Deputy Coveney is in possession.
Criminal Justice Bill, 1983: Second Stage (Resumed).
Question again proposed: "That the Bill be now read a Second Time".
The Government seem to have deserted the House. I would ask the Chair's opinion as to where we go from here?
We will follow the precedent in the matter and wait for a little while.
The Chair is very kind to the Government side.
He has been reasonably tolerant with the Opposition side this morning as well.
I am simply following the example of my illustrious predecessors.
I accept that the Chair was tolerant enough of my latitude with regard to the flexibility of terminology.
I should like to ask the Chair how long we will be expected to wait for something to happen in regard to the resumption of this debate?
There is no hard and fast rule.
It would be a matter of some little embarrassment to the Government not to have a House.
I propose to contribute to the debate on the Bill.
Into the breach.
The Minister of State is popping up everywhere.
I propose to call on Deputy Quinn to speak. I notice now that Deputy Conveney has arrived to resume the debate.
I apologise to the House.
The Deputy missed the starting gun this morning.
Last night I dealt with some of the specifics of the Bill. Members have expressed concern about the question of inferences and what is to be drawn from them. They arise in sections 16 to 18 and refer to the inferences from the failure of an accused to mention or account for certain matters when being questioned by gardaí. That raises questions about which I am uneasy. It is a very unspecific type of measure which is open to a wide interpretation. I fear it may lead to some abuses. To a layman like myself the measure seems to place some onus on a defendant to satisfy the Garda as to his innocence when being questioned. That seems to fundamentally alter two of the overriding principles in our criminal law system, that the accused is innocent until found guilty and that the duty lies on the State to prove his guilt in court and not anywhere else. If we are seeking to set up the Garda as some type of quasi jury we are establishing a dangerous trend. I have read what the Minister said about the background to the section and the importance he attaches to it but on balance the alleged advantages are outweighed by the dangers. For that reason he should reconsider that measure.
I should now like to deal with the sections relating to trial procedure. Section 19 proposes that an accused must give notice of his intention to put forward an alibi which had not been mentioned previously. That makes good sense and is fair all round. The idea of an accused at the last moment in court trumping up an alibi does his own case little good and often leads to long and unnecessary adjournments. It seems to frustrate the legal process. If a person has a reasonable and valid alibi it cannot possibly hurt his case to have to give prior notice of his intention to produce such an alibi.
I welcome the introduction of majority verdicts in criminal trials. I should like to emphasise that we are not talking about simple majorities but overwhelming majorities, ten out of 12. That is a good measure. It is good that in the case of a person found not guilty the question of whether the majority was unanimous or not is not disclosed because if a person is not guilty he or she should not be put in the position of appearing to have had a less than unanimous view on his or her innocence. The Minister has introduced a good safeguard.
It is proposed in section 26 to provide for the tape recording of questioning. The Minister is to issue regulations in due course about that matter. That procedure is welcome in principle not only because it will safeguard the accused but also because it will safeguard the Garda. I hope the Minister will make it mandatory that there will not be any questioning without a record of what transpires on tape. Section 27 provides for the fingerprinting of those convicted of serious offences. Unfortunately, it is a fact that those who are involved in serious crime tend to get involved again and again. It is entirely prudent and reasonable that fingerprinting of people who have been convicted of serious crimes should be kept.
In the course of his Second Stage speech the Minister referred to the pros and cons of providing for searches of private homes and so on. All western democracies — Ireland in particular — would be loath to agree such a measure if it was not necessary. The prospect of the police barging through the door of a person's house is something we would be apprehensive about and it is clear that the Government are apprehensive about it also. No proposal has been included in the Bill but the Minister has asked us to consider the question. He has told us that his view is that where a person is suspected of having committed the most serious of crimes, murder, assaults involving grievous bodily harm, kidnapping and rape, provision should be made for entering and searching premises. I have some sympathy with that. One could hardly not have sympathy with that view but on balance the right of search should not arise until after a person has been charged. That would limit the value of a search in occasional cases but it would be a better safeguard and would obviate almost entirely a search of a totally innocent party.
I should like to say something about the operation of criminal justice in the only area about which I know in any detail, namely, the Cork region. While this Bill is welcome and is necessary, it is a hollow enough consolation to many people, to the Garda and the forces of law to find that the situation that exists in the courts in Cork has not been dealt with to any great extent. The Circuit Criminal Court operates on the basis of four to five sittings per annum in Cork. That covers a wide area, not just Cork city. The court sits between 40 and 50 days a year and, on average, criminal cases take two or three days. Thus, perhaps 25 or 30 cases per year are dealt with. There are two broad categories involved. Cases where people are remanded in custody have priority and generally they are up-to-date. However, in practice that has meant that those remanded on bail are put on a long waiting list. I understand that now the Circuit Court is starting to deal with the 1980 cases, or will do so at the end of this year. We are practically four years in arrears.
What does that mean? We say a person is innocent until proved guilty. In effect, we are condemning the innocent to four years of mental torture. When on remand they are not told to forget about the matter for four years. The process requires the defendant to appear at every session throughout that period and also to be legally represented with all the consequences as regards costs.
I raise the matter here because I consider it has been going on for too long throughout the term of office of successive governments. The situation is getting worse. It will remove respect for the law and for this Bill which every reasonable person will welcome in its broad aims and objectives. I appeal to the Minister to consider the situation that exists in Cork, which may well be repeated in other parts of the country. For the Minister to complete his long work on this Bill and to leave the courts in the state that exists at the moment would be to only partly do the job. I accept that the Minister is operating under difficult financial constraints but justice must be seen to operate promptly and efficiently as well as fairly. I mentioned the agony and torture endured by innocent people for up to four years in this remand process. There is also the other side of the coin: those who are subsequently found guilty are effectively roaming free for four years having perhaps committed very serious crimes. In addition, it must be extremely frustrating for the victims and for the gardaí who have worked hard to get the cases to court to find that three or four years later the cases have not been dealt with.
