Criminal Procedure (Amendment) Bill 2007: Second and Subsequent Stages.

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

Minister for Justice, Equality and Law Reform (Deputy Brian Lenihan)

I am pleased to present the Criminal Procedure (Amendment) Bill 2007. This is a short item of legislation to rectify a legal anomaly that has recently come to light in the law relating to bail. The anomaly has arisen in relation to the acceptance of recognisances by prison governors.

Bail is often granted on condition that recognisances are met. Recognisances are those undertakings or conditions that the person granted bail must satisfy. They may be in monetary or non-monetary form. In many instances, the person is remanded in custody pending the taking of the recognisance.

I want to outline the context in which the present difficulty has arisen. Section 22(3) of the Criminal Procedure Act 1967 provided that judges of the District Court and peace commissioners could take bail recognisances. Prison governors are also peace commissioners and in that capacity they had been able to accept recognisances from persons remanded in custody pending entry of a recognisance. However, since the governor was acting in his or her capacity as a peace commissioner, he or she could not delegate this function in the same way as he or she could delegate other functions to, for example, a deputy governor. This gave rise to logistical difficulties, given the turnover in governors and the fact that, following an agreed change in work practices, they are not available 24 hours a day. In order to deal with this difficulty, the Prisons Act of this year, which modernised and updated prison-related provisions generally, amended section 22(3) of the Criminal Procedure Act to provide, at section 41(2), that prison governors or prison officers designated by the governor could accept recognisances from people remanded in custody by the District Court pending the entering of a recognisance. This provision came into operation on 1 May this year.

However, section 18 of the Criminal Justice Act 2007 also amended section 22(3) of the Criminal Procedure Act and removed the reference to peace commissioners. This was done as several references in the 1967 Act to the role of peace commissioners had already been removed by the Bail Act when it was passed in 1997. Following the same analogy, it was decided to remove the reference to peace commissioners in relation to the acceptance of recognisances. The amendment in section 18 of the Criminal Justice Act brought this about. It substituted the entire section 22(3) of the Criminal Procedure Act 1967 rather than deleting the reference to "peace commissioners". Hence, the new subsection provided for judges of the District Court to take recognisances but made no mention of prison governors or other designated prison officers. Section 18 of the Criminal Justice Act 2007 came into operation on 1 July this year, and, being the most recent of the amendments, I have been advised that the effect of the subsequent Act was to effect an implied repeal of the previous legislation. Unfortunately, the full implications of the relationship between these two amendments was not realised until it was brought to the attention of my Department on 11 October by the Courts Service.

That is the context in which the present difficulty has arisen. The operational implications for the prison system of the changes in the legislation have prompted me to bring this Bill before the Houses of the Oireachtas. Since the recognisances can no longer be taken by a prison governor or other designated officer with respect to a person in custody, the prison authorities must now arrange to bring the person before a judge of the District Court. This has serious implications for the Irish Prison Service in terms of providing prison escorts and ensuring the availability of judges at short notice. I am aware that certain short-term arrangements have been agreed between the Courts Service and the Irish Prison Service to minimise the difficulties but those arrangements cannot continue in the longer term. I am satisfied that the difficulties, if left unchecked, would have serious implications, especially for the Irish Prison Service, in terms of staff deployment and overheads. There is a concern that it could create tensions in prisons if persons on remand felt their release was being unduly delayed.

I emphasise that while there is an operational and logistical problem - it is a significant problem - it does not in any way affect the granting of bail or the conditions under which bail is granted. Any person affected by this anomaly will already have been granted bail by the District Court and remanded in custody pending entering of a recognisance. There is no question that any person has been released who should not have been released. I emphasise that the only issue at stake here is the question of who is authorised to receive the recognisance that has already been stipulated by the District Court. This amending legislation will resolve the practical difficulties that are arising. The Attorney General has advised that the most appropriate response to deal with the current position is to bring forward legislation on an urgent basis. I thank the other parties which are represented in this House, as in the Lower House, which have facilitated the rapid passage of this legislation.

The Bill will restore the position to that which obtained prior to the commencement of section 18 of the Criminal Justice Act 2007, that is, prison governors and prison officers designated by them can accept recognisances from persons remanded in custody. Since the taking of a recognisance is essentially an administrative consequence of an earlier judicial decision, the opportunity is being taken to include District Court clerks in the list of persons who may accept recognisances. I have decided also to reinstate peace commissioners as persons empowered to take recognisances.

