I thank the previous speakers for endorsing the proposals in this Private Members' Bill and the Minister for her response last evening. Anybody with a finger on the pulse at the moment will vouch for the heartfelt concerns of our citizens, expressed by them at every possible opportunity when they meet public representatives, at the level of crime which is perceived to be on the increase in our communities. They are particularly worried at the motiveless nature of many criminal activities. Faced with this escalation in crime our citizens demand action, not putting the issue on the long finger and promising reform. They are tired of hearing politicians on all sides coming out with routine condemnation of the high level of crime.
Last year the Minister announced a £66 million package to be ploughed into law enforcement and reform of the system generally, which is welcome. However, the Progressive Democrats propose a range of measures which are, in essence, a procedural response to some of the problems which beset the criminal justice system. Not all reform is a drain on the Exchequer or necessarily expensive. There are structural defects in our criminal justice system which could be ironed out without a charge on the Exchequer and without placing a further burden on the taxpayer.
I welcome the Minister's statement that she is considering our proposed measures which, if implemented, could go a long way towards addressing many complex inadequacies in the justice system. The law must change to meet changing circumstances, particularly social circumstances. With the unprecedented level of unemployment and the breakdown in social cohesion, traditional family patterns and discipline generally among young people, which is being experienced not only in urban areas but throughout the country, we should have confidence to adapt our laws to changing circumstances. Procedures, precedents and principles which have served society well for several generations are not cast in stone. It is our responsibility and duty to adapt our laws on crime to changing circumstances.
My generation grew up with a liberal approach to crime. However, as one encounters crime, those liberal views are quickly diminished. They may be accepted in the academic study of law, but in the application of rules it is sometimes proven that the principles which were meant to support the criminal justice system and protect human rights and civil liberties are an obstruction to real justice. These matters must be confronted.
This House should not be afraid of the Constitution, a very valuable document which has been changed as society has changed. This is particularly so in family law matters and the role of the family in protecting children. As social circumstances change our laws must change. We must not believe that the Constitution is cast in stone. We have the power to change our laws and must do so even if it means changing the Constitution. We must be willing to challenge the principles which have served us well in the past and this must be done without ceding fundamental rights. We should be courageous in putting forward legislation, even if there is a possibility that it will be challenged and sent by the President to the courts for adjudication. Every Bill that goes through the House is deemed to be constitutional until challenged. We are here not only to reflect public opinion but to challenge and enlighten public opinion on particular areas.
As seen in the recent elections, the electorate is seeking action on a range of political and social issues. Many people are tired of politicians who fudge issues and try to please everybody. This Bill is radical and a sincere effort to challenge the premise that the status quo will suffice. The Bill proposes to amend the law to prevent abuse by people on bail who commit further crimes. Persistent offenders will find it impossible to get bail under the terms of the Bill. Every possible step to tighten the law on bail without a constitutional referendum is proposed.
The Law Reform Commission is considering reform of this area and the implications in practice and in policy of such reform. I am sure that whatever recommendations are made by the commission will involve a change in the Constitution and I am glad the Minister said she will have no hesitation in going down that road. The dissatisfaction with the present bail laws needs to be shouted from the rooftops. If change is not made soon we are all wasting our time. This is one area of the law which all parties agree is in need of reform and there is no excuse for delay in changing it.
At present a person cannot be refused bail even if there is evidence that he or she is likely to reoffend while on bail. This is a very serious shortcoming. The measures we propose would allow surety to be forfeited if the person reoffends while on bail. This is a simple measure. The Bill also proposes to increase the amounts of bail set, with discretion on the part of the judge. As the amounts of bail set are frequently paltry, people put up the money as a matter of course.
Part III of the Bill is a comprehensive restatement of the law relating to insanity and criminal responsibility. This is particularly topical in the light of widespread concern that people evade justice by claiming insanity. A verdict of guilty but insane masks the fact that this is an acquittal in law. New powers are proposed to detain dangerous criminals and prevent abuse of insanity pleas. The way in which mental disorder affects criminal responsibility has been the subject of much academic and legal debate over centuries. This Bill is an attempt to integrate the psychiatric understanding of mental illness in the 1990s with the complex knot of legal problems surrounding the insanity plea. The subject of the proper management of the mentally disordered defendant at all stages of the criminal process is addressed.