This Bill is not in any way a cure-all nor is it intended to be such. Our vastly increased crime rate is a many-sided issue and presents a very complex problem. Some speakers have almost put that forward as a reason for not bringing in these measures but I do not think it is logical or fair to the Minister or the Bill before the House. The crime problem has been and is being exacerbated by our current economic difficulties but there is little evidence to suggest that crimes are committed exclusively by the unemployed or the underprivileged. The idea that economic problems automatically mean an increase in crime is not completely the case because the matter is considerably deeper and more complex. Our crime problems are also exacerbated by the example of nearly 15 years of sickening violence, alienation and despair in Northern Ireland. That has an inevitable spillover here. Nevertheless, it is ironic that the undeniable material improvements of the past 30 years, in living standards, in education and in social services, have been accompanied recently, at any rate, by a rising wave of crime and a breakdown in standards of behaviour towards and respect for one another, particularly in built-up areas.
This Bill, in any sense, will not reverse that trend. It is a much deeper national problem which the Government, the churches, sociologists and the people in general must address and try to solve in the years ahead. But in the meantime the Minister is right, and I think all sides of the House agree that this Bill is long overdue. It provides some of the tools and aids, both practical and psychological, by way of deterrents and detection, which will be of great value in the front line battle against serious crime and hardened professional criminals. Therefore, I welcome the Bill, though with some reservations, and I commend it to the House.
I intend to be brief because the Fianna Fáil approach to the Bill was set out fully by Deputy Woods in his substantial contribution earlier. I should like to point out a few problems that occur to us. I agree with Deputy Conveney that though the legislation is welcome, legislation of itself can do very little to combat the sort of crime wave with which we are faced. This is not just Ireland's experience — it is being experienced throughout the world.
When we come to deal with crime, particularly the serious professional type, we require a far more sophisticated police investigation system and better trained personnel. We need a more efficient prison system of which, recently, we saw a breakdown. We need a more efficient judicial system to cope with offences when they come to trial.
Therefore, the three elements necessary are more personnel, a more efficient police system and the courts. In regard to the courts, I suggest that we should have greater utilisation of them and greater use made of the time of judges and district justices. There is a notable lack of despatch in regard to bringing people to trial and the sentencing of them. For instance, we have not considered a new radical approach whereby a judicial system would be available for 24 hours a day in metropolitan centres, as exists in London, where people can be brought promptly before the courts for a whole range of minor offences that do not require trial by jury. In London and in other British cities, and almost universally throughout the world, courts sit around the clock.
Is there any reason why our courts, concerned to deal with petty crime and vandalism which occur during the night in metropolitan areas, could not sit around the clock to try them and hand out sentences immediately? Therefore, I would welcome the appointment of more district justices in the metropolitan area, longer sittings in which several judges would participate because I realise we could not expect one district justice to sit around the clock. We also need more courthouse facilities, but above all we need the assurance this would give to the Garda who are now frustrated by delays in bringing offenders to trial. To provide this 24-hour service, justices would have to work on a rota or shift basis. This would get rid of the continual adjournments, procrastination, the delays, particularly in regard to minor crime which, oddly enough, affects people most—stealing cars, assaulting people, minor larcenies and burglaries. That is the type of crime that takes up so much of the time of the Garda and which frustrates them. Apart from the provision of proper prison facilities, a key element is speedy trial and conviction in respect of minor offences. I appreciate that when a crime merits more than five years' imprisonment the procedure should be slower.
We in Fianna Fáil would have liked to see side by side with this legislation a Bill to deal with the complaints procedure. We appreciate it was not possible to incorporate details of such a procedure in this legislation but we should have a parallel Bill so that we could consider both simultaneously. That would have shown evidence of goodwill by the Minister and it would have set many people's minds at rest because they could then see the whole picture of the penal procedures in the Bill.
There is much detail in the Bill which can be given detailed examination on Committee Stage. This is obvious from the attitude we on this side have adopted. In broad principle we agree with the Bill subject, of course, to Committee Stage scrutiny. We agree with the Government that some legislation to strengthen the hands of the law authorities is essential. Indeed it is rather ironical that when I was Minister for Justice 15 years ago we had the bones of this Bill ready in the Department. However, it is better late than never. Perhaps it took the crime wave of recent years to underline the importance of the matter.
One of the main features concerns detention and we agree in principle with that aspect. We may have some ideas on Committee Stage in regard to detail but certainly it is necessary to have a period of detention for serious crime, that is, crime meriting five or more years' imprisonment.
Due to a Supreme Court decision some years ago there has been a difficulty with regard to the granting of bail. That decision was based on an interpretation of the Constitution and it was found that bail was a matter of right. One way of dealing with the problem would be by an amendment of the Constitution, but that would be a rather heavy handed approach. We have at present the ludicrous situation where people are getting bail for the asking and then proceeding to commit other offences while on bail, in many cases putting themselves in funds for their legal defence. An attempt is being made to deal with the problem by providing in the Bill for consecutive rather than concurrent sentences for offences committed while on bail, thus getting rid of the present anomaly whereby the sentence for the offence committed while on bail is concurrent with the sentence for the original offence. There are further penalties for failure to surrender to bail and the sentence for that also will be consecutive. This is a reasonable approach.
New penalties apply to two areas of crime which have reached very serious proportions, particularly in Dublin. I refer to the stealing and damaging of motor vehicles and to the alarming increase in the use of firearms. These areas are specifically dealt with in the Bill and increased penalties are provided.
The feature of the Bill which has aroused the strongest criticism from the legal fraternity relates to the right to silence. I can understand the reasons for this and I agree that the right to silence will no longer be the absolute right it has been heretofore. For many years there has been in common law an absolute right to silence on the part of an accused person. That right was protected in the courts because no reference could be made to the fact that the accused person made no statement on his apprehension. The court and the jury could not comment on that aspect. Under this Bill inferences can be drawn by the court from the failure of the accused to mention or account for certain matters. Up to now no such inference could be made but the court or jury may now draw inferences as appear proper if the accused offers an explanation at his trial which he could reasonably have been expected to mention to the Garda when being questioned or charged, or if he fails or refuses to account for any object, substance or mark or for his presence in a particular place at or about the time at which the offence was committed.
Notice taken that 20 Members were not present; House counted and 20 Members being present.