I will now deal with the content of the Bill which has just two sections. Section 1 is the substantive section which amends section 22(3) of the Criminal Procedure Act 1967. It substitutes a new subsection (3) for that inserted by the 2007 Act. The new subsection provides that a judge of the District Court, a District Court clerk, a prison governor, a prison officer designated by a prison governor and a peace commissioner designated by order of the Minister for Justice, Equality and Law Reform may take recognisances. I have decided to reinstate peace commissioners as persons empowered to take recognisances for practical reasons. However, as the role of peace commissioners in relation to bail matters has changed, I am inserting a provision whereby they must be designated by ministerial order rather than including a universal empowerment provision. As already indicted, the opportunity is also being taken to extend the provision to include a District Court clerk in the list of persons who may accept a recognisance from a person on remand. Section 2 is the standard provision providing for the Short Title and citation of the Bill.

Before I conclude, I acknowledge that it should not be necessary to introduce a short item of legislation such as this to address an unfortunate and regrettable oversight. However, when the issue arises we must face up to it and deal with it as quickly as possible. In that regard, let me express again my appreciation for the co-operation of the Members of this House in facilitating the introduction of this Bill at short notice.

The net effect of the current difficulty has not been in any way detrimental to our legal system. The accidental omission of the reference to prison governors or those designated by them has, as I have indicated, resulted in operational and logistical difficulties for the Irish Prison Service. It has not resulted in any difficulties of a legal kind for the granting of bail by the courts or the setting of conditions to bail. Nobody is out on bail who should not be at liberty. In a nutshell, the simple issue at stake is the question of who is authorised to accept a bail recognisance. My major concern is to eliminate disruption to the system that has worked well and to ensure the efficient operation of the courts and the Irish Prison Service.

I look forward to hearing the views of Senators on this matter and I commend the Bill to the House.

Senator Eugene Regan

I welcome the Minister and appreciate that he has personally presented the Bill to this House. I have no difficulties with the Bill and, in fact, the matter to which it refers has only recently come to light. A number of criminal law practitioners brought it to my attention last week. I welcome the Minister's comprehensive explanation. It was an inadvertent oversight and essentially a technical error which, as the Minister stated, has not affected the bail system. When Bills are introduced in a rushed manner, this type of error can creep into the legislative text. Will the Minister assure the House that legislation passed in the past two years which contained comprehensive amendments to the corpus of criminal law has been checked for any other errors we may otherwise have to revisit? I support the Bill.

Senator Denis O’Donovan

I support the Bill. As this is the first opportunity I have had to address the Minister, Deputy Brian Lenihan, since his appointment to the Cabinet, I wish him well in his new post. I have known him for more than 20 years and I am delighted he has been appointed as Minister for Justice, Equality and Law Reform. In this day and age, the portfolio comprises an onerous, difficult and sometimes unenviable task. I have no doubt, however, that he has both the calibre and experience to deal with it. In my former role as Chairman of the All-Party Committee on the Constitution, the Minister was my predecessor and we worked closely together on many issues. I always knew he would rise to Cabinet office and I am delighted for him. I wish him and his family good luck. Although it can be a difficult job, I have no doubt that he will carry out his functions with aplomb. I have great faith that he will do an excellent job in that Department.

The Bill seeks to rectify an oversight caused by the enactment of the Prisons Bill which brought about this error. For example, if a judge at Schull District Court tomorrow decided to imprison a young man from Dublin or the midlands on a serious charge and there was nobody there to act for him and fix recognisances, he could end up in Cork Prison over the long weekend. It may be decided on Friday that the man was entitled to get out, but if the prison governor or another member of the prison staff could not act because of this anomaly, he would remain in prison until Tuesday. That is a simple example because a District Court judge would not be sitting over the weekend or on a bank holiday Monday. If the matter were quite serious, they would sit, but that creates all sorts of anomalies and difficulties.

I fully understand what has happened and I support this amending legislation. I appreciate that my colleague Senator Regan also supports the Bill. All parties in the Lower House also realised that this was an error which has done no damage. I commend the Courts Service which picked up on this matter and brought it to the Minister's attention. The Courts Service is a relatively new phenomenon but in this case it has succeeded in bringing the issue to light. It may be a minor issue but it has major practical implications. I fully support the Bill which I hope will attract support across the floor of the House.

Senator Feargal Quinn

I will cause a minor upset for the Minister, although he is welcome here. I accept what Senator O'Donovan has said in that the Minister often attends the House personally rather than sending a Minister of State to deputise for him. I was impressed by what Senator Regan said because I have a problem with rushed legislation of any kind. It seems that when we have such legislation, we must revisit it because we did not cover the matter well enough initially. Yet again we are being subjected to the undignified task of cleaning up the mess the Government has left behind.