This Bill is substantially a representation of a Bill drafted by a special interdepartmental committee on mentally ill and maladjusted persons, chaired by Mr. Justice Henchy in November 1978. The recommendations for change have been neglected for 14 years. The Minister pointed out last night that these recommendations are in need of review. I welcome the commitment in the Programme for Government to bring forward legislation in this area. Substantial intellectual investment has been put into this matter by the interdepartmental committee and it would be a shame to waste it.
The terms of reference of that committee were very broad and included the right to examine and report on the provisions, legislative, administrative and otherwise, which the committee considered to be necesary or desirable in relation to persons, including drug abusers, psychopaths and emotionally disturbed and maladjusted children and adolescents who have come, or appear likely to come, in conflict with the law and who may be in need of psychiatric treatment.
It is interesting that the Bill, as drafted, which was annexed to the report, did not deal specifically with drug abusers or intoxicated persons who commit offences. In its introduction the report states that drug abuse and intoxication as factors in the commission of criminal offences require a depth and spread of study beyond the range of the committee. Drug addiction and alcoholism interplay with criminal responsibility. This is an area that is in need of vigorous and in-depth study. A very high proportion of the prison population are drug addicts. Because of that, we need to conduct a complex study into how drug addiction and intoxication can affect criminal responsibility. That can only be done if we carry out a comprehensive audit of our criminal population.
The difference between the legal and medical definitions of insanity is complicated by the fact that insanity means different things in medicine and law at different stages of the criminal process, and by the inherent limitations of psychiatric testimony at the trial and post-trial stages. When a plea of insanity is raised in connection with assessing the competence of the accused to stand trial, the issue is whether he is insane at the time of the trial. The legal test of insanity is whether the accused is capable of understanding the proceedings, although evidence of certifiable insanity is normally accepted as conclusive proof that he is insane in the required sense, in other words, evidence that the accused has been diagnosed as psychotic is generally enough to convince the court that he or she could not be tried as charged. There are recent publications dealing with this subject in Irish law and the whole test of what actually constitutes mental disorder. The Minister raised this issue last night. A defect of the Henchy report is that it did not deal with the crucial issue as to what degree of mental disorder justifies absolving a person of criminal responsibility and how it should be determined.
Before comprehensive legislation is brought before the House a great deal of academic, psychological and psychiatric work will have to go into the framing of the Bill. As McAuley in a recent book on criminal insanity says, in Irish law, though heavily influenced by modern psychiatry, the test of insanity is not co-extensive with the psychiatric conception of madness. There are several reasons for this. First, legal insanity is an excuse for wrongdoing, not a diagnosis of the accused's mental condition. We excuse the insane for the same reason we excuse the very young — because they lack the capacity to act rationally, to understand what they are doing, why they are doing it and to act on the basis of that understanding. This insanity is not a defence because it is a disease but because it is a species of one of the excusing conditions traditionally recognised by the law. This proposal is an attempt to resurrect the Henchy report and to put it on the political and legislative agenda and prompt the Government to address this area of the law.
People do not often claim insanity as a defence because if one is found guilty but insane it means one is potentially locked up for life at the behest of the Executive. That is why such cases are quite unusual, but nonetheless a hard case is always just around the corner and our law should be in readiness and updated to meet the need, such as having integrated up-to-date psychiatric knowledge to deal with the prospect of the legally insane.
We have argued about the need for more transparency in cases of temporary release and remission of fines. We do not oppose temporary releases or remission of fines but we believe there would be widespread outrage if the public knew of their true extent. When somebody is tried and convicted they are sentenced to a term of imprisonment or fined a specific amount and I believe that the public is not aware that the sentences may be remitted by the Executive. As a new Deputy, I was certainly not aware of it and when I subsequently became aware I was surprised at the extent of it. The process should be transparent. In essence, the criminal process is a public affair. The transcripts of a criminal trial are open to the public and I believe any remission of a sentence should be in the public domain. I do not believe the excuse that making it public knowledge would be an infringement of civil liberties. In the interest of transparency it should be made public. The constitutionality of the matter is before the court so I will not go into it in greater detail.
It is proposed to confer for the first time jurisdiction on the District Court to consider the mental conditions of persons charged before it and to make orders for the treatment and care of those found to be in need of it. Where it appears to the district justice that the accused may be suffering from a mental disorder, he may arrange for the examination of the accused by any doctor in the first instance and if it is then thought desirable to have a more detailed assessment by an approved medical officer, provision for this is made in section 15. The establishment of a mental care review body is one of the primary recommendations in the Henchy report and I believe that this proposal should survive any review of the Henchy recommendations.