With regard to the right to silence, the only thing that is provided in the Bill is that the absolute right to silence, which has existed up to this and was such an absolute right that it could not be referred to by the court or brought to the jury's attention, is now being modified. While the accused still has the right to silence certain inferences can now be drawn from that by the court and by the jury. There are certain protections written into the section that no inference can be drawn unless the accused is told in ordinary language at the relevant time what the effect of such failure might be. There is a specific provision that the accused may not be convicted solely on such an inference. At the same time it is an important change in the law.
I suggest that some change in the law in this direction is necessary for a very important reason. The big danger to society from modern crime is that much of the serious crime is no longer of a casual nature. Serious crime tends more and more to be a professionally organised business where people go into it for big commercial profits like in the drug pushing area. Those people are fully advised and are fully calculating. They approach the whole matter in a very calculated way. The most obvious thing for them to do as professional criminals is not to say anything, do nothing, point out nothing and not give any explanation, just total non-co-operation with the police force. If that is done in a calculated and professional way and no inference can be drawn from it in regard to an explanation not given that is a very serious deterrent regarding the ultimate conviction of the person concerned. The evidence must be strictly limited in that type of case to what the police found on the particular scene. Provided the accused person says nothing, points out nothing, and does not give any explanation, provided his trial is defended on that basis with the type of skill a professional criminal can hire, it is difficult to get a conviction. That is the reality in regard to serious professional crime at the moment.
The Bill is an attempt to deal with that. It is an attempt to allow the court and the jury to draw inferences from a non-cooperative approach on the part of an accused person while at the same time providing that that alone is not sufficient to convict a person. There must be the hard evidence that is required in all such cases to prove a case but the fact of silence and the fact of non-co-operation can be raised by the court and brought to the attention of the jury for them to draw their inferences from those facts as ancillary evidence to the main evidence of hard proof, which will always be essential.
This is a very difficult concept to bring into our law in the sense that the common law has traditionally held its right of silence. It has been in the European system of law for centuries. It is a step towards the inquisitorial system which operates in continental countries. I welcome this provision but we must look at it very carefully on Committee Stage. It is an important legal step in the amendment of the criminal law as it existed for many years. Section 16 takes up a whole page, section 17 also takes up a page and section 18 takes up almost a page. The drafting of those sections appears to me to be cumbersome. I appreciate the difficulties involved in this very important change in our criminal law. We will have to look at it carefully on Committee Stage because I have a feeling that those sections will be a lawyer's paradise at some future date in regard to interpretation. We may find ourselves getting into deeper legal trouble in regard to interpretation and we may find that we are not getting to the problem which needs to be dealt with. That is a matter for Committee Stage.
In principle I am in favour of the attempt to grapple with this problem. I recognise the need to do something about this because of the growth of professional crime. I am making a cautionary few remarks and saying that this will have to be examined very carefully on Committee Stage unless we leave a legacy which will find these sections going up and down from Criminal Courts to Courts of Criminal Appeal to the Supreme Court and so on over a period of years. We do not want that. We have waited long enough for this Bill and it is important that we get it right.
The other major area of reform in regard to court procedure lies in the actual trial procedure reforms which are set out from section 19 on. These reforms are generally welcome as far as we are concerned. The important one, which is the most radical from the point of view of making a change in the criminal law, is that majority verdicts are now being introduced for the first time. This is not really a radical departure in the sense that ten jurors out of 12 must vote for conviction. Indeed there is an argument for having a nine to three majority and ten to two is a modest departure from the present unanimous majority verdict. No real injustice will be done if ten people find for conviction. There is no doubt that it will get rid of the odd crank who sometimes sits on juries, who digs his heels in and refuses to agree with the majority even though the evidence may be overwhelming against the accused. This can cause a serious injustice when you consider the cost of apprehension and bringing to trial a criminal who is obviously guilty. As far as we are concerned this is a welcome provision.
I want to emphasise our support for the Bill in principle, especially in regard to crime in the Dublin metropolitan area where, with 30 per cent of the population we have 60 per cent of crime. This is very alarming and is causing serious social disturbance and apprehension to the ordinary citizens of Dublin city and county. It is a situation that any government would have to cope with and, because we recognise it as a serious social problem, the Government should be facilitated with this Bill subject to amendments which we will suggest on Committee Stage. We recognise the basic need for a Bill of this kind to strengthen the hands of the Garda Síochána, the courts and everyone associated with the apprehension, bringing to trial and conviction of criminals.
I should like to come back to a point which I made initially that, however welcome the principle of the Bill and even if the legislation will be effective, it is only an umbrella. The real work has to be done in the area of administrative reforms, the Garda Síochána, the prisons and the courts. We do not want legislation for that, it means better training, better equipment, more personnel, a more sophisticated approach, more court sittings, more judges, more courthouses and more immediate and speedy trials. The whole area of administrative reform in regard to the operation of our legal and judicial system is far more important than any legislation this House can bring in. Legislation can be a help but, unless the basic administrative judicial machine is working effectively and efficiently, then society will not be able to get to grips with the crime that exists at present in our urban areas, particularly in Dublin. Unless we get this area right within the next few years, there will be no economic investment or jobs in this country. The important thing as far as jobs, investment and social progress are concerned, is that we live in a free society where citizens as a normal rule behave and, when they do not, they are brought to justice quickly and fairly. Unless that last factor is operating and seen to be operating effectively by people at home and abroad who wish to live and invest here, we will not make economic or social progress.
The reasons for this Bill and the total explosion in our crime levels today are startling. If we look at the statistics for crime from the crime reports by the Garda Commissioner to the Minister for Justice from 1980 to date, we can see that crime is the fastest growth sector in our economy. How tragic this is. The total indictable offences committed and recorded — this excludes of course the number of unrecorded crimes — in 1980 was 72,782; in 1981 it was 89,400 and in 1982 it was 97,626. If we look at the sub-division of these very serious crimes we will see that in 1980-81 larceny and fraud had the highest growth under the overall heading and in 1981-82 we see the viciousness of the new crime wave in terms of violence against people and property as the highest growth rate.
