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Dáil Éireann debate -
Wednesday, 9 Nov 1983

Vol. 345 No. 9

Criminal Justice Bill, 1983: Second Stage (Resumed).

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

Last week I dealt with the juvenile liaison officer scheme which appears to have been run down or ignored so much that the job of the officers has become impossible. They are probably the most frustrated group in the Garda at the moment. If we are to reduce juvenile crime I suggest that juvenile liaison officers should not be involved in any arrests. Perhaps they could be engaged in crowd control or office work, but because of their delicate work with juveniles I think it is important they would not be involved in arrest procedures.

Last week I pointed out the need to distinguish between vandalism, juvenile delinquency, petty crime and major crime. This Bill does not deal with these areas. It is in these spheres that the juvenile liaison officers, if the force was built up, could play a vital role.

I referred briefly to drug-related crime which has been increasing enormously in recent years. It is a national scandal that we have delayed so long in dealing with drug addiction. Statistics are not available to indicate the number of crimes which are being committed by addicts in order to feed their addiction. With the exception of Coolmine Therapeutic Community, which is voluntary, there are no residential centres other than prisons for drug addicts when they are convicted. The prisons do not have any facilities for drug addicts and the result is that the prisons themselves are becoming major centres of drug addiction, trafficking and probably drug distribution. The Bill does not deal with this matter. This must be tackled strongly, particularly in Dublin and other urban areas. There is provision in the Bill to increase the jurisdiction of the District Court which will be able to impose consecutive sentences of up to two years. That will not provide any solution to the drugs problem. There is urgent need for closed residential centres geared for the treatment of drug offenders. The crime of drug-pushing should be given the highest priority.

A large percentage of those involved in crime are under 21 years but we are still operating under the 1908 Children's Act, a piece of Victorian legislation which has been abolished in the UK but has not been replaced here. Experts in child care and many organisations have been warning Governments here, particularly in the past 15 years, on the growth in juvenile delinquency and the consequent need for modern methods to deal with this problem. The Kennedy Report in 1970 and the Task Force Report of 1981 made specific recommendations in this regard but we are still awaiting a new Children's Bill. I would have thought there would have been a provision in this Bill in this respect but it seems to be designed only for the giving of greater powers to the Garda.

If we are to counteract properly the growth in crime we should be in a position to identify delinquents and delinquency at an earlier stage to try to ensure that young delinquents will not turn into hardened criminals. This is all a vital part of crime prevention but it is not dealt with here and consequently the Bill will not have the effects on crime hoped for by the Minister and the Garda. The Bill should contain an overall plan to bring communities, the Garda, the courts and prison officers together in co-operation. It should also lay out a policy to deal with the enormous personal and environmental problems which are a major cause of the growth in crime, mostly petty, but serious crime as well.

Earlier I referred to prison overcrowding and the need for consultation and co-operation among the Garda, the courts and the prisons. In this respect the recent attitude of the Minister has been most unhelpful. Good industrial relations play a vital part throughout the economy but they are especially important in the prison system.

Last week I said the Department of Justice are notoriously outmoded and inept. They adopt very hard line attitudes. A serious breakdown in industrial relations has occurred in the prisons and it is the Minister's job to try to heal rifts and to ensure that industrial relations in the prisons will be put on a good footing so that the prison system will do the job it is designed for. The Minister should not be making the rift wider, if there is a rift, between management and workers, or governors and officers. I hope the Minister will begin to mend fences and ensure there will be serious negotiations. Management can always put the worst possible outlook on industrial action by workers but in an area like this it is the Minister's job to ensure that both sides will negotiate to work out the problems that exist.

Our entire criminal legislation needs overhauling. Last week I referred to the various outmoded Acts through which most convictions come — the Larceny Act, 1916, the Forgery Act, 1913, the Malicious Damage Act, 1861, the Offences Against the Person Act, 1891, the Vagrancy Act, 1824, Dublin Police Act, 1842, and Children's Act, 1908. All of these pieces of legislation are used every day in our courts and they need a complete overhaul. It is also necessary to have a review and overhaul of the whole court procedure to get rid of outdated and pompous attitudes, to speed up procedures and cut down our courts' expenditure. This Criminal Justice Bill on its own will be seen only as merely giving stronger powers to the Garda and will not lead to any increase in detection rates or the prevention of crime.

I, like most Deputies in the House, welcome this Bill. I congratulate the Government and the Minister for bringing it before the House at this time. For far too long a concerned and even frightened public have urged stronger powers for the Garda to deal with the level of lawlessness which has reached unacceptable proportions in any society which has pretentions to describing itself as civilised. The terrifying escalation of offences against person and property, the increase in violent crimes by gun-bearing thugs, the muggings, the housebreakings, car thefts, intimidation of juries and so on have forced numerous Ministers for Justice in different Governments to examine the law with a view to having it strengthened.

The evolution of crime has to be matched by a parallel evolution in the powers of the Garda. New types of crime demand responses from the Garda. Above all, the public need protection against ruthless modern criminals. I feel this Bill tries to meet the needs of the new situation without upsetting the delicate balance which must always exist between the Garda and the public. I know that the Minister has gone to great pains to achieve this delicate balance and I feel he has succeeded in this Bill. I believe that the new proposals in this Bill will be approved by the vast majority of the people because the law abiding public for a long time have demanded such action by responsible Governments.

A survey was carried out recently which established that Dubliners on average are likely to be victims of crime relating to property or personal injury at the hands of criminals once every three years. Every politician who represents an urban area is well aware of this. One has only to walk around one's constituency to see how this problem affects the people at large. I could give numerous examples of this but I feel it is generally accepted that in all sections of the community people now live with a certain amount of fear and risk. It affects all areas of my constituency, the higher income group and the lower income group. It is sadder when it affects the lower income groups. I know numerous old people who are terrified living on their own. The situation has now been reached in Dublin Corporation where old people are afraid to accept accommodation on the ground floor.

I could tell the House about numerous sad cases but I came across a most tragic one recently. A young girl who lives less than a stone's throw from this House in an area which I represent, had taken her young child to school. She lived in one of the corporation flats and when she went back home she found the hall-door broken down and her flat burgled. All the little treasures which meant so much to her had been taken, most of all her engagement ring. In view of this and many other cases like it, is it surprising that the reaction of some of the public is that this Bill does not go far enough? I am pleased about the support the Opposition have given to this Bill. The Leader of the Opposition was reported in The Irish Times of 28 October as stating:

We are certainly in full support of this Bill. We believe there must be a Bill, not that it will be the whole answer. As far as we are concerned action is called for on the law and order front. It is not an exaggeration to say that in some areas law and order has broken down. The sad situation must be tackled from a number of different directions. Change in the criminal law is only one of them. There are many other things that can be done and must be done. Therefore, I am prepared, and I think the general public are prepared, to sacrifice some precious and cherished liberty in order to tackle this crisis.

I am also pleased to note that the spokesman for Justice in the Opposition, Deputy Woods, also supported the Bill in principle in his Second Reading speech.

There are areas in this Bill which will be discussed in more detail on Committee Stage. I am sure the Minister will have an open mind and will agree to any improvements that will be made in the Bill. The Bill proposes to give the Garda power to detain for six hours, or longer in certain circumstances, those suspected of certain crimes. This power applies to indictable offences, punishable by a term of imprisonment of five years or longer and only where the Garda have power of arrest on warrant. As I understand it at the moment the Garda have no power to hold a suspect for questioning. They can only question him if he agrees and if he wishes to go free he is free to do so. I find it encouraging that the Bill sets out with some clarity the circumstances under which such suspects may be detained. Hitherto it was an area of considerable vagueness which gave rise to allegations of abuse by the Garda. Now there will be no excuse for gardaí overstepping the mark in their efforts to obtain information from suspects.

The initial period of six hours must be sanctioned on reasonable grounds by the garda in charge of the station and a further six hours must also be sanctioned by a chief superintendent and he must record that sanction in writing. A further safeguard is that the person detained must be told that he can consult a solicitor and that his family is also notified about his detention. I believe the vast majority of the public agree that the powers of detention proposed in the Bill are reasonable and necessary. The Garda must be given every means necessary to investigate serious crimes and to bring to justice the criminals responsible. One of the most effective ways of doing this is to give them the power of detaining and questioning those who are reasonably suspected of having committed such crimes. We have heard that most modern police forces have such power. I find it hard to believe that under our law the Garda must operate without what most people would consider are powers that are absolutely necessary for the investigation of serious crimes.

I believe that the period of detention proposed in the Bill is the shortest that would be of any practical use to the Garda in the course of their investigations. I believe that anything less than that would not be of any use at all, especially if we take into account the time which has to be spent going through the usual formalities when the person is brought to the Garda station. As well as that, we must also take into account the amount of time spent in consulting a solicitor.

