals continue to commit crime because they know they will not be dealt with properly under the law and sufficient places are not available for them in jail. The also know that people are afraid to report crime or to identify them because they will be back on the street within a week. Many old people in rural Ireland who have been robbed of their savings do not report these crimes because they are afraid they will lose their social welfare entitlements if the Department of Social Welfare finds out they had this money. I do not know if criminals are aware which people keep their savings at home but numerous houses have been ransacked and money taken; they are certainly not driving from Dublin to Cavan, Monaghan and other rural areas for nothing. I recently heard a story about a person on social welfare who lives not 100 miles from me who had £18,000 in cash with which to buy a car. One would have to ask where he got this money.

I wish to refer to the laws relating to bail, the central point of Deputy McDowell's Bill. I listened with interest to the points made by Deputy Lenihan on this issue. Many criminals on bail adopt the attitude that one might as well be hung for a sheep as a lamb and go on a rampage of crime. If they are sentenced to five years imprisonment they will be released after three years on the grounds of good behaviour. Why should they be rewarded for good behaviour? The reason they are released has more to do with cost than good behaviour? Someone said it costs approximately £600 per week to keep a criminal in jail. The State says it is worried about the cost to the taxpayer but no consideration is given to the victims of crime. Regardless of the cost, there can be no excuse for releasing on the grounds of good behaviour people who behave in a cruel and abusive way. Crimes of this nature were not prevalent some 28 years ago when Ó Dalaigh addressed the issue of bail in the Supreme Court. These criminals, for whom I have no sympathy, must serve their full sentence and judges should show no leniency towards them.

We have a core of hardened criminals and more and more young unemployed people are being brought into the system. They know they can make a few pounds from stealing a bicycle or motorcycle, but if there were no receivers there would be little point in stealing these goods. I have great sympathy for these young offenders, some of whose parents have visited me. Until recently this type of crime did not happen in my constituency but it is now widespread throughout the country. These young offenders who are in jail with hardened criminals are told that if they learn the trade they can do even better and will have a 70 per cent chance of getting away with their crimes. They believe it is well worth the risk if they can make a large amount of money.

Another reason given for the early release of prisoners is a lack of space — jails are clogged up and there is not adequate space for prisoners. The public do not accept this excuse from the Department of Justice. There is no reason proper provision cannot be made so that all prisoners serve their full sentences and prisoners are properly segregated. We do not have a very large jail population and it should be possible to segregate young offenders from hardened criminals, some of whom are household names and roam the country at will. Proper facilities should be provided to advise these young offenders and to prevent them mixing with hardened criminals.

Many people are amazed that every week the person on remand at present charged with committing a terrible crime is taken from jail to court, at enormous cost, merely for a judge to say that he is to be held on remand for a further period. People congregate at the court to which he will be brought to boo him as they are so angry with him. Why is it necessary to bring him to court every week? When a person has been charged with a serious crime it is a matter for the Department of Justice to bring him to court as soon as possible. I have no doubt that every effort is made to bring these criminals to court at the earliest opportunity but I do not understand the reason they have to be brought to court on a weekly basis at enormous cost merely for a judge to say that they are to be held on remand for a further week. This is nonsense. These people should be left in jail with those serious crimes hanging over them, so to speak.

When gardaí arrest someone and charge them with a crime they do not do so lightly. One is innocent until proven guilty but if it is a serious crime a judge should have sufficient cop-on — many of them do not — to put the criminal away and ensure he is remanded in jail until the court case. It is not right that a court case can be delayed for two years as sometimes a case cannot be proven and the person will have to be compensated for wrongful internment.

In the case of people who have been remanded in jail, their sentences start from the time they are remanded. This is nonsense, and the sentence should start from the day the judge pronounces sentence. If this were done criminals would soon realise that we are serious about applying the law. There was a report on television earlier this evening about a young lad who got four lashes of a whip for damaging people's property. He was very quiet and I have no doubt he will not commit a similar crime. The message got through to him. We need to get a similar message across to criminals.