Underlying all this in the urban areas we see the startling situation in relation to drugs. The number of seizures in 1982 over 1981 increased by 55 per cent, from 1,204 to 1,873 and the number of persons found with drugs in their possession increased by 26 per cent, from 1,256 to 1,593. We do not need to look at the statistics to analyse how serious the problem is and how fast it is growing. We see the total waste of resources that the Government have to expend to deal with the problem. Expenditure for the Garda Síochána in 1980-82 was £191 million. This had to be increased in excess of £21 million to £213 million to combat the crime wave.
In relation to the prison service, expenditure is now at the rate of £48.3 million and the total expenditure to fight crime is almost £300 million. This is a terrible waste of money which could solve many problems including expenditure in productive areas in industry and agriculture. However, building up our resources in terms of education and community facilities cannot be tackled because we have to fight this malaise in our society.
I come from a constituency in County Wexford that might be perceived to have a very placid relationship with crime. Unfortunately, if we look at the figures for 1981 and 1982 from the same report on crime, we see that outside the Dublin metropolitan area, Wexford as a county and a Garda subdivision has the fourth highest crime rate. When one considers that the first, second and third outside the Dublin metropolitan area is Cork-Limerick, Louth and Meath, we see that outside major urban and Border areas, the reality is that County Wexford has a very serious crime rate in relation to and in comparison with other parts of the country. For 1981 the total number of indictable offences was 2,643. That was a 15.4 per cent increase on 1980. In 1982 there was a reduction of more than 6 per cent when the number of indictable offences was 2,478. Although there was substantial improvement in the detection rate between 1981 and 1982, the situation in this regard is not satisfactory. In that time the detection rate in Wexford increased to 39.8 per cent. This figure is above the national average and to that extent the Garda in Wexford are to be complimented but the reality is that the level of detection is about one-third of the crimes committed. What satisfaction can any member of the public have in reporting crimes to the Garda if there is only a one-in-three chance of a successful follow-up and prosecution?
If we look at the overall situation in relation to violence we find that the rate is of epidemic proportions. No matter how serious crimes are we tend to forget about them quickly irrespective of the media coverage given to them at the time. How many people, for instance, can recall the name of the young girl whose picture appeared in the Sunday papers after her face had been burned badly by other young people? I recall that her name was Victoria Mullarkey but I cannot recall the name of the adolescent who was knocked down during a car chase which followed a post office robbery in Malahide. The point I am trying to make is that unless there is a very serious crime, such as a murder, it goes almost unnoticed and unreported. This is because society today is conditioned to crime. There are no figures available in respect of the level of non-reported petty crime so we can only gauge that the rate in that respect is at least double, if not treble the statistics that are on public record in respect of serious crime.
The question is what the Government can do to ensure that there is a level of law and order. There was a three-pronged approach to this question in our Programme for Government. The first aspect related to the introduction of the Bill that is before us now. Then there was the recommendation that there be better community policing co-operation facilities while the third facet was the establishment of a Garda authority who would be independent. I wish to put on record my total personal opposition to any such proposal. The Minister for Justice has a vital role to play in the relationship between the Oireachtas, which represents the basis of our democracy, and the Garda in carrying out their duty. If the Minister were to remove himself from that role by way of the setting up of an independent Garda authority, he would be taking a very dangerous step and one that would reduce public confidence in the Garda. Therefore, I call on the Minister to ensure that that aspect of the Government programme is not pursued.
Perhaps there are areas in which the establishment of a police commission could be considered, something on the lines of the Royal Commission in Britain, a commission that relate to the management and the effectiveness of the police force in the context of the force being run on a businesslike basis. I would applaud any similar move here but an independent police authority would not be welcome.
Regarding the public attitude as to how the crime rate is to be dealt with, it is interesting to note the results of a poll conducted by Irish Marketing Surveys in April this year. Very startlingly, by comparison with any other poll in any other area, that poll showed that 81 per cent of all those questioned considered the administration of justice by the courts to be too lenient. Only 2 per cent indicated that they considered the system to be too harsh while 8 per cent said they did not know whether it was too harsh or too lenient. That figure of 8 per cent is remarkably low but the reaction of the 81 per cent in saying that the administration of justice is too lenient provides this House with an overwhelming mandate to proceed with legislation such as is contained in the Bill before us. If one examines the figures closely one finds that the common trend of four-fifths of those questioned being supportive of extra powers for the Garda was common among the various socio-economic groups. One might expect young people, for instance, to be more liberal or people from a rural background to be more lenient in that they do not have to experience the very high crime rate of Dublin and other cities but that was not the case. The same applies to the different socio-economic groupings. Whereas one might think that people coming from the socio-economic group from whom a large proportion of criminals are alleged to come, would consider the present situation to be adequate, there was no such indication in the survey. Those people also considered the present situation to be too lenient. Therefore, there is public support for the Bill and I am glad there is all-party support for it, too.
However, some Members have said that some of the measures in the Bill are not only draconian but that the Bill does not address the fundamental problems, the socio-economic reasons for the commission of crime—unemployment, deprivation, bad housing and so on. Most of the Members who have expressed those views happen to belong to the legal profession. I am not insensitive to these various problems. The Government as a whole must be concerned about them but it is worth repeating time and again the reality that wrong is wrong. Regardless of circumstances, there is no excuse for anyone to commit a crime against a fellow human being. There is no excuse for taking the law into one's own hands. If a Government become soft on the fundamental principle of self respect and of respecting others as one respects one self, they sow the seeds whereby society will eventually perish.
On the Bill itself, it is my opinion that for some years past the balance of the administration of justice as between the victim and the criminal has been lopsided. This Bill will redress that imbalance. On the one hand it proposes effective deterrents and detection measures in relation to the investigative powers of the Garda but that is balanced with the continued provision of measures that are in many cases embodied in the Constitution. I contend the balance within the provisions of the Bill between the fundamental rights of individuals and the improved powers to the Garda are maintained. In dealing with the various sections. I hope to illustrate that that balance is maintained, is fair and will meet the desired objectives.