I would like to refer briefly to the suggestion by Deputy Woods that where a six hour period of detention is extended during the daytime on the authority of a chief superintendent that there should be a break between these two periods. If a break is to be given between two periods of detention the effect will be to make the overall period of detention longer by the lenght of the break. In addition, the Deputy seems to be taking it for granted that the periods of detention will be used by the Garda only for the purpose of questioning and that there will be nonstop questioning of a person detained for the whole period. This is not the way I understand the position. What I am told is that the questioning must not continue longer than a period of four hours without a break for refreshment and rest. These are the present instructions which the Garda operate under. Presumably these instructions will remain in force and there will be no need to make provision for a break between the two six hour periods. As well as that, the period of detention may be used for investigation of statements made by suspects or forensic testing of items taken from them by the Garda. So, there would be long periods in which there would be no questioning at all.

Another important section of the Bill is section 5, which gives the Garda power to search, photograph and fingerprint suspects and to make forensic tests for firearms, et cetera. However, these measures can only be carried out under the authority of a superintendent. These powers will give an opportunity to the Garda to combat serious crime. Unlike Deputy Mac Giolla I think this is a very important aspect of the Bill and that the power given to the Garda in this section will give them a great opportunity of overcoming the crimes that are being committed in present times. As the Minister has stated, if the Garda are to have any reasonable prospect of success in dealing with crime they must have these powers. I can understand that some people will be very sensitive about the possibility of being fingerprinted, but I am happy that the Minister is taking every possible safeguard in providing in quite explicit terms that the Garda must destroy the records and every copy that exists if the person is not prosecuted or if he is acquitted. I welcome the suggestion of Deputy Woods that there should be a system of bringing complaints because it must be seen by the public that the Minister's intentions are carried out in full.

I particularly welcome the proposals to increase the level of penalties for the unauthorised taking of cars. The huge increase in offences of this kind in recent times has had the most terrible consequences, not only as regards property destroyed or damaged but more seriously as regards lives lost. Parents and families of innocent victims killed by criminals of this kind have been subjected to untold misery and distress. Their grief and sorrow has been exacerbated and insult has been added to injury quite often when they hear that the criminals responsible have committed further offences of this kind while on bail and when prosecuted in the courts get off very lightly. We owe it to the families and parents of such victims to come down heavily on these criminals and to make very effort to stamp out this type of offence. The penalties proposed in the Bill will go a long way to help to remove this sort of problem from our community.

Stealing cars is often the first step in the organisation and carrying out of serious crime such as armed robbery and kidnapping, but it is very often carried out by juveniles in the course of joy riding. It has been suggested by people who are concerned about this problem, and the spokesman for the Opposition has put forward the suggestion in relation to juvenile crime generally, that the parents of young offenders should be made responsible for the offences and damage caused by their children. I am told that there are provisions to this effect in existing law, in the Childrens Act, 1908, but that they do not seem to have been used by the courts for many years. Many people would support such an idea but difficulty might arise if parents are punished for offences they have not committed. A provision on the lines suggested would not be proper to this Bill. It might be more appropriate for a Bill dealing with children. I am sure that Deputy Mac Giolla will be pleased to know that such a Bill is being prepared at present.

It is good to see that something is now being done to get at suppliers of firearms and receivers of stolen property. Some people have criticised these proposals on the grounds that they might encourage the use of informers in our society. This is because the proposals protect people who give information from having that information used against them in criminal proceedings. It is vital if we want to reduce violent crimes to bring to justice persons who make profits by supplying sawn-off shotguns and other equipment to others. The same is true of those who deal in stolen goods. It is the duty of anyone who has information to give that information to the Garda. This duty is more important and must override the principle of the right to remain silent. There could be no apology for the provision in the Bill requiring that such information be given to the Garda. As regards protection for the person giving information, it is only right and fair that a person who gives information to the Garda should not have that information used against him.

I welcome the section which requires an accused person to give notice of any alibi he proposes to rely on at his trial. This will end the situation whereby the prosecution may have to answer in court an alibi that they had been unable to check because the accused was under no obligation to tell them. Courts do not stop trials to let the prosecution investigate a matter. It may not always be possible to challenge an alibi that appears out of the blue. If there is advance notice it may have the result of charges being dropped before the trial if the alibi stands up. The arguments for such a provision are based on commonsense.

The proposal to introduce majority verdicts will be widely welcomed. That will help to prevent the very real danger of jurors being threatened or intimidated by vicious thugs who are prepared to stop at nothing to avoid the punishment their criminal activities deserve.

I now want to turn to the question of bail. Every reasonable citizen will welcome the section dealing with the question of bail. For too long criminals have used the right to bail to commit further crimes. I am pleased to note also that under the Bill the courts will be required to impose consecutive sentences and I also welcome the provision whereby a new offence is committed where there is failure to comply with the conditions for bail.

It was surprising to hear Deputy Woods saying that he does not see the need for section 25, which deals with proceedings after arrest. Most people will agree that if there is any doubt about a provision of the existing criminal law we have an obligation to settle that doubt once and for all. This is what section 25 is mainly about. We cannot tolerate a position where criminals who are clearly guilty might get off because of a doubt or loophole in the law. There is a clear duty to prevent the possibility of such a thing happening. What is being proposed in the section, we have been told, is to make it perfectly clear that anyone who is charged, whether arrested on a warrant or without a warrant, must be brought as soon as possible before a court. This is perfectly reasonable and it is only commonsense to provide that someone who is charged late at night need not be brought before the court until the next morning. The Minister explained that this is existing law as laid down by the courts and it is only right that it should now be on a statutory basis. It is a bit unfair to have peace commissioners called out of their beds in the middle of the night to deal with someone charged with offences who could just as easily be brought before a court a few hours later. In any event, as the Minister has told us, the accused person will be charged and cannot be questioned by the Garda after that. It is difficult to see, therefore, what possible problem can arise on this section.

Section 26 is by far the most important in the Bill. It empowers the Minister to make regulations to make recordings by tape or even video of the questioning of suspects. I am pleased to note that the Government are committed to introducing an appropriate system without any unnecessary delay and the Minister should treat this with the urgency it deserves. When such a system is introduced it will be a foolproof way of ensuring that citizens in custody are not abused or that the Garda are not maliciously accused of abusing them.

The Garda at present have no general power to obtain a warrant to search a premises for evidence in relation to serious crimes. I was surprised that this was not provided for in the Bill. The Minister explained the difficulties of making such a provision but he suggested for the consideration of this House a provision, very restrictive in its scope, which would allow a Garda superintendent to obtain a warrant on sworn information before a district justice, to search premises only — and I stress only — when the district justice was satisfied that there was evidence relating to serious crime, namely, murder, kidnapping, serious offences against the person or rape. Such a provision under these very strict conditions would be justified.

The safeguards in the Bill, along with the independent procedure which the Minister intends to set up, deal with complaints against the Garda. It will give protection to the rights and well-being of persons in Garda custody. It is clear to any fair-minded person that the Government have given a lot of attention to this aspect of the Bill and they are anxious that the new powers will not operate unfairly against an accused person or interfere with his basic right to a fair trial. As regards the timing of the introduction of the new complaints procedure, the spokesman for the Opposition appears to see something unusual in the fact that proposals were not put forward at the same time as the Bill was published. However, most sensible people agree that it is quite proper that these proposals should not be rushed through simply for the sake of meeting a deadline. It is essential, whatever form of procedure is introduced, that we get it right the first time.

A procedure which the public do not accept and which does not have their full confidence would be worse than no procedure. I have been told that in England a complaints procedure was introduced more than 20 years ago but that it was found to be unsatisfactory in practice. It was widely criticised and changes were made in the procedure, but it still gives rise to much public criticism and now further changes are proposed in the Police and Criminal Evidence Bill which was recently introduced there. It is important in the light of that experience to see that a procedure set up will be acceptable to the public and the Garda and will stand the test of time. A procedure produced in a hurry could well prove to be no safeguard. The Minister is fully justified in his decision to bring forward the proposals for an independent complaints procedure only when all aspects have been fully considered. Any sensible person would agree with that decision.

I should like to commend the Minister and the Government for bringing in this much needed Bill. They may rest assured that the majority of right thinking people will give them full support in their efforts to bring to an end the appalling crime and vandalism which exists today.

I will not be as effusive in my welcome of the Bill as has been suggested by the previous speaker in his valuable contribution to the legislation now before the House. In anticipation of any criticisms I may bring down upon myself, either in the House or elsewhere, I should like to place on the record that nobody in the House is more supportive of the Garda Síochána than myself. My contribution, in the light of my support for the Garda and for the institutions of State generally, may be seen to be in ease and in aid of that organisation and of the institutions generally.