I object in principle to emergency legislation, but in this particular case I have a more fundamental objection. I call into question not the corrective measure before us — I have no doubt it is correct — but the original Act whose purpose it is to repair. In my time in the House I have taken part in many debates on crime, but I am now beginning to wonder whether the way we approach this question is creating results that end up being counterproductive.

It is easy for people in our position to create public hysteria about crime, or add to it when it is created by others. The ordinary citizen, quite reasonably and understandably, is always concerned about the level of crime. Listening to the radio today, one could hear how concerned people are. It is one of the few hot button issues that is virtually guaranteed to provoke a response from ordinary citizens. Since politicians and especially journalists know that, however, they are all too likely to pander to ordinary people's concerns rather than addressing the issue directly.

In the case of the media, their sin — I am happy to say I think it is one — is the way they present crime stories as if they were much more common than they are. They rarely point out that even with the dramatic increase in violent crime we have certainly had in recent years and of which we have heard a great deal today, nonetheless, Ireland still has a relatively low level of criminal activity by international standards.

Too many politicians yield to the temptation to snatch a quick headline by playing up a crime story, but what concerns me more is the way the crime argument is presented in terms of political debate. No matter what party is in power, it is always under constant attack by the Opposition, although I accept that Senator Regan did not attack the Government on this occasion. The Opposition usually presents the latest crime situation as a total failure by the Government of the day which, it claims, either does not recognise the seriousness of the situation or is indifferent to it. In addition, the Opposition often suggests the Government is incompetent in dealing with the situation.

The motion we considered here this day last week fell neatly into that pattern. It could be seen as the usual political argy-bargy, until we look at the effects it often has. Since Governments of all colours invariably turn out to have thin skins, they react to criticism of this kind by becoming overly defensive. Governments invariably find themselves tending to talk down the incidence of crime, while at the same time Opposition parties find themselves talking it up. They invariably tend to be overly confident in the steps they are taking to combat crime and present a rosy scenario of the future as they see it. The Minister did not do so today, however, and I am not talking about it in that context. Rather, I am using this opportunity to comment on the general point.

The amendment to the motion that was before us last week also falls neatly into this pattern. It does not, however, stop with talking, and this is my main problem with the Act that we are amending here. Governments have the power to act, and sometimes they use that power for the wrong reasons. It is hard to avoid the conclusion that some, if not most, of the recent legislative action on the crime front has been driven not by an honest attempt to cope with a real-life situation on the ground, but by political considerations.

It is part of this yah-booh political shadow boxing that goes on all the time, and of which last week's debate was a part. Too often the Government produces criminal justice legislation not because it is really needed but because it thinks it will convince people that it is on top of the situation, and doing everything possible and necessary to address the problem.

Hence my belief that creating hysteria about crime tends to generate the wrong response. All criminal justice legislation is, to some extent at least, an invasion of individual liberties, and the question we legislators should ask ourselves is whether the benefits to society as a whole justify the damage we do to the freedom of individuals. We cannot answer that question the right way if the motive driving the legislation is aimed not at a crime problem, but at a political problem that we have created by the way we approach the issue.

This is not to suggest that crime is not a serious challenge about which we should be complacent, or over-confident of the means we employ to deal with it. We need to find a better way of discussing it than we do at present because that approach inevitably results in hasty and disproportionate legislation.

My words are based on last week's debate rather than on what is taking place today. I understand the Minister's point which he has explained well and I support what he is trying to do but I am unhappy at the way we handle crime in these Houses.

Senator Dan Boyle

I concur with Senator Quinn. I have tried to say the same in recent debates but have probably done so less sensitively. Our debates on crime must be conducted on proper terms. I am glad that there is no contention about correcting the anomaly set out in this Bill. I also agree with some of Senator Regan's points. Emergency legislation of this type is usually needed to correct emergency legislation that was badly introduced in the first instance. Both Acts under discussion, the Criminal Justice Act and the Prisons Act, introduced earlier this year, however, had a long lead-in time for publication and considerable Second Stage debate. The problem arose with the introduction of a raft of amendments on Committee and Report Stages which, in effect, produced new Bills. Many of the difficulties might have arisen on the introduction of these amendments, and the guillotine on speaking and scrutiny time. It may be necessary on Second Stage of the legislative procedure to audit those features to determine if there are similar anomalies in the system.