The Bill had been promised by every Government since 1976. Indeed in 1967 we can recall the abortive Bill of the then Minister for Justice, Mr. Moran. Some speakers have said there should have been a White Paper issued as a prerequisite to publication of the Bill. There has been enough talk, sufficient commitments. Deputy Lenihan said that the bones of this Bill were being prepared in the Department of Justice over 15 years ago, when he was Minister for Justice. The reality is that there have been many commitments, many tangible, party election commitments since 1976. Now is the time for action and to have the Bill passed. There is no need for any such prerequisite.
Many speakers in relation to this Bill and indeed to others — one thinks immediately here of Deputy John Kelly — compared our situation with that in Great Britain and to what they are doing to deal with their problems. Some speakers have contended that we simply copied their system. Some contended that Britain had tried various aspects of extra powers in relation to bail, inferences and so on and that they have not proceeded with them. I should like to illustrate the difference in our respective situations in relation to the background to this Bill, the difference between what has happened in recent years between Britain and Ireland.
As we are aware, they have no written Constitution in Britain. They have had a regular review and updating of their criminal law which included also amendment of the judges' rules, which incorporated various police Acts, Prevention of Terrorism Acts, Ministerial Orders by the Home Office and continuous adjustments by the Royal Commission in relation to the management and effectiveness of their police. In Ireland there has been no major criminal law reform since 1951. Any adjustments effected have been solely in the area of dealing with subversive crime. Here one thinks immediately of the emergency powers provisions, the Offences Against the State Act. The reality of our situation is that the Garda have had to use these powers, they being the only ones available to them, in the rigours of their investigative work basically under a false pretence in so far as perhaps such crimes bore no relationship to subversive activity. Such provisions were the only straws the Garda could clutch at and operate under.
Compared with the British gradual tightening up and progression of their criminal law, here there have been major reversals of our criminal law in relation to constitutional Supreme Court decisions. One recalls the Justice O'Callaghan decision in relation to bail in 1966 under which bail could no longer be denied any suspect seeking bail on the basis that he would commit another crime while on bail. Effectively that decision led to a situation in which, as Deputy Lenihan said, there is a direct incentive to people to go and pay for their expenses by committing another felony while on bail.
The second area of legal judical change here relating to the Supreme Court was in 1965 when it was decided that confessions, incriminating statements and so on by a suspect and used as evidence in the court case would be considered inadmissable by the courts because they were there on unlawful detention. The only way the Garda could get the evidence was by asking a suspect voluntarily to give evidence. Therefore, between the 1965 Supreme Court decision and the other court decision of 1981 — which ruled that a suspect must be totally informed in common language of his or her rights — the reality of the situation is that the Garda have had both their hands tied behind their backs; they cannot operate. If we contrast that with the British system we can see readily that it is not fair to draw any comparisons until we get the fundamentals of our criminal law and administrative justice on a par with theirs. There is a major difference between the two systems, British and Irish. We have a lot of catching up to do in order to deal with our crime rate the way they have done but we can use their experiences usefully and constructively for our purposes. I hope this Bill will go a long way towards redressing that difference in our respective systems.
The powers of arrest and detention in section 3 and other sections have caused most controversy amongst the media and other interested groups. These provisions have been much criticised. But I maintain that the particularly tough provisions of this Bill are balanced. I might recall, first of all, that the 1978 O'Briain Report recommended that these powers of arrest and detention be implemented. But the present reality is that if a garda suspects somebody of a certain crime and has certain, shall we say, circumstantial evidence of that suspicion, the time scale within which the Garda have powers to arrest, charge and get the suspect to the court is so limited it constitutes an impossible condition imposed on them. The reality is that the current investigative faciflities of the Garda are simply laughable. But if one accepts the argument advanced that these are draconian provisions that will impinge on the basic fundamental civil liberties of the individual, I would contend that they are balanced in many ways. There is, first of all, the right to information in relation to one's rights. There is then the right to inform a third party, be that one's solicitor or whoever. There is a balance maintained also in relation to the provision with regard to tape recording and other facilities. There is then the right to have recourse to the independent complaints tribunal to which I shall refer later. There is also the right to a written notice of when questioning commences and ceases. There is also the right to rest periods without having any stop-go harassment. The powers of detention are reasonable, balanced and incorporate the basic provision of having a responsible superintendent or a chief superintendent — in relation to re-arrest — show reasonable cause and produce necessary evidence as to why a person was detained in the first place. I would maintain that all of these constitute an effective balance.
There are, then, the provisions in relation to bail and stiffer penalties, the consecutive sentencing — to abscond on bail being deemed to be a felony in itself. There are also the provisions contained in section 12 dealing with the theft of cars and those in section 13 dealing with penalties for certain firearms offences. Basically these are non-controversial provisions. Bearing in mind one of the more recent robberies in Galway when £184,000 was robbed from a post office it will be seen that the day and age in which crime at that level is perpetrated by amateurs has gone. Rather they arrive with submachine guns, invariably dressed as gardaí, and nobody will be allowed to remain in their way very long. In regard to the theft of cars, the joy-riding situation is one in which there is serious potential danger to the public, innocent bystanders, ordinary civilians, and is such that no penalty would be sufficiently tough. However the provisions of this Bill go some way towards alleviating that situation. Also the reality of the situation with regard to most robberies is that stolen cars are used which occasions delay and makes matters more difficult for the Garda in following up such cases. These provisions, therefore, are the bare essentials required.
One other provision which has been much criticised is that of the right to silence. The media, the Council for Civil Liberties, the conference of major religious superiors and other groups all have been lobbying us contending that this constitutes a fundamental change in civil liberties. I might remind such people that the provisions of sections 15, 16 and 17, relating to inferences, are along the lines recommended by the O'Briain Report in 1978. Furthermore, I would suggest they do not impinge on the rights of any individual. I reject the allegation that there is any new principle involved here. If there is a disparity between the evidence given by somebody in a Garda station and that given by that person in court surely it is only commonsense that people will draw an implication therefrom. If somebody is seen in a certain place at a certain time surely it is only commonsense that inferences will be drawn from that. For example, if somebody is seen with, say, blood stains on his shirt, or whatever—incriminating circumstantial evidence—this should be used also as evidence by implication and inference. The reality of the situation is that the present procedures in our courts already take account of that. This Bill may spell it out in certain terms but the reality is that there is no fundamental change involved here. This is a commonsense provision that prevents people getting off on a technicality. Again I would contend that the balance to preserve the fundamental rights of our accusatorial system exist, namely, the inferences provision here cannot constitute the sole cause of a conviction. That is a fundamental right of a suspect. Therefore there must be other evidence, evidence given by another person that will indict. Suspects are advised from the beginning in the Garda station of the implications of their different evidence in court and so on, so they are under no misapprehension. The third point is that they still retain the total, consistent right to silence. They may say nothing from beginning to end. Nobody can force them to speak. Therefore to contend that there is a basic infringement of the right to silence is incorrect.