Today I raised the question of sex offenders, having served their sentence, being released into the community. Last week there was a case in Britain where an Irishman was sentenced to 12 years imprisonment for committing a foul rape on a young woman in Britain three months after being released from an Irish jail having served four years of his six year sentence for the rape of a 14-year-old Irish child and having been granted 25 per cent automatic remission. I believe sex offenders should not be allowed to avail of automatic remission unless someone has carried out an evaluation of the person because there is a propensity for offenders to re-offend. There is a high rate of recidivism among sex offenders. This area of the law needs to be looked at.
I am aware the Minister is setting up a treatment programme for sex offenders but generally speaking there is a very low success rate in treating sexual offenders. It appears that these men are being released into the community in an unplanned way. It is immoral and reckless to the point of irresponsibility to release men in such cases as I have instanced where no objective assessment has been made of their propensity to re-offend. This is part of the constitutional argument on bail. The Supreme Court has said that bail should not be refused to a person because of a propensity to re-offend. The presumption is that once one has completed a fixed term, one is free and a propensity to re-offend should not be assumed. That is too liberal an approach to take to such a serious issue which allows sex offenders, who are dangerous criminals, back into the community in an unplanned way.
Another area about which I am concerned is the care of people who may not be appropriate inmates in prison. I refer to those who have psychiatric disorders and the issue of whether they should plead a psychiatric disorder or insanity at the time of their trial. If they do so, there is the possibility that they would be put away for ever or at the behest of the Executive. There must be an audit of the prison population, what makes them tick and whether there is any hope for these people. Individual plans must be put in place for each inmate.
The situation regarding bail is one of our great scandals but another great scandal is that remand prisoners are integrated with convicted prisoners. I have said on many occasions — during the debate on the Justice Estimate and elsewhere — that there must be a separate centre for remand prisoners. It is not fair to integrate them in an indiscriminate way with convicted prisoners. They are deemed to be innocent until they are convicted and integrating them with convicted prisoners puts pressure on the system which results in temporary releases. That raises the other issue of crimes being committed while prisoners are on temporary release. The whole system is close to collapse because of the overcrowding in Mountjoy prison but procedural changes could be made, quite apart from building more prisons. There is no doubt that we need additional prison places but the law on bail must be examined as well as the separate treatment of remand prisoners.
Another section of the Bill deals with the right to silence. This section might seem draconian but we are not proposing to remove totally the right to silence. We propose that an inference should be drawn if the accused sings dumb. Many people will say that this might result in a miscarriage of justice and that people should always have the right to remain silent but I understand from speaking to lawyers that those who are innocent want to shout their innocence from the roof-tops and that the right to silence is generally used as part of the legal game. They remain silent on the basis that the prosecution has to prove everything, they have the right to say nothing and no inference can be drawn from that. That issue must be confronted and Deputy McDowell, as a practitioner, has drafted various procedural aspects of the Bill which are quite complicated and which possibly would go above the heads of many Deputies, including myself. As a practitioner, he has an insight into the criminal process which I certainly do not have.
I wish to refer to the speeding up geneally of the criminal justice system. I understand the Minister is drafting proposals in the Miscellaneous Provisions Bill which would change the law in a whole range of issues. I am glad the Minister is responsive to proposals made by the Opposition. She has been a very active Minister for Justice. I regret the Bill is not getting a positive response but we want to encourage the Government to address the problems of bail and the issue of the criminally insane. Hard cases are always just around the corner in relation to the criminally insane and the response of the law.
I feel strongly about the potential abuse of Executive power in the reduction of sentences. I understand in the past there was much more consultation with the District Court judge who dealt with the original trial but that the matter is now a routine one for the Executive. In some cases the remission of sentence is being approved even though the appeal process has not been exhausted by the person concerned. The figures have increased dramatically in recent years and this is causing a lowering of morale among the Garda Síochána. Perhaps this is something that members of the Garda say only to Opposition Deputies but I cannot be sure of that and I wonder if the Minister and the Minister of State are simply closing their eyes to the fact that there is widespread concern about the lack of transparency in the petition system.
I look forward to the continuing debate on the Bill. It provides the House with an opportunity to examine the issue of mental illness and I ask the Minister to respond to my proposal to examine the problems of drugs and alcoholism and how they contribute to criminality.