I do not give an across the board welcome to the Bill. The Bill in its completeness, as produced by the Minister for Justice, certainly does not meet the criteria that I would request of a Bill as important as this. It is extremely significant legislation, probably the most significant which the House will have to consider during the currency of this Dáil. The history of criminal legislation shows that the topic is only rarely the subject of legislative intervention. There were three previous Bills on criminal law, apart from special enactments dealing with subversive crime, the Courts of Justice Act, 1924, the Criminal Justice Act, 1951, and the Criminal Procedure Act, 1967. It is likely, therefore, that this proposal, if passed, will affect the administration of criminal justice, and indeed the liberty of the citizen, for a considerable period to come. It would be improper and wrong if the Bill received anything but the fullest consideration from Deputies.

The proposals in the Bill cannot be summarised briefly. It contains a large number of specific innovations, some clearly good, some indifferent or debatable and some which are radically misconceived. I do not doubt that the Bill as a whole is advanced as a genuine contribution to, as Deputy Doyle said, one of the most serious problems affecting us, particularly in the city and county of Dublin — indeed, all large cities are affected by the growing problem of criminal activity. It is right that it should be discussed in a non-partisan spirit and I hope that my own contribution will be seen in that light. The end result of a non-partisan contribution would be the production of the best possible legislation.

A debate in this House too rarely makes a significant contribution to the framing of legislation, so it is encouraging that on this occasion the Minister has announced in advance his openness to proposals from all sources for the improvement of the Bill. There are proposals in the Bill which must meet with general approval—for example, the proposal concerning offences committed by persons who are at the time of the commission of the crime, already on bail in relation to a previous alleged offence is very timely.

Irish jurisprudence in relation to liberty pending trial is one of the most advanced in the world and our courts, particularly in the well-documented case of the Attorney General v. O'Callaghan may be said to have given a lead to all common law jurisdictions on the matter of bail. Bail in ordinary circumstances is a right, not a privilege, and were it otherwise it would be an intolerable injustice to those charged with offences but subsequently acquitted. In this context it is clearly essential that measures should be taken to discourage those who have little doubt that they will be convicted and sentenced to imprisonment and who therefore feel they may commit further crime with impunity since the sentences will be concurrent rather than consecutive. I believe that the proposal in the Bill will be warmly welcomed by all sides of the House.

I hope that the proposals in relation to increasing sentences for the unauthorised taking of motor cars will command general support. This offence, particularly in Dublin over week-ends, takes place so regularly that every car owner can expect to be a victim of it at some time and perhaps more than once. My experience in that regard is that my own car was stolen last Thursday week. Thanks to the Garda and the assistance of civic-minded people it was returned to me 12 hours later. No later than last Thursday my car was broken into outside my home. As Deputy Doyle said, the possibility of citizens in this country being untouched by crime is remote. That was my experience in the last couple of weeks. On two occasions I have been touched by the criminal element in our society.

The proposal in relation to increasing sentences for the unauthorised taking of cars is to be welcomed. The present state of affairs constitutes a grave threat to individual car owners and it has serious consequences for ordinary social life. Those of us who come into the centre of the city from the safety of suburbia — though that is becoming less safe — to, say, the theatre in the evening come out to see lines of cars parked down side lanes with their windscreens broken, as I have seen on two occasions in recent months. That is a sinister development, very much to the detriment of the theatre, cinema and entertainment generally, the development of urban Dublin and the quality of life. I ask the Minister, who has indicated a willingness to listen, to consider making statutory provision in the Bill for some of these additional offences. Pick-pocketing, for example, comes readily to mind. Handbag-snatching in the centre of Dublin has reached almost epidenic proportions and has caused an appreciable number of people, particularly the elderly, to fear a trip to the O'Connell Street area. The Minister should consider a statutory deterrent to this type of crime in addition to the statutory deterrent to car stealing.

Deputy Mac Giolla in his contribution — valuable by his lights; there was much of it that I did not agree with, although I agreed with some of it and do not take exception to what he said — raised the question of the administration of justice in the Courts. The Bill makes a number of proposals in that regard. Most practitioners would favour the provisions which allow formal uncontrovertible evidence to be "read into the record" with the consequent saving of time and expense at trials. It is true that the provision puts an increased burden on those engaged for the defence since they must state whether they require oral evidence and, as a consequence, the opportunity to cross-examine on the evidence so tendered within a specified time. But this will have proved well worth while if the length of trials, and thus delay in cases coming into the list for trials, can be reduced.

The section in the Bill proposing majority verdicts in criminal cases is another serious but, in my opinion, welcome departure from present practice and on balance I am prepared to support it. Practical experience suggests that an 11 to one disagreement is just as likely to occur when the majority favour acquittal as where they favour conviction and a second trial can be an intolerable burden, psychologically as well as financially, on the defendant. Equally, the rare cases where a single unreasonable and intransigent juror obstructs a conviction which is clearly called for on the evidence will disappear. However, I hope that where disagreement still results from a trial under the majority system the DPP will give very serious consideration before ordering a second trial in circumstances in which even a weighted majority of the first jury has been unable to agree. In such a case consideration of time, expense, probability of success and the anxiety involved for the defendant and other parties suggest that a second trial should be the exception rather than the rule.

The proposal that the defendant should be obliged to give notice of an alibi seems eminently reasonable. Since this type of defence is met with comparatively seldom it would not have a great impact on the administration of justice generally. Furthermore, the provision that in all cases the defending counsel will have the final right of reply is enlightened and reasonable. It seems only proper that the defendant or his representative should be able to answer everything the prosecution has alleged against him before the case goes to the jury.

I hope that, having welcomed these proposals, there can be no suggestion that we on this side are opposing for the sake of opposition or opposing every section of the Bill for the sake of doing so. Nothing could be further from the truth. Having endorsed the sections I have just mentioned, which I believe I conscientiously can, I trust that what I have to say about those provisions about which I have serious reservations will be taken in good part by the Government, within my own party and within the House generally. I believe the Ceann Comhairle—it is not fair to involve him —as an eminent jurist in his day would, if he were not sitting in that Chair, agree with me in what I have to say. I will not, of course, embarrass him.

Section 5 proposes a radical alteration in the powers of the District Court which, since the foundation of the State, has been in the nature of things limited to imposing a maximum period of imprisonment of 12 months. This was reasonable because trial in the District Court was held without a jury in a summary fashion and without previous notice to the accused of evidence to be tendered. This limitation was reasonable because, under the Constitution, the trial in the District Court can only take place where the offence is a "minor" offence. In the past superior courts have been critical on occasion of district justices for accepting jurisdiction in offences which could not possibly be described as minor. This not only deprives the accused of the right of trial on indictment and by jury but it deprives the community of the vindication of a proper sentence for a serious offence.

I have no doubt that some case can be made for the extension of the District Court jurisdiction as it has been extended in civil cases. Unfortunately section 5, as drafted, does not make it clear what precisely is intended and I would ask the Minister of State to bring to the attention of the Minister, when he is responding to this Second Stage debate, the need for clarifying exactly what is intended under this section as drafted. He should explain — there is no obligation on him to do so — the phrase "previously sentenced". This leaves it unclear if that phrase extends to a situation where the accused appears, as he not uncommonly does, on four separate summary charges and the District Court, having imposed a sentence on the first charge, is entitled to regard the accused as previously sentenced for the purpose of aggregating the sentences on the remaining charges. I have no intention of engaging in a purely hypothetical critique of these sections and I hope my remarks will be taken in the spirit in which they are offered. My position at the moment is that I am helpfully teasing out a section which causes me considerable conscientious concern. If a District Court is constitutionally a court of local and limited jurisdiction any ambiguity is rightly to be interpreted by superior courts as against the extended power.

The Bill is not without other ambiguities and obscurities of draftsmanship but none, with the exception of an aspect of section 3, of such fundamental effect as section 5. This section as drafted is not, I appreciate, intended to be devious or misleading; quite the contrary. I worked in the Department of Justice as a Minister of State and the people there are of the highest integrity. It cannot be suggested they are imbued with a deep spirit of liberality. They are, as I say, people of the highest integrity and I am not charging any wrong-doing to them in the drafting of this Bill. All I am suggesting is there is ambiguity in section 5 which requires to be clarified and, if the Minister when he comes to reply explains to my satisfaction, if not to the satisfaction of the Opposition spokesman on Justice, so be it.

I turn now to aspects of the Bill about which I have fundamental reservations, namely, sections 3, 16 and 17, but specifically sections 3 and 16. Section 17 may be a restatement of section 16 for particular and specific purposes. Shortly, these sections amount to a revolution in our criminal jurisprudence which would entirely transform the role of the courts in criminal trials. They seriously undermine certain well-established rights of citizens. They contain the potential to undermine the role of the Garda by exposing them to an unending series of cases where the verdict will depend upon the word of the garda against that of the citizen rather than on hard evidence.