Finally I would contend that the inferences that can be drawn in a court case can be drawn only on the recommendation of a judge. They cannot be drawn at the whim of a crank juror. They can be drawn only on the basis of the experienced and shrewd opinion of the judge who is doing his best to ensure that the punishment fits the crime. People have alleged that the fundamental aspect of our accusatorial system is being changed to an inquisitorial one, where the shift of onus is such that people have to answer to their accusors, is such that people are no longer innocent until proven guilty. I reject that allegation totally. There is inbuilt in the provision sufficient balance to retain the rights of a suspect which will overcome the reality of so many people getting off on technicalities. People cannot draw logical conclusions from circumstantial evidence given to the courts. It is a commonsense change only. The reality is that many people are getting off on technicalities because people cannot draw logical conclusions from circumstantial evidence given to the court. That is only a commonsense change.
There are other basic provisions in the Bill dealing with trial procedures that are non-controversial—the ten days' notice for an alibi is only compatible with the same constraints that are on the Garda in relation to the book of evidence. The majority verdicts of juries is a commonsense provision, and I have not seen anybody oppose it; and the abolition of the unsworn statements is also non-con-tentious. These measures are up-dating criminal justice law.
Even if it was draconian or was an avenue for the Garda to abuse their powers and pursue a rigorous course of injustice, as some Deputies mentioned, the reality is that the fundamental provision and commitment to retaining all sections of this Bill by ministerial order on the basis of agreement by the independent complaints tribunal—could not be said to lead to a shift in onus that denies people their fundamental constitutional rights. This raises a question mark over the ulterior motives of those who are casting such a slur on this Bill.
Our society is protected and defended by the Garda. Before I was elected to this House I always worked on the principle that I would never ask anybody to do what I would not do myself, but the reality is that we ask the gardaí to do what many members of the community, including Members of this House, would not do. The gardaí are the front line of our defence. They are unarmed, unprotected and constrained by law as to what they can and cannot do. It would be remiss of me not to pay a public tribute to the Garda for the work they have done. We have a lot to be thankful for. I would like to put on record my appreciation of the ability and commitment of Mr. Derek Nally, who is about to retire as general secretary of the AGSI. He has tried to ensure that the provisions of this Bill will be enforced. He has done terrific work and is to be commended. I will refer briefly to the statement on this Bill issued by the AGSI, although I will not go into the list of amendments they propose in detail because time does not permit, but on Committee Stage these matters can be considered.
In relation to the Independent Complaints Tribunal there should be the fullest possible consultation, deliberation and agreement with the AGSI and other Garda representative bodies to ensure that the time table within which this will operate will not put this House in a position where, if legislation is not required, we will not have a chance to comment on it. I hope the Minister will make a full statement on the matter at the earliest possible opportunity.
The AGSI make the point that the tape recording of interviews should be done on the basis of full consultation. They point out also to omissions in the Bill. As these are the people on the ground dealing with these crimes, their views must be respected. They have said that there are no general provisions in this Bill for hot pursuit searches. They are tied up in red tape. We cannot have a pilot scheme for the hot pursuit of a murderer but in certain areas we will have to trust the Garda and allow search of premises without warrant in cases of murder where the Garda have reasonable grounds to suspect that a person or material evidence is in such premises.
The carrying of knives, flick knives and similar articles with intent to commit a felony should be described as offensive weapons. People who carry such weapons would have nothing but malicious intent and it would be a good thing if it was made clear to these people that carrying these weapons, even to threaten people, is wrong because there is a certain inevitability about it and sooner or later these weapons will be used. We should concur with the AGSI on this matter. Another point they raise relates to the judges' rules. It is unclear as to what power the Minister for Justice has in relation to the amendment of the judges' rules but, where appropriate, discussions should take place with the appropriate representative bodies of the Judiciary to ensure that whatever rules need to be amended to enable Garda to get fair play, should be amended.
I have made my substantive comments on the Bill and would like to mention some specific proposals of my own to combat crime. In our Programme for Government there is a commitment to enforce the proposals published earlier this year by the AGSI for community policing. Coupled with this is the question of night watch committees. We have seen the involvement of vigilante groups especially in urban areas and people are almost taking the law into their own hands. This must be rejected and it can only undermine the work of the Garda. However, the suggestions in relation to a community watch are positive, helpful and constructive and should be pursued by way of some sort of public forum which should be open to everyone in the country where people can put forward their proposals in conjunction with the Garda, where they will be listened to at local and national levels and whereby a policy will be implemented to build up a relationship between local communities and the Garda. The Garda cannot be everywhere and because of the strain on their purse and resources proper watch facilities should be provided.
The second proposal which should be implemented outside this Bill to deal with the crime rate is the professional management of the Garda and their whole efficiency. We have the Conroy Commission proposals of 1970 and the Ryan report. These reports make many recommendations in relation to recruitment, training, management, efficiency changes and so on. The provisions of these reports should be implemented. A police commission should be set up on an on-going basis to look at inefficiencies in the Garda. If I go into a Garda station I may see a garda typing with one finger, as I would myself if I had to type. What a waste of Garda resources that is. We have CAs, COs, clerk typists and so on who should be decentralised from other State Departments, where they are possibly underutilised, and put into Garda stations and used effectively so that the management and effectiveness of the Garda, given their existing resources, can be improved.