In correcting this anomaly the Minister is ironically restoring the original Bill, obviating the need for the original amendment. This raises the position of the peace commissioners. There is a need for a proper updated register of peace commissioners, within either Garda administrative areas or court areas. My father was a peace commissioner for many years, a role in which he took great pride. His name remains on lists furnished by local authorities although he passed away seven years ago. That happens around the country. These lists should be available through the citizens information centres, in libraries and local authorities, and for every elected representative. If this Bill gives us an opportunity to consider how peace commissioners are appointed, their role within the judicial system, one aspect of which the Bill addresses, and how citizens interact with them, it will be a worthwhile debate. I urge the Minister to consider those issues.

Senator Dominic Hannigan

I welcome the Minister to the Chamber. I am glad to hear him say that there are lessons to be learned from this process because it helps no one when legislation is rushed through Parliament. My colleague in the Lower House referred last night to the fact that soon afterwards we uncover the inevitable mistakes and loopholes. It has been remarked that the content of the amendments introduced by the Minister's predecessor was greater than that of the original Bills. The Criminal Justice Act is not the first instance in which we have had to return to amend loopholes and mistakes.

I have no problem with the amendment proposed to this Bill. I take the Minister's word for it that nobody not entitled to do so has accepted recognisance. Criminal justice legislation is too important a subject to be rushed through the House. It impacts on many aspects of our legal system. When it is rushed mistakes are made and amendments are needed at short notice. This is an unacceptable way to proceed. I support this amendment but would prefer that such amendments cease. I also support Senator Boyle's comments on peace commissioners. A database would be beneficial to us all.

Minister for Justice, Equality and Law Reform (Deputy Brian Lenihan)

I thank Senators for their broad welcome for the legislation. In the Lower House I was asked for the opinion of the Attorney General on the validity of anything that had happened from 1 July until the Courts Service brought this to the attention of the Department and the corrective arrangements were put in place a few days ago.

The Attorney General's advice is that there can be no doubt that the persons released on bail since 1 July are validly released. The bail orders were made by the courts. The Attorney General also advised that in so far as recognisances were taken by prison governors, in circumstances where the recognisance was a money amount no issue arises because a term of being released on bail was the handing over to the State that amount of money as security. That advice bears out the adage of possession being nine tenths of the law.

The Attorney General has further advised that the fact that the person who may have physically taken custody of the money was not authorised by statute does not alter the position as the money is in the State's possession and can be forfeited by it. In addition, in so far as the recognisance was a bond then the bond has been validly given pursuant to the court order by the person giving the bond and its validity is not affected by the fact that the person who takes the bond does not have a statutory authority to do so. The technical irregularity does not affect the validity of the bond which is an obligation undertaken to the State.

Senator Regan said that there has been substantial legislation passed recently on the basis, as Senator Boyle puts it, of mass substitution of amendments to Bills. I have asked my Department to check through recent legislation to ensure that there have not been other inadvertent oversights.

I thank Senator O'Donovan for his kind wishes on my appointment. I was interested in Senator Quinn's contribution and agree with much of what he said. The public debate on crime determined the nature of the response to the issue and it is important to have a responsible debate on it. In interviews today following the publication of the crime statistics numerous commentators asked me why I had no new proposals in this area. We have enacted a great deal of legislation in this area upon which the Garda Síochána must act, which it must implement and for which it needs to be resourced. Senator Quinn has no particular objection to this Bill, which I welcome.

Senator Boyle referred to the proper consideration of legislation and the question of the peace commissioner. The tradition was that a record of peace commissioners in a particular Garda district was kept by the district officer, which would seem to be the appropriate procedure. However, Senator Boyle is right that in recent years, it does not seem to be the case that all districts have an accurate picture of all the peace commissioners. The Supreme Court cast some doubt on the validity of peace commissioners exercising powers in criminal matters in recent years, which has led to an erosion of their functions.

I pay a particular tribute to the peace commissioners and to those who exercise their functions. They do so without any monetary reward. It is an express term of the appointment that they can receive no reward or remuneration for the performance of their services, so they are effectively citizens who voluntarily perform civic functions. I have initiated a review of this area since my appointment because they can perform useful functions and can save judicial and police time in the performance of those functions.

Senator Hannigan referred to the same issue and made the point that criminal justice measures are too important to be rushed through this House. I agree. On that note, I thank Senators for their contributions on Second Stage.

Question put and agreed to.

Bill reported without amendment, received for final consideration and passed.

Seanad Éireann debate - Wednesday, 24 Oct 2007