It is very noteworthy that the operative part of this revolution is a direct copy of a British proposal—the eleventh Report of the Criminal Law Revision Committee of 1972, which was decisively rejected in its country of origin. It is unfortunate that 11 years later it should receive such uncritical acceptance by the Government and the Minister for Justice. I believe the Minister is willing to listen and, having heard me discourse on this section 16, he will come back to the House and amend this section by totally expurgating it from the Bill. Within my own party I would certainly be proposing that we in Opposition should oppose section 16 in its entirety. If that proposal is not accepted, so be it. That will be parliamentary policy. As of now, I see myself in difficulty on this section.

Five sections of this Bill provide for a situation in which it would be compulsory for a citizen to speak to the police. Those sections are section 14, 15, 16, 17 and 18. In sections 14 and 15 the penalty for non-compliance is a prison sentence. Happily, this is mitigated by the provision that a statement made following a requirement under these sections cannot be used in evidence against the person or his or her spouse. Section 16 is of general application. It provides a compulsion by a threat that an inference may be drawn from a failure to mention at the investigatory or charging stage a fact subsequently relied on in the defence. I am mainly concerned about section 16. I have a deep concern about its unreality. It is an almost verbatim copy, as I said earlier, of clause (1) of the draft Criminal Evidence Bill published in the interim report of 1972. It is reasonable to assume that the thinking underlying the present proposal is substantially that set out in that report and to use that committee material to elucidate the proposal. It may also be significant that the report was rejected in its country of origin, namely Great Britain, and attracted opposition from the Judiciary, the Bar, the Law Society and numerous academics. It has been replaced as a discussion document by the 1981 Report of the Royal Commission on Criminal Procedure which specifically rejected any change in the right to silence.

I am suggesting — and I am not criticising the Department of Justice who are not here to defend themselves—that this section was not an original thought or plan or approach to the Bill, as I understand it. Again the Minister can clear the air in that respect. The thinking behind section 16 is a direct lift from proposals which were suggested in the United Kingdom and rejected there because they were unacceptable to members of the Judiciary, members of the Bar, practitioners generally and, as I have already said, academics. This is a very serious situation. We are engaging in that slavish custom of running to the British House of Commons for our own law, but we have the Brehon laws and had our own laws and practices before the common law was forced upon us. We should be original. That is what causes part of the concern about the inclusion of section 16 in the Bill as presently drafted.

There is evidence that the priority given to the right to silence under section 16 reflects, as I say, a misconceived approach to the problem of crime and even a misconceived approach to the problem of crime detection itself. There is no evidence that the police are, in fact, hampered to any great degree by the exercise of the right to silence. The summary of the 1981 Report states at page 7:

Research has indicated that the right is not used by many suspects. The vast majority make some sort of statement.

This view appears to be shared by our own O'Briain Report of 1977 which appears to accept the statement that "confessions" are the cause of detection of 80 per cent of serious crimes. Figures of that order are compatible with the experience of practitioners. Occasionally the case is met of the person who starts to resolve to say nothing and does not deviate from that resolve. Far more common, indeed far more deserving of research and inquiry, is the case of a person who starts resolved to say nothing but in a remarkably short time in a police station or elsewhere changes his mind completely than the case of the person who starts with an explanation of innocence and in a remarkably short time exchanges this for a confession. These phenomena are largely unexplained and are statistically of much greater significance than the isolated cases of reliance on the right to silence.

We must discuss the effect of section 16. Under that section an inference adverse to an accused person may be drawn from his failure at the pre-trial stage to mention any fact "relied on in his defence" if the fact is such that he could "reasonably have been expected to mention it". The failure to mention may also be treated as corroboration of any evidence in relation to which the failure is material. The pre-trial stage in which the failure to mention may take place is broken down into four sub-categories —(a) on being questioned by a garda endeavouring to ascertain whether an offence has been committed, (b) on being questioned by a garda endeavouring to ascertain by whom an offence has been committed, (c) on being charged with the offence, or (d) on being informed by a member of the Garda Síochána that he might be prosecuted for that offence.

It is noteworthy that the provisions of this section apply to every offence once the effect of the section has been explained to the accused in ordinary language. If I may just divert here for a moment, it would need to be explained in ordinary language. If the section is brought into law, which I hope it will not be, the draftsmen themselves should have another look at it. Certainly, it is not couched in ordinary language. I know that it must be explained, or an attempt made to explain it in ordinary language to the accused, but section 16 as presently drafted, apart altogether from what it expresses, is one of the greatest pieces of legislative gobbledegook ever to come before this House. It represents a lawyer's paradise and a hell-hole for the accused. If the accused, as he is entitled to do, wishes to defend himself in certain circumstances, he will pick up section 16 of this Bill, then an Act, and try to interpret it. I believe that at the end of the day he will be committed for insanity. It is a disgraceful piece of drafting and leaves a great deal to be desired. That is not a criticism of anything or anybody, because I have never been in the business of criticism, but I am just pointing out the realities. That is what we are about on this Bill and we must help the House to bring about legislation which is comprehensible and understandable to the so-called lowliest citizen, the ordinary man in the street.

It is also noteworthy that the four situations in which failure to mention, as I have already indicated, may take place are all stages at which, typically, the accused does not have access to legal advice. Every accused sent forward for trial has been asked at the end of the preliminary cross-examination in the District Court whether he wishes to say anything and at this stage he has almost invariably had access to legal advice. Also at this stage there is the facility for and an obligation to record verbatim what he said, yet this formal stage is excluded from the section.

The section concerns itself with the time of the investigation where there is generally no legal advice, certainly no impartial recording system, when the accused is more than likely to be in custody and without advice. That flies in the face of everything that we believe in concerning jurisprudence in this country.

On the other hand, once the effect of this section has been explained or said to have been explained, there is no necessity that the person being questioned need even be a suspect at the time of the questioning to which the alleged failure relates. In other words, an entirely casual conversation could be sufficient to bring the section into operation.

It is also noteworthy that the section does not confer any right on the Garda to information in general or to any specific sort of information. We are here under this section attempting to assist the Garda. It does the very reverse. Accordingly, no specific use can be made of it by the Garda at the investigation stage. It comes into practical effect only in the event of certain things transpiring at a subsequent trial. It would therefore appear to be directed at increasing the already high conviction rate, rather than the detection of crime which is where improvements should be sought.

Again, it is noteworthy that the English report from which the inspiration for almost all the wording of section 19 proceeds takes a broad view of the meaning of the phrase "relied on in his defence". At paragraph 36 of that report it is stated:

Usually we think it would be sufficiently clear from the cross-examination of the witnesses for the Prosecution whether a fact is being relied on in this way and then the Prosecution would be able to adduce evidence that the accused did not mention it when interrogated.

It seems therefore that the section would be available for use even against an accused who does not give evidence. Lord Devlin likened the English proposal put forward by his own contemporaries to an amendment to a civil procedure whereby a defendant on being served with a writ had to go immediately to the office of the plaintiff's solicitor and there submit to interrogation, without advice, on his defence to the statement of claim which had not yet been delivered.

In three of the four situations in which the section may be operated, the charge itself, and a fortiori the evidence to be adduced in support of it, is entirely hypothetical. The great majority of people will have no idea what is or is not material to their defence and considerable research and consultation may be necessary before their legal advisers come to a conclusion on this matter. Many matters raised in cross-examination may be raised in a purely exploratory manner or for the purposes of exclusion. It would be an intolerable burden on the conduct of a defence if the cross-examiner had to keep in mind, in relation to every topic, the prospect of giving rise to an “inference” under the section.

Again, the section seems to assume that the type of matter relied on in defence is sufficiently simple and straightforward to be within the knowledge and understanding of the average person questioned — we are talking about the ordinary person in the street — so that there is no reason he should not mention it to the police. In fact, in an English investigation of 324 jury trials 120 only turned on straight forward physical facts and the rest on more complicated matters such as intention, knowledge, self-defence and so on. It is simply unreal to expect a suspect to dilate on such a defence without advice.

It is noteworthy that section 16 goes further than merely encroaching on the right to silence. It does so in a specific way, by seeking to compel the defendant to reveal his defence. That is one of the most serious defects of section 16, that the defendant should be requested, urged or compelled to reveal his defence.

It places emphasis on the extra judicial interrogation and this emphasis will in fact become the dominant element in many criminal trials. It carries the substantial risk of an individual being convicted, not because there is evidence against him in the traditional sense of the term but because he is ignorant of the law or too cross-grained or too distrustful of the Garda, or too inarticulate, to have put his defence immediately and without advice, or simply because he has done so but it has not been recorded. Jeremy Bentham, on the subject of extra judicial interrogations, said two centuries ago:

The information derived from (them) is necessarily incomplete and fallacious; for how much of what the accused may have said extra-judicially reaches the Judge? Only so much as the opposing witness is able and willing to recollect; and even in this what security is there for the accuracy of his memory and the veracity of his character?