In relation to the crackdown on crime, there is a need to look at the whole area of parental responsibility. Over the last 17 years we have seen a threefold increase in juvenile crime. I define juvenile crimes as those committed by offenders under 17 years of age. In 1981 convictions for juvenile crime amounted to approximately 20,000. In our constituencies we see that crimes such as smashing of telephone kiosks are taken for granted. In such cases the continental method of making the parents of juvenile criminals responsible for paying for damage done by their children should be considered. We have provision for malicious damages and the reality is that the State picks up the tab for these offenders. There is here a great argument for law reform and placing a proportion of the responsibility on the parents who would be more effective in dealing with their youngsters, straightening them out and ensuring that they do not repeat the crime than would any number of outsiders such as gardaí or administrators.
Another area which is not dealt with in this Bill — I am not saying it should be but it needs to be dealt with — is white-collar crime. The growth of fraudulent financial criminal activity is alarming. The Companies Act, 1963, and the Copyright Act, 1963, need to be amended because the penalties they provide are simply ridiculous. The House is probably aware that, for instance, under the Copyright Act the pirating of tapes — videotapes, films and so on — brings in vast profits. What is the penalty for conviction under this Act? It is a fine from a minimum of £5 to a draconian maximum of £100. An amendment should be introduced immediately in respect of both of these Acts to multiply all the fine amounts by five or ten to deal with this level of white-collar crime, which is hard to detect and by the time it is detected in the books the people responsible have long since absconded with their money to some sunny part of the world. This must be dealt with expeditiously.
There is enormous potential for dealing with crime in the area of private security firms. Given the real constraints on public expenditure at present we must look at the way armed robberies have developed. They started off with jewellers and about two years ago every newspaper you picked up had news of some jeweller being robbed. The Garda and private security firms tightened up on security for jewellers and the robbers moved to the banks. Then the banks tightened up, they employed security firms with their vans and closed circuit television and the criminals then moved to the post offices. It might be no harm if someone in the Garda did a little market research on where these criminals will go next. That may sound a little like turning the argument on its head, but professional criminal activity will find another loophole. With the limited Department of Justice and Garda resources there is a strong argument for using Templemore Training Unit to train private security firm employees and to use the private security firms on the basis of an overlap, so that where malicious damages claims are made against the public the insurance companies, the security firms and the Garda could have discussions at national level to come up with some system whereby the Garda and security firms would do routine protection. There should be the fullest co-operation and business interests should negotiate their security needs in conjunction with private security firms and the Garda.
I turn now to the prison situation. The Minister for Justice said earlier this year that 1,200 people would be released from prison before the end of their sentences would be reached. I understand that the numbers in our prisons at present are approximately 1,500 and that we have the third lowest detention rate in prisons in Europe. We have passing through our prisons about 7,000 per year aged between 15 and 29 years most of whom are serving sentences of less than one year. We have 11 prisons. Mountjoy Jail has a capacity for 430 persons and at present is housing 475. There are alarming stories of drug trafficking in St. Patrick's Institution and Mountjoy. There are 1,500 prison officers. There is something radically wrong with the prison service. All the public information to date suggests that we cannot hold convicted criminals long enough, if at all. We have not enough jails. We have too many prison officers. We have approximately 1,500 and some times fewer—prisoners and we have 1,500 prison officers. That is a one to one ratio. I cannot understand that. Some of these prisoners are only just passing through. I am not reflecting on the present dispute. I am just saying there needs to be some form, whether through the media or elsewhere, of major investigation into our incarceration needs in terms of prison security. There needs to be a major public report as to why the ratio of prison officers to prisoners is so low and why we cannot detain prisoners. We have the lowest detention rate in Europe. We have dangerous criminals being let out because we do not have enough prisons to hold them. We are spending approximately £50 million. What is happening? There needs to be a major restructuring and enlargement of prison facilities. We need to have discipline all along the line through the Army, the Garda and the prison officers. We need an interaction between these three vital arms of national security. We need proper training and management, plus a programme of development, in our prisons. All the provisions in existing legislation, all the provisions in this Bill, will be useless unless we have the back-up facilities. The statistics I have studied do not add up. They portray an alarming story of mismanagement, bad policy decisions and an urgent need for action. I hope that sooner rather than later this action will take place.
In regard to the Garda, it was announced about a year ago there would be a national rural communication security system. I understand this works on a radio telephone link with a rural Garda station interconnected with 18 other stations. There is two-way communication. In tourist resorts in the summer the problem of crime is many times worse than it is in the winter and these proposed facilities should be put into operation then to ensure communication between the public and the Garda and to ensure there is a better utilisation of the personnel on the ground. To my mind this is a cheap way and the best way of getting an effective service on the ground. There should be no delay in implementing this system and I trust the Minister will comment on this when he comes to reply.
There is a report that there are strict overtime limits on the Garda Technical Bureau. After five o'clock in the evening and over weekends there are severe limits imposed. Given the constraints on the Garda outlined, I would ask the Minister to deal with this allegation because it highlights to me an extremely dangerous situation. Would it be possible to work a rostering system to ensure the availability of the full technical expertise requisite to deal with prfessional criminals after five o'clock in the evening and over weekends?
There needs to be a change of attitude towards the Garda. I am appalled at the reaction of quite a number of people who, if they hear of a minor impropriety, are so willing to impute something quite major against the Garda. One hears a story of a certain level of impropriety taking place in a barracks and then one hears someone like Deputy Andrews yesterday reading out a letter from a constituent who was picked up by a Garda car and beaten up. Too many of us have this very strange willingness to believe these allegations. I wonder why. I am not saying there is not a small minority who may from time to time abuse their position, but I maintain that the vast majority are reasonable, responsible, law respecting individuals doing a good job.