People should not have to live in fear in their homes. Recently when I was canvassing with my colleague in Mayo West I found that many people were afraid to open their doors after 9 p.m. Up to the time the Supreme Court decision was taken 28 years ago all one had to do was lift the latch and walk into a house but if one calls to a house now after 5 o'clock in the evening one discovers the safety locks are in place. Who is to blame for that? In my view it is the people who make the regulations and enforce the law. While I have every confidence in the Garda, a great force, their numbers are insufficient. It is a great source of comfort to any community to have a garda living in their midst or gardaí on the beat, which we seldom see because of a shortage of numbers. In this respect a particular problem is encountered in Border areas since gardaí must devote so much of their time to maintaining security and have insufficient personnel to patrol the streets where their presence would make people think twice before committing a crime.

I agree that the setting of bail of £100 or £150 is totally insufficient. I agree that if the person on bail commits a crime, that amount should be forfeited because the sums about which Deputy Michael McDowell spoke are not sufficient.

I think there is a proposal to increase it to £10,000 or so.

I told the House about a man who had £18,000 in a bag with which to purchase a car and he is the type of person with whom we must deal. The provisions of this Bill constitute a step in the right direction. Bail should be set at a minimum of £5,000.

While I take Deputy Lenihan's point that a person may not be able to afford bail but were they behaving themselves they would not be seeking bail. Ninety five per cent of our people are law-abiding and never see the inside of a jail or a courthouse. However, the law appears to bend over backwards to protect people who commit crimes and that is the view of most victims of crime, that apprehending the criminal is not worth the trouble. A friend who has been robbed, burgled or mugged who went to the trouble of reporting such crimes, was questioned at length may say he or she was made feel they were imagining the incident. While such cases must be properly investigated, there is no doubt that the criminal plays on the fact that people do not report many such crimes and their perpetrators get away scot free.

I am not talking about large numbers of hardened criminals but their influence is spreading. I am referring to those criminals who can be named, who have others working for them in various areas. I understand from a good friend, a member of the Garda Síochána, that such people are called "spotters". They tell the criminals what is happening locally and when they move in, commit the crime they get a percentage of the proceeds. If those people were removed from the scene, if they got ten years imprisonment for some of their activities it would be easier to deal with them on the expiry of their term of imprisonment.

If bail is to be granted, the figure must be substantial. The person going bail must be asked where they got the money, whether he or she is a person of substance or is, for example, on social welfare and can pull £1,000 out of a bag and offer it as bail. I do not think that is sufficient. Bail must be forfeited if there is a breach of the conditions and in such cases those going bail will be forced to think twice. The amounts must be sufficient.

I was annoyed at several Members speaking about the cost of maintaining our prisons and keeping prisoners in them. That should not be advanced as a reason for not taking such people off our streets. I understood that a new prison was to be built but, apparently, that proposal has been put on the back burner because of the cost involved. It would appear that the rights of ordinary citizens are less important than the cost of constructing a prison to protect them. That is not acceptable. The Minister has a duty to protect our people. Indeed, no cost should be of consequence in protecting our people from criminals because what we now witness can spiral into even more serious crime. Brutal murders were committed recently, something that was very rare here even ten years ago. I remember, when growing up, reading of the murder of a farmer returning home from playing cards with his neighbours in County Kerry. The Irish Independent and Irish Press at that time gave banner headlines to the murder for a week. The perpetrator of that crime eventually was apprehended. Now such terrible crimes get little more than two lines in any newspaper; that is how complacent people have become. It is up to us to address that problem and ensure that our people can walk our roads without fear.

My last point will demonstrate that fear is the real problem, with such criminals building on the fear in people's minds. Last week a man telephoned "Morning Ireland" to report that after he had stopped on a road to make directional inquiries a mother and daughter who were walking on that road took off as they were afraid he was stopping to molest them. He took the trouble to telephone that radio programme to give his identity, the registration number of his car, the locality in which he was travelling, emphasising that he had stopped merely to inquire the direction in which he was travelling because he knew that mother and daughter were afraid that he was endeavouring to molest them or pull them into his car. It is a sad turn of events here, that people can no longer stop on a road to inquire directions without people being in fear of being molested. As legislators we will have failed if we allow such fear to develop generally.

Reference to the cost of keeping criminals locked up annoyed me enormously. Particularly when the view was expressed that it was more than the State could bear. It is more than the State can afford not to lock them up.

Debate adjourned.
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