The English Criminal Bar Association have listed a large number of reasons, compatible with innocence, whereby a person might abstain from making his defence in the circumstances envisaged by this horror section. Many of these are self-evident after a little thought, but to them I would add that to disclose one's defence, before the trial has begun and before it is even certain that it will take place at all, to the agent of the adverse party, who may or may not record it and who may even be in a position, if he wishes, to destroy the evidence on which it is based if he knows of it, in all cases calls for an act of faith and in some cases would be extremely unwise.

Since almost all criminal trials at present contain evidence in relation to what the accused said, or the fact that he did not say anything, it is reasonable to expect that this section would be relevant to almost every case of crime coming before the court. It seems likely that each effort to apply the section would involve an issue or trial within a trial. This trial would involve matters of both fact in law and at least 12 such issues could arise. They are:

(1) It would be necessary to establish in all cases that there was questioning before a charge either to discover whether a crime had been committed or to discover who had committed it.

(2) Alternatively there would have to be proof of a charge or that the suspect was informed that he might be prosecuted.

(3) There would then be an issue as to whether an explanation in ordinary language of the effect of section 16 sub-section 1 had been given.

(4) Whether the explanation explained the section correctly and whether the language was in fact ordinary and comprehensible.

(5) There would in many cases be an issue as to whether a particular fact was, or was not "relied on" in the defence.

(6) Whether it was a fact which was or was not mentioned by the accused to the police and, if not,

(7) Whether it was a fact which could reasonably be expected to have been mentioned.

(8) The question of whether any, and if so which, inferences could be "proper" would arise in every case and in many cases the question of,

(9) Whether such inference was capable of corroborating any evidence in the case would also arise.

(10) The question of whether there was any evidence in relation to which the failure is material would also arise and a number of general issues would be present in every case such as,

(11) Whether the circumstances of the questioning, apart from the section, were such as to make it admissible and (12) whether the questions and the answers to them had in fact been correctly recorded.

The above 12 examples are by no means an exhaustive list of the possible issues which might arise in the operation of the section but probably exhausts those likely to be met in daily practice. They are very self evident. When the Minister comes to explaining the section as drafted, and his philosophy and meaning, will he deal with the points I raised?

The Chair has been worried for some time about the Deputy's contribution. The Deputy of course must deal with sections to which he has fundamental objection but Second Stage is not intended to be a Stage when each section is gone into in detail with a fine comb. That is a well-established principle of debate.

I agree with the Chair but this section is so fundamental and important that when it comes to Committee Stage I do not believe I will have an opportunity to discourse for as long as I would wish to. That is why I am putting the Minister on notice. I accept the point the Chair is making. The Chair is correct in principle but this Bill is perhaps one of the most important pieces of legislation the House will see in the history of this Dáil. Section 16 is so fundamental to the change in jurisprudential attitudes — it proposes to revolutionise certain aspects of our law—that it must be dealt with in depth. All I am doing is trying to assist the Minister to prepare a better Bill.

I sympathise with the Deputy and I know the importance he attaches to the Bill and what may be involved in it, but perhaps the Deputy would be discharging his duty if he put the Minister on notice that in his opinion sections so-and-so amount to so-and-so or involve so-and-so.

I should like to mention one final point, and it relates to the constitutionality of the proposal and its compatibility with the present principles of law. Reservations must be had on the constitutionality of the proposals. These reservations substantially depend on the view of the privilege against self-incrimination, expressed in the maxim, no one may be compelled to incriminate himself before the law. It is summed up in the legal phrase, “nemo tenetur se ipsum accusare”. That is a fundamental legal law that goes to the root of what I am saying in relation to section 16 and this is where the constitutionality aspect may arise.

Support can be had for this point of view in the case of the State (McCarthy) v. Lennon, (1936) Irish Reports, page 485, which was dealing with a statute amending the Constitution by legislative act as was possible under the then Free State Government. In that case one of the majority said:

That a person accused should be compelled to answer questions which tend to incriminate him, and that the answers given by him under compulsion should be used to obtain his conviction, is undoubtedly contrary to the Common Law of England and the Constitution of a country with ideals such as those of the United States, and was contrary to the Constitution of the Free State as originally adopted.

The Chair has asked me not to deal in detail——

I do not want to be unfair to the Deputy or to interfere with his line of argument. All I am saying is that I do not think our procedure intends that each section should be teased out with a fine comb and in detail but that does not mean that any Deputy is not entitled to put the Minister on notice of what he thinks the section means. When it comes to Committee Stage, within reason — and reason would be very generous — the Deputy would be entitled to argue and counter-argue on each section.

When it is realised that the provisions of section 16 will be operated with the broadened powers of arrest under section 3, the extent of the transformation in our system of criminal justice will be apparent. When one combines the proposals in section 3 with those in section 16 the revolution is almost complete. Heretofore, apart from arrests under the Special Offences Against the State Act, arrest has merely been a mechanism for securing the attendance of the accused at court. There was a requirement that the arrested person should be brought before a court as soon as practicable. For the first time in relation to non-subversive offences this Bill proposes the introduction of extra-judicial interrogation in the context of custody. This is revolutionary. Obviously the Bill was introduced to have it discussed in this democratic Parliament, but sections 3 and 16 must be seen together.

The sections are likely to undermine the image of the Garda in the eyes of many sectors in the community. We do not want that. We want to be seen supporting the Garda Síochána and the institutions of State. I am glad to see Deputy Shatter in the House. He and other Deputies must support me in my comments on section 16. I believe certain members of the Government have reservations about it. I know how the parliamentary process operates and I do not expect to hear members of the Government coming out in opposition to the section. They have collective responsibility: they have a discussion on the matter, a vote is taken and they are amenable to that decision. The majority of the Government have decided on section 16, but surely there are some voices on the backbenches of the Government parties who will support me in what appears to be my lone and lonely opposition to section 16 and section 3. In the 1970s I opposed a certain Criminal Justice Bill much to my disadvantage and I see myself in the same position almost 14 years later. At least I cannot be accused of being inconsistent. My opposition to section 16 is not new: rather it is based on a consistent attitude as to what should be contained in our criminal and civil law.

The section is likely to undermine the image of the Garda in the eyes of many in our society. Furthermore, experience has shown it is a wasteful and inefficient policing tool. Most recent figures for the operation of the Offences Against the State Act show there are nine arrests under that Act for every one person charged as a result of such an arrest. These figures call for more explanation. No explanation is generally forthcoming because the Garda, if asked for the reasons for an arrest, will generally and possibly properly claim privilege. However, when I say "possibly" there is a question mark in my mind after that word. It is difficult to see how the increased powers of arrest can be adequately supervised as no details have been forthcoming of the proposed complaints tribunal. Deputy Doyle in his valuable contribution said the Bill should be introduced before the complaints tribunal but I do not agree with that. The reverse should be the case. I should have thought the Minister had an obligation to bring forward the complaints tribunal and to have that matter and the Bill discussed more or less side by side. Whatever regulations or legislation may be necessary for the complaints tribunal should be set alongside the proposed Criminal Justice Bill.

The provision that statements made by suspects may be tape-recorded is wholly nugatory since there is no obligation to tape-record and it is specifically provided that failure to do so will not cause the material obtained to be excluded from evidence. This Bill is riddled with ambiguities and inconsistencies and the more my colleagues and I study and research it the more its defects become self-evident. As far as I am concerned, there is no ill-will towards officials of the Department of Justice. I have found them to be decent, good-minded civil servants. They cannot be accused of liberality, but that is only a small weakness and I do not condemn them for that. I am not engaging an argument against officials or the Minister. I am just pointing out the inconsistencies in the Bill in the hope that it will be a better Bill at the end of our discussions. I offer my views in a spirit of goodwill and in a spirit of reconciliation.

Experience in the UK jurisdiction would seem to be very acceptable to the Government, the Minister in particular, but experience in that jurisdiction suggests that when tape-recording is mandatory a sudden increase is reported of confessions at scenes of crimes and on the way to police stations.

This is another serious charge: these provisions of the Bill constitute an extraordinary measure in terms of the extraordinary problem in relation to crime which now exists, and this has been justified by the Minister. The worst type of legislation this House could be asked to consider is legislation under pressure or which is precipitated by certain circumstances which happen all of a sudden. That is the worst type of legislation. I agree we have a very serious crime problem, particularly in this city. I have said that certain sections of the Bill are to be welcomed, but I hope other sections will not be pursued. I hope, in other words, that the welcome sections of the Bill are not being used as some sort of cover-up for provisions that change the whole face of our criminal jurisprudence. I have repeated ad nauseum that section 16 will change the whole complexion of our criminal law. I say for the second time that its constitutionality must be examined in the most serious way.

The Minister has been vague—I do not say vague out of malice, but perhaps vague from lack of depth of thought — in regard to the safeguards he proposes. He has been silent in regard to the details of the proposed complaints tribunal. I hope that when he is replying he will give us some details about the type of complaints tribunal he intends to set up. The lack of information in this regard is simply asking the House to consider the Bill and the complaints tribunal in blinkers.