But attitudes seem to have changed and, as I say, too many people are willing to believe any and every allegation. Possibly it may arise from the fact that student demonstrators of the 1960s are now leader writers in newspapers or perhaps it is some sort of disillusionment of the middle classes or whatever; but there does need to be a public relations job done on the Garda to allay what are, in my opinion, falsities in relation to their operations. One of the practical ways of doing this, as well as a public relations exercise would be for the gardaí on the ground to use their discretion. One often hears stories of someone who is stopped by gardaí flashing a light—I was actually stopped myself one night recently—and the gardaí looking for bicycle lights, indicators working properly, sidelights and all the rest of it. They ask why one is not wearing a seat belt and so on. They are dealing with ordinary people and, while these things are important in their own way, I believe there could be a greater discretion exercised. The goodwill of the public is dependent on the exercise of discretion. The full resources of the Garda should be used against serious criminals and not directed towards ordinary people. I know they use their discretion, but all their resources should really be directed against the criminal.
It is important, I think, that gardaí should reside in areas of social deprivation where they would be part of the community instead of living in suburbia in nice, cushy middle class areas. The result is they do not understand the problems in deprived areas and they may have a biased attitude. There should be a positive policy and houses should be provided for them in certain areas to enable them to familiarise themselves with conditions as they exist. Again, I believe it would pay a dividend if gardaí invited the media to travel with them on their day's work. That would improve communications and help in bettering relations generally between the public and the Garda.
I am aware of the arguments both for and against this Bill. It has been alleged by the Irish Council for Civil Liberties that the administration of justice will in future be removed from the courts to the police station. I regret that argument on the basis of the arguments I have mentioned and on the reality of the situation in that there will be this independent tribunal. We have had no criminal law reform of a major character since 1951. Our criminal law in that period dealt only with subversives. Review is long overdue. With the erosion of power as a result of Supreme Court decisions our only powers are those dealing with subversives. Here today we are updating the criminal aspect in toto. This is timely and proper. The Garda at the moment have both hands tied behind their backs. They are dependent upon voluntary statements, on people offering to come into the station and saying: “Yes, I did it.” They have no other way of getting the evidence. Again, there is the time-scale limitation. They have to get the submission together — the arrest, the charge and so on — straightaway. The provisions in this Bill will result in giving a balanced view to the public and will ensure that the system is fair and we can crack down on crime.
Only last week in Massachussets there was a debate as to when a police officer should fire his gun. The conclusion was drawn that for certain felonies the policy should be to shoot first and ask questions afterwards, but the consensus of opinion was that he should shoot the second time he got the impulse. If this House is bypassed by the godfathers of crime, if people see fit to take the law into their own hands and the ordinary, decent, law-abiding citizen's protection is disregarded, in years to come we will have no choice. If people can arrive in Eyre Square, in Galway armed with submachine guns and revolvers, the Garda will be armed likewise. It is unthinkable now that our Garda force would be armed, or that special task forces would become commonplace. However, unless responsible, remedial measures such as in this Bill are taken, that will be the result. On the basis of prevention rather than treatment, i commend this Bill to the house and assure the Government of my support.
I welcome the opportunity of speaking on this legislation, the most important to come before the House for a very long time. The issues are very complicated and wide-ranging. When this Bill is finally passed it will be seen by the public, the Garda force and all concerned as the attempt of this House to deal with a very difficult problem in our society.
In the period from 1972 to 1981, crime increased by 127 per cent. Rapes alone increased by 96 per cent and that includes only the reported cases. It is widely believed that the majority of cases of rape are not reported because of what the woman would be subjected to in bringing the case to court. The crime detection rate in 1972 was 43 per cent; today it is 33 per cent. In 1981 the detection rate for murder was 100 per cent; today it is 75 per cent.
I am very conscious of my responsibility as a Member of this House to ensure that all aspects of this Bill are looked at. Some will say that we are not going far enough and that we are too conservative. We must examine every section and sub-section, so that in the final analysis the legislation will be in the best interests of the country.
There are many groups representing the underprivileged in our society. The cause of the recent growth in crime and conflict are deep-rooted and longer-term solutions are needed and must be tackled in a more resourceful way than at present. We must realise that we have now a very serious problem on our hands. Contributory factors such as unemployment, broken homes, drugs and excessive use of alcohol are used as reasons for committing crime. I do not accept those excuses. The majority of law-abiding citizens who go about their business in an orderly way are entitled to the protection of the State. It is our obligation to ensure that they get that protection. Unfortunately, at present that is not so. People believe that just because they are unemployed or because they have problems at home, they can behave as they like. I would prefer not to have to be speaking on this legislation, but this is the reality. Unless we are seen to do something very quickly, we will not be able to walk the streets in safety.
The public look to the politicians as being entrusted with the keeping of law and order. If we do not face the realities of the situation and bow to the force of the pressure groups who are continually pointing out the disadvantaged in our community, we will have failed in our duty. We are all concerned in this House to make this a better place for all to live in. Up to now the Garda force have been totally frustrated in their dealings with criminals. The criminal has been seen to be at a big advantage because of the bail system, the courts system and some decisions of the courts. The public think all these are in favour of the law breaker, which must be corrected. This Criminal Justice Bill will come in for much criticism but it is necessary as our present laws are totally inadequate for dealing with present problems. Some people believe that they are a law unto themselves and have no respect for their homes, families, and communities. They beat up old people, attack young people, steal and vandalise without any sense of remorse or responsibility for the damage they do to society. We cannot allow that to continue.
Some members of the public are reluctant to co-operate with the Garda in helping to prevent crime and this very important area must be given a lot of attention by the Minister. Members of the Garda force are at present performing duties for which they certainly were not intended. They obtain statistics for the Statistics Office; they visit farmyards to count the number of animals; they help to carry out the population census and also many duties for the Department of Social Welfare. They do the work of traffic and litter wardens. To see a Garda putting a ticket on a car does not help towards good relations between the Garda force and the community. We must look at the role of the Garda in the community.
There is a complete breakdown in communication. I worked with a member of the Garda Síochána in Cork who became a member of the local community association and then an officer of it. During that time his contact with the young of the district was of a great advantage to him and them, bringing about a good relationship between them. They knew each other by first name and I have no hesitation in saying that that was a great help to that district. For far too long one has regarded the Garda as people to be feared when one is passing by car or on foot, in case they ask questions. Co-operation between the public and the Garda force works both ways and the role of the Garda in the community is very important. He is dealing with problems the causes of which are often outside his control, so he must have every assistance in carrying out his job in the way that he wants to.
Debate adjourned.
Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.