As I have said, the Bill arises from an extraordinary situation which we hope will be of fairly short duration. Therefore, serious consideration should be given to the suggestion that the Bill would be given only two years duration before being reviewed by the House, by regulation. I make that suggestion in all seriousness. There is every possibility that the Government may try to steamroll sections 16, 17, 18, 3 and 5, but if that happens the Minister should undertake, if only in order to lessen the teeth of the Opposition, to have the Bill here for review after two years. That is not an unreasonable request, though it is unusual because this is an unusual Bill. I do not wish to engage in hyperbole or extravagant language in my condemnation of section 16. That is not my form, but I must ask the Minister to be cúramach, to take it easy, to have a look at section 16 and possibly lift that section out of the Bill.

I have been speaking for more than an hour and I do not want to deprive others of the right to speak. I will have an opportunity on Committee Stage to tease out the individual sections when they come before us. I should like to repeat that I will be urging my party to oppose section 16 in its entirity as it has been drafted because of its revolutionary nature in regard to our jurisprudence. I will be doing that in the parliamentary party and in the legal sub-committee of the parliamentary party. I will be doing it inside and outside the House. If at the end a majority of the parliamentary party and the legal sub-committee want the Bill to remain in its entirety I will be subject to whatever is said at meetings of the two bodies. I am a complete democrat and will always willingly subject myself to the views of the majority. There will not be any open revolt from me in relation to certain sections of the Bill. There will be a quiet revolution throughout the parliamentary democratic process through which the sections I have mentioned, if not opposed, will be amended in the way I have explained. The views I have expressed are my views entirely and I accept fully responsibility for them. If there is any suggestion of odium flowing to my parliamentary party from what I have said, I do not want it to happen. I stand on my own in the views I have expressed, and so be it.

I welcome the Bill and congratulate the Minister for having brought it here so soon after assuming office. I assure Deputy Andrews that his sincere contribution will be noted and considered by the Minister. The Minister said in his speech here and through the media that he welcomes any reasonable proposals and suggestions and that where possible he would take them into account.

One can understand the feelings of Deputy Andrews and other leading practitioners. Both Dáil and Seanad are fortunate to have so many legal practitioners among their membership. It is important that their professional expertise is available to the House in debate but it is equally reasonable to suggest that the views of those not in legal practice, who represent many sections of the community, would be heard.

We have been hearing about criminal justice legislation for a number of years. This Bill is not something which suddenly sprung out of the back pocket of the Minister for Justice. In 1979, when I first ran for an election for my party, this was an issue, because since the early seventies, when the relatively tranquil existence of life in the country was shattered in a very dramatic and sensational way with the onset of violence of all kinds motivated mostly by people purporting to have political aspirations, there has been a demand from the public for this Bill. This Bill has been in the wings when Fianna Fáil were on those benches and Fine Gael were in Opposition. I believe the conclusion eventually must be that it is very reasonable and acceptable because there cannot be that much division, disagrement or lack of understanding about what is attempted in this Bill. When we look at the various Bills which have gone through this House in 1924, 1951 and the Criminal Procedures Act, 1967, dealing with the criminal justice area we must question if as a society we are being fair to the institutions of this State which are responsible for upholding the law, and the public at large.

I know a lot of people would question Governments in the years between 1967 and 1983 who have not examined the needs and met the changing situation with legislation. I believe in this Criminal Justice Bill. I accept Deputy David Andrews' remarks that there are features in it which may have to be examined and looked at again, but I believe the Bill is long overdue. In the ideal world a measure like this would not be necessary and I am sure most Deputies would prefer if the Government had not to bring in a Bill like this. The reality is that the Bill is very necessary if there is to be any real prospect of reducing the incidence of crime. I believe that fact is widely appreciated in the House.

I do not believe that everybody realises how serious the crime problem has become in some of our cities and towns. The problem in some parts of Dublin is very serious and is damaging the whole fabric of social life. The Deputies who have spoken so far have mentioned particular incidents they have first-hand knowledge of. Anybody involved in the by-election campaign in the city centre at the moment is once again being made aware of the life of the average citizen and they are appealing to legislators to do something about it. One does not want to sound alarmist, but I believe it has gone beyond that point. In some areas many people, especially the elderly, are afraid to leave their homes unaccompanied after dark for fear of being robbed, mugged and indecently assaulted. Parents in those areas are afraid to let their children out of their sight. Even the short walk from a bus stop to people's homes has become a terrifying ordeal. This is not only happening in specific areas which could be called deprived areas. I live in Foxrock and my sister at midday was mugged and knocked to the ground by men who stopped a car, came up behind her and hit her. So it is not necessarily in deprived areas this is happening. I often feel safer in deprived areas than I do in some middle class areas.

Vandalism seems to be rife in housing estates and in shopping areas. People cannot leave their property unattended for even brief periods. That is not all. Many people do not feel secure anymore even in their homes because of the number of burglaries taking place. It is a sad reflection on our society that this should happen and that so much violence and mindless destruction of property should be evident all around us. The picture that I as well as others have painted indicates clearly to me that crime is a most destructive and disruptive force. It is a denial of the most basic of our rights: the right to be free, the right to be secure in our persons, in our property and in our homes, the right to be left alone. It is the very antithesis of freedom, the right not to feel fear. I do not believe therefore that any reasonably minded person could view the Bill as repressive or in any sense infringing our fundamental freedoms. I believe the contrary is the case. It is the criminals who are the real oppressors. It is they who day in and day out deny to ordinary people their basic human rights. It is they who threaten our freedom. By giving the Garda powers which they need to detect, apprehend and secure conviction of criminals this Bill is not a measure which curbs freedom but one aimed at restoring it. This Bill introduces much needed reform in the area of justice. It does so in a way which I believe is balanced and fair. I know for certain that my colleague in the Department of Justice and the officials in that Department went to great pains to ensure that this balance was arrived at. It was not approached in any cavalier way. I am not suggesting anybody said that. It was very carefully thought through. With regard to the powers given to the Garda to detain suspects, I believe the permitted period of detention of six hours initially, followed by a further six hours on the authorisation of a chief superintendent of the Garda, is reasonable. It is moderate when compared with the period allowed at present in Britain and Northern Ireland for ordinary crime and very much less than the total of 96 hours proposed under the British Government's Police and Criminal Evidence Bill. As the Minister said when introducing the Bill, the police forces in most democratic countries in Europe are empowered to detain suspects for at least 24 hours on the basis of reasonable suspicion. I cannot see, therefore, how it could be alleged that to introduce a similar provision here, bearing in mind that it is for a shorter period, could ever be regarded as wrong. The question many people will be asking is if the permitted period, even allowing for the addition of a period between midnight and 8 a. m. during which there is no questioning, is adequate for very serious offences such as rape or murder.

I am glad the Minister has introduced reasonable safeguards and that further safeguards are proposed. I believe it is right that detained persons should be informed of their entitlements and allowed access to a solicitor. That is especially important for young people and for those who are not very literate, articulate or well informed. I believe the Garda should resort to arrest and detention only where it is absolutely necessary to do so and never as a matter of routine. There is much to be said for them continuing to get people to co-operate even to the point where people will go to the station to answer questions on a voluntary basis. Citizens have a moral obligation to assist the Garda in solving crime. Realistically, of course, that will not happen on a wide scale and arrests will have to be made.

One frequently hears stories of the physical conditions in Garda stations not being all they might be. I am not sure how true this is. I have certainly seen one or two detention areas in some barracks and I would like to think they could be greatly improved. I do not believe that we can go on tolerating Dickensian conditions in our cells. If people are to be detained they should be detained in reasonable comfort in good physical conditions. Cells ought to be clean and I hope this is something the Department of Justice will examine and monitor.

It is not difficult to appreciate the concern people feel about the powers given to the Garda to fingerprint and photograph suspects. There would be an understandable reaction that ordinary, law abiding citizens could have their privacy invaded in this way by the arbitrary use of such power. I think, however, that at a closer look the provisions in sections 5 and 6 seem to offer reasonable safeguards. A person cannot be arbitrarily arrested for no good reason and photographed or finger-printed in a station. There must be reasonable suspicion that he or she has committed a serious offence and then the station sergeant or member in charge must be satisfied that his or her detention is necessary for the proper investigation of the offence. Even then photographing and finger-printing cannot be carried out as a matter of routine; the authority of a superintendent is required.

Having regard to the important role that records can play, and fingerprints in particular, in criminal investigation, most people will accept that it is necesesary that the Garda should have these powers. There is provision in the Bill for the destruction of records if people are not prosecuted or if they are acquitted. The Minister has made it very clear that an extremely serious view will be taken of any failure to honour the obligation imposed on the Garda under this provision, even amounting to dismissal from the force. I am satisfied that the safeguards will be effective.

The Bill addressed itself to the difficult problems of offences committed by persons on bail. Many people would undoubtedly welcome a general tightening up in relation to the granting of bail. It would certainly be useful if something could be done about making it more difficult for people to get bail, at all events in cases where there is evidence that the people are likely to commit further offences while on bail. The Minister has made it clear, however, that this is likely to create constitutional difficulties. In the circumstances what the Bill proposes is about the best option available. Consecutive sentences ought to be a real deterrent.

The general welcome that has already been given to the proposal to increase the penalties for unauthorised taking of cars indicates the degree of concern there is about this offence. I understand that the incidence of car thefts is very high, and increasing all the time, but more serious social problems are being caused as a consequence of this crime. All too frequently we read of people being killed or injured and it is also not unusual for the young drivers of these cars to be killed also. Innocent bystanders are killed, high speed car chases cause problems and the ramming of Garda cars is commonplace. There is certainly an urgent need to do something about this offence and the Bill has adopted the proper course.

I find it difficult to understand the concern of those who are opposed to sections of the Bill allowing the courts to draw adverse inferences from the failure or refusal of an accused to account for certain matters. It seems to be no more than ordinary commonsense that a jury would be inclined to take a poor view of an accused person's failure to account for something that points to his guilt, all the more so in circumstances where the accused attempts to offer an explanation at his trial that he might reasonably have offered to the Garda at an earlier stage. Although it may technically be true that these provisions amount to modification of the so-called right of silence, the modification is a reasonable one. We should not attempt to make sacred cows out of this or other principles of our law. Circumstances today differ very greatly from those obtaining when many of these principles were first developed. There is no question that criminal trials today are very much fairer to an accused person than was the case in the past. Each year the taxpayer pays out large sums of money to lawyers to defend accused persons and in many trials no effort is spared to gain acquittals on legal technicalities. Fairness is a very important and necessary principle, but there are limits.

Criminal law and the procedures of trials should be such as to ensure that if the evidence proves beyond reasonable doubt that the accused is guilty he should be convicted, but not otherwise. These particular provisions will help to restore balance to the scales which have in recent times been tipped a little too far against the prosecution. The sections in the Bill dealing with trial procedures contain many necessary and long overdue provisions, virtually all of which, I understand, are already law in England. Many people will welcome majority verdicts because there has been a number of cases in recent times of jury disagreement resulting in retrials. When it is borne in mind that, if even one person is got at, intimidated or unreasonably holds out against the others, the jury are forced to record a disagreement, then the necessity for this measure will be appreciated.

I especially note the provisions in section 28 of the Bill dealing with tape recording of questioning in Garda stations which has been accepted by the Government. I welcome the Minister's announcement concerning the setting up of a committee to examine the question and to report on what needs to be done to introduce it. I hope that the committee will lose no time in setting about their work and bringing in a report with all possible speed.

I should like to refer to the Garda Síochána's perception of this legislation. I cannot speak for all of them but certainly the members that have spoken to me have not been overjoyed at the contents of the Bill, but it is generally believed that this is a measure specifically tailored to suit the requests of the Garda. There are measures that have to be taken. We have to recognise that the Garda Síochána are operating in a very violent society at present. The measures available to them for detention are not adequate and we must look at how we can bridge the gap that has grown over the years between the Garda and the community in which they operate. In doing so I would like to take the opportunity to pay tribute to Derek Nally, who was so closely involved with the Association of Garda Sergeants and Inspectors, because he attempted to bring the working garda up front to be publicly identified, to stand up and answer reasonable criticism and to give an account of the real life of the working garda. I quote from the Garda News of November 1983 an article by Conor Brady in which he describes the contribution of Derek Nally. It is relevant because the Garda and their role are very much under question and criticism at the moment. Mr. Brady said:

It was Derek Nally's first contribution to Garda-public relationships that he was a real, live member of the force. Up to the mid 1970s he was a sergeant, like any other in the force, responsible for his sub-district, meeting ordinary people with their everyday worries and fears. Thus, when he went on radio or television he spoke with the voice of authenticity. The re-assurance thus offered should never be understated. Heretofore, the general public might have believed that the Garda Síochána was comprised entirely of invisible deaf-mutes who had hired one or two men in uniform to stand occasionally in front of television cameras.

This is the nub of the issue. The Garda have not made a sufficient effort — maybe we are all responsible — to create a good liaison in the community. I have often wondered whether this could be because many of the Garda recruits come from rural areas outside Dublin and other cities, and when they come to Dublin or Limerick or Cork they see city people who dress and speak differently and have a lifestyle different from what these recruits are accustomed to. I have watched how they react. The young — or perhaps not so young — Garda recruit sees young people dressed in trendy gear with long hair and his perception of those persons could be that there is something decidedly strange about them and he does not feel comfortable with them. An attempt should be made to bridge that gap for the sake of the Garda and of their operation within the community.

In conclusion, I welcome the Bill and I wish the Minister, Deputy Noonan, every success with it. Most people would prefer that we did not have to introduce such a Bill now. It reflects badly on our society that it should be necessary; but it is regrettable that it is necessary and, therefore, it is our responsibility as legislators to put it before the House and put it into effect. The Government have had the courage to bring forward the Bill and they will have the support of law-abiding people for its successful passage through the Oireachtas. People are reassured by the Minister's statement when the Bill was introduced, to the effect that the Bill will not be put into effect giving increased powers to the Garda until a complaints procedure involving an assessment by an independent person or tribunal has been established. We are talking about the Garda Síochána, a force of 11,000 men and women. Everyone will accept that the vast majority of them are men and women of integrity with a high level of public commitment but, like any sector of workers of that magnitude, some are not living up to the image expected of them or that they should live up to. We accept that Garda recruits do not get a halo when they come out of Templemore. They are human like any other group, so it is reasonable that there should be an authority or a complaints body. Perhaps one could extend it to say that a similar complaints body might be necessary for any other sector of workers and professionals, say the medical profession and the legal profession, in whom the public put trust. I support the measure and I know that the Minister takes very seriously the intent in that statement. We only hope that the powers the Bill gives to the Garda will be used wisely and that as a result we will in due course have a safer and happier society in which everybody can live.

I welcome the Bill and any right-minded person would do so, given the prevailing situation throughout the country as far as the deterioration of law and order, the rising crime rate and so on are concerned. As the Minister of State said, this legislation was very much in the pipeline and the previous Government were considering practically every measure that appears before the House. I am not so sure, however, that just presenting more legislation, however well intended it might be, will have the effect on rising crime in the city and throughout the country that is desired. On the one hand you have the Garda force working very well and efficiently and on the other hand criminals, perpetrators of any sort of crime, violent or otherwise being hounded down, and in between we have a huge population — if you like a cliché, the silent majority. There is a fund of goodwill among the community only waiting and only too eager to be involved in any fight against crime. Rather than just presenting legislation I would like to see involvement of the community in that fight. Indeed, I raised this matter previously on the Adjournment when the Minister of State herself was present. The more I see of systems working abroad in that direction, which I have examined, the more I am convinced that this is the right way to pursue the problem. Unless we have the co-operation rather than just the goodwill of people paying lip-service to legislation going through the House, there is a strong possibility that we will not have the success that we as Members of this House feel the putting down of legislation and very strict and strong measures will bring about.

Taking a comparison between America and here you could indicate straight away that there are proportionally more gardaí in Ireland than there are policemen in America. The statistics are 1.7 policemen per 1,000 population on average in America while calculations using the most recent statistics show the strength of the Garda up to the end of 1982 as 3.14 gardaí per 1,000 in Ireland. Those statistics are remarkable. I am not saying for one moment that we are over-policed — far from it. I welcome the on-the-beat patrols which I know are a very strong deterrent to crime on the streets and roads and so on, but the American example shows that there they have engendered an attitude of co-operation within their communities. This to me is a great fault in our efforts to combat the situation. I am sure the Minister of State on her trips to America became familiar with the practice of encouraging the public there to see at first hand how the police operate. It is not unusual for a citizen to ride on a patrol car around the streets of New York. In that way the citizen is familiarised with the situation. I would like to see something similar enshrined in legislation here.

I am not criticising the Bill. I am merely saying it does not go far enough. There is not enough emphasis placed on involvement by the community. The Minister had an opportunity here of providing a community watch network. The drop in crime in American cities has been attributed to active participation by citizens with the police. In Florida and Detroit the crime rate has actually dropped by 30 per cent. Unfortunately here we are not bringing the community into active co-operation with the Garda and, unless something along those lines is done, we will never be able to tackle crime as it should be tackled. If law is not enforced there will be no success in reducing crime. That is the hard fact. The only way in which the law can be enforced properly is by a real crackdown.

People talk about bringing back the birch. Privately we think about this. Recently someone said to me that the only way in which to maintain law and order was by having a good hanging every so often. That person has a deep sense of justice but he wanted an example made. I am not one for capital punishment or any measures of that kind but, unless the law is enforced, we will not solve the problem of crime. I would love to believe this Bill will bring about a reduction in crime. We had the example of St. Teresa's Gardens where some people took the law into their own hands. Many held the people there were right to do what they did. I do not agree that people should take the law into their own hands but the fact is frustration develops when the law is not enforced and that is where I see a grave danger at the moment. We are not a law-abiding people.

In the matter of civilian arrest, I checked with my local superintendent and he said he had had no experience of civilian arrest. The attitude is more one of being "agin the law". The people do not co-operate. They turn aside. That trend must be reversed. The fight against crime will be successful only when the Garda go out to the people. The Americans are very sensitive to relations as between the police officer and the citizen. All aspects of police work are open to public examination. There is no bar. The public are actually encouraged. Some educational programme should be introduced designed to bring the Garda back into the community. When I was a teenager we had frequent visits from local gardaí who would drop in for a chat and in that process probably gather some possibly worthwhile information. I know the Minister is taking steps to encourage that kind of involvement. Cars are being hijacked everyday. The problem is out of control and some drastic action must be taken straight away.

I call on the Minister to set up two units in the city of Dublin, one on the north side and one on the south side, with the full co-operation of the public. It is not that the Minister would be starting from scratch because all the information is available. He could obtain neighbourhood watch kits which are given out to educate people on how to work in co-operation with the Garda, who lecture in certain areas on how to combat crime within that locality. I am not anxious that that would happen immediately all over the city but I am anxious that it be done well and thoroughly and that the success speak for itself. I am quite sure that the Garda could pick a couple of areas in Dublin where such a scheme would succeed. Garda who come to my home if there is a question of suspected undesirables in the area or burglaries will say straight away that it is very difficult for them to counteract crime of that kind. It is most frustrating, even with the best will in the world, when Garda say that there is very little that they can do about it but that they will record what they have been told and take some fingerprints. There is a great feeling among the community that that is as far as it goes, and there is nothing more that can be done about it.

There is a breakdown in confidence among the public, and this is a communication problem. The Garda and we, as politicians, are to blame for the fact that confidence is not there that the law is being upheld. The Minister represents an area where a high level of burglary takes place. She quoted her own sister as having being mugged, and this also happened to a late district justice. We can all quote statistics from our clinics. What are we to do about it? The measures in this Bill concerning detention and so forth are all very admirable but perhaps my colleague, Deputy David Andrews, would be better qualified to speak as a barrister on particular sections of the Bill which might be contentious. The main provisions of the Bill deal with detention. Other provisions give increased powers to the Garda and it will not come into operation until a complaints procedure involving an assessment by an independent person or tribunal has been established. I am not really sure that this is satisfactory. This is pushing things aside without facing up to reality. People can point to me and ask what I propose to do about it. A very forceful example must be shown by the Garda — a complete shake-up of the entire situation. There are so many good men and women working within the Garda force, and yet one reads in the papers about gardaí spending so much time bringing perpetrators of crime before the courts to no avail. People see cars parked illegally and all sorts of transgressions of the law. There must be a crackdown now on those who break the law, rather than the production of more legislation.

What is to prevent the Minister from getting a community watch system going? The Minister of State referred to the fact that the elderly in our midst are very frightened, that senior citizens are living in fear. As the Garda in certain areas become more proficient in dealing with criminals and the banks and finance houses more efficient in guarding their premises by bullet-proof glass and so forth, the criminals turn to the more vulnerable sectors of society. The legislation we need here is legislation which reaches out to that situation but the present legislation is not doing that. It is giving powers to the Garda without bringing into focus a way in which the problem can be cured. I doubt very much that bringing in more measures is the answer. What I am saying can be substantiated by quoting from police reports in which neighbourhood watch schemes are regarded as a logical extension of the police force in certain countries. They call it community protection.

There are many examples before me from various countries where this system is working to great effect. Why should we not do it here? There is no point in examining the situation. It has been examined. Many of our senior police officers have gone to the United States, examined the system and reported back. Why is there reluctance to initiate these schemes? Many feel that it might become a vigilante force or that people will take the law totally into their own hands. I doubt that very much. That is — although I should not use a pun —"a cop-out", but it is begging the issue to approach it in that way. Many police will say that there is a danger that vigilante groups will be set up. There is a danger if you do not educate the public, and that is where I see the great danger at the moment.

Another measure which the Minister could adopt in an effort to combat crime and about which he should set straight away is the establishment by the Department of Justice of a citizens' support bureau. Here I am getting back to the citizens' support for the Garda and encouraging, educating and co-ordinating the efforts being made by ordinary citizens in aiding the Garda on an overall basis. That is most important, because there is a tremendous fund of goodwill among youth clubs and scout groups and a lot of good work being done within the community. Even in our church-going experience, only of late have many church leaders realised that not to involve the community is a serious failing. This is the failing which is present among us now.

I would like to see the citizens' support bureau system organised much the same as is happening within the Department of Health with the health education bureau, to educate the public in the functioning of the Garda force. Many different means of communication can be used here. We are living in an age of high technology where on Garda Patrol appeals are made for witnesses to come forward and they never come forward. The gardaí face a blank wall if they do not get all the people behind them. Such citizens' support bureaux could initiate programmes through the Department of Justice in schools, colleges and public organisations to make people aware of practical means available in combating crime. In countries with a less traumatic history than ours, Switzerland, the Benelux countries and Scandinavia, which have a strong law abiding tradition, it is not unusual for citizens to exercise citizens' arrests. Such cases could be brought for reckless driving, handbag snatching and petty crimes. There is seldom a shortage of reliable witnesses in the countries I mentioned, but I do not think that is the case in Ireland, because there is not the acceptance of the need for involvement by citizens.

I urge the Minister to give some consideration to the establishment of such an advice bureau. It would meet with great co-operation from the public. The residents' associations, youth clubs and sporting organisations would all play their part. The best example I have seen recently of citizens displaying their energies was the participation by more than 11,000 people in the Dublin City Marathon. Those watching that event must have been impressed. We must work to bring the masses of people within the law and not keep them apart from it. The Minister should consider getting involved in work with local communities. In Dublin we hear talk of no go areas, and I cannot think of a better place to start the work I suggested than in such areas. The Minister should enter such areas with a large force of gardaí and commence this programme of educating people. The work of ban gardaí could be extended to the area of community involvement and policing. Just producing laws will not do enough to solve the problem. In fact, in many cases it will instil more unjustified fears into the minds of people. When we are asked at group meetings why the law is not being enforced we find it difficult to come up with an answer. My response to such questions is that the gardaí are overstretched and cannot cope with the problem of urban crime. If that is the case it is axiomatic that within a few years the problem will get out of hand.

This brings us back to the situation where we will have more law, more court cases and more people going to prison, I accept that we must counteract criminals, but we will not be curing the problem by such actions. That would not represent therapeutic medicine. Such moves would provide an answer at that time but would not provide the preventive medicine. The Minister should take practical action now. The nation in debating this legislation is looking to politicians to protect people. Dublin is being referred to as the heroin centre of Europe. It is appalling to think of that. As a member of Dublin Corporation in 1975 I suggested that something should be done to counteract that problem, but it has all got so remote. It is almost like Parkinson's law. Unless we introduce fresh ideas based on continental examples we will not succeed. If Dublin is considered a more violent city than New York and people feel less safe walking here than in the American city then surely we should introduce measures that have proved effective there. I do not think the provision of legislation will cure this problem. Those of us who have visited New York and witnessed the police walking about with firearms will realise that their presence is a deterrent.

We will have to look at the question of arming the Garda. I would like to see a debate taking place on that issue. Many gardaí say they do not wish to be armed because it might lead to shoot-outs with criminals, but the relations of gardaí who were the victims of such activity say that if their husbands had firearms they would not have been killed. We are living in a changed society from the one we grew up in, and different measures are needed. Our prisons are bursting at the seams. Some people maintain that there is little point telling young children who are involved in petty crime that their actions could lead to them being imprisoned. Many young children are not frightened at that prospect.

This is not a political issue, and Minister Fennell did not realise that when she remarked that her Government had the courage to introduce this legislation. Courage is not needed to introduce legislation that will combat crime. To close an eye to the huge amount of good will that exists in parishes is a big mistake. Finger-printing, keeping records and photographing people are all desirable from the point of view of records, but other measures should be adopted. As the Chair will be aware, coming from a rural constituency, there is a greater awareness of community involvement in rural areas. People living outside urban centres of population have more civic responsibility to their neighbours. They tend to keep a watch on what is going on in their locality. If an elderly woman does not take in her milk from her door it will be noticed and a neighbour will call to see what has happened.

The Deputy will know from his antecedents that my constituency is a very caring one.

I have the privilege of having close associations with that constituency. In rural areas great consideration is given to anything that goes wrong in a community. The cities are bereft of that at the moment. We must make strong efforts to cure the problem.

Debate adjourned.
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