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Dáil Éireann debate -
Wednesday, 6 Jun 1984

Vol. 351 No. 3

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

I should explain for the benefit of the House that amendments Nos. 13, 14 and 27 were discussed together. Amendment No. 27 has, I understand, been agreed. That involved the deletion of the old section 8 and the insertion of a new section 8, by agreement, and that ends the discussion on amendment No. 27 and on section 8.

On a point of order, are you saying that because the amendment was discussed earlier with the other amendments it is not permitted to discuss the section since the amendment happened to be a whole section?

If that had been explained earlier Deputies would have taken the opportunity to go into it. Most people have had the opportunity to discuss it adequately.

NEW SECTION.

I move amendment No. 27a:

In page 7, before section 9, to insert the following new section:—

"9.—Notwithstanding anything in section 1, sections 3 to 8 shall not come into operation on a day earlier than a day on which a Garda Síochána Complaints Commission is established."

This amendment was put down to indicate the importance of a Garda Síochána Complaints Commission. The Minister introduced two explanatory memoranda in relation to this Bill. The supplementary memorandum stated:

The Criminal Justice Bill is being issued with an explanatory memorandum which, as is normal, is confined to a factual explanation of the provisions of the Bill.

To supplement the factual material in the explanatory memorandum, the Minister for Justice wishes to state, for the information of Deputies and Senators, that the Government has decided, on his recommendation, that those provisions of the Bill giving increased powers to the Garda Síochána and which will come into operation only when a Ministerial order to that effect is made, will not be brought into force until a complaints procedure involving an assessment by an independent person or tribunal has been established.

At the very outset the Minister gave an undertaking on behalf of the Government that an independent Garda complaints procedure would be established. Our objection at that time was that we felt that such independent complaints procedure should have been included with the Bill in the first instance and that the provision of a supplementary explanatory memorandum indicated that it was a last minute addition to the Bill, that its details had not been worked out and, consequently, that the Minister had no option but to give an undertaking that a complaints procedure would be introduced in conjunction with the Bill and that certain sections would not come into operation until that procedure was implemented.

On a number of occasions since we have suggested that such a complaints procedure should be provided in the interim period so that it could be assessed in conjunction with the Bill. What we originally circulated on the Order Paper of 10 April 1984 was the establishment of a Garda Síochána Complaints Commission. It is our view that a commission should be established, that it must be an independent, statutory commission. It is our view also that such a commission should be appointed by the Government, that its chairman should be appointed directly by the Government, that its members should be appointed on the nomination of the Minister for Finance and appointed by the Government also. Its chairman should be a barrister or solicitor of not less than ten years standing, that its membership should include representatives of vocational and community interests and a representative of the medical profession.

In contending that the detention powers we have discussed here should not come into operation until such a complaints procedure is established we are echoing the views expressed originally by the O Briain Committee in their recommendation No. 59 which read:

The investigation of complaints by members of the public against the Garda Síochána should be brought into line with more enlightened practice in Western Europe. A Complaints Tribunal with a strong independent element should be set up. We do not feel called upon to spell out how its membership should be composed, although the desirability of having an expert penologist and an experienced criminal lawyer suggests itself. Whatever its composition, the membership should be clearly so impartial and above any suggestion of bias that it would earn the respect and co-operation of both Garda Síochána and public. We cannot emphasise too strongly our belief that any such Tribunal must have the wholehearted support of the Gardaí if it is to function effectively, and no effort should be spared to secure the goodwill of the several Representative Bodies. Whatever procedure is adopted for dealing with complaints, no suggestion of double jeopardy should arise. We so recommend.

They recommended the establishment of a complaints tribunal and that the investigation of complaints by members of the public against the Garda Síochána should be brought into line with more enlightened practice in Western Europe. There are some divided views about this. There has been some concern expressed by the Garda as to whether this would be a good or bad thing.

Limerick East): On a point of order, is discussion of a complaints procedure relevant to this amendment? I know we discussed it previously but the spirit of the amendment is not that——

The effect of the amendment is to delay the coming into operation of certain sections until a complaints commission has been established. I suppose, while it might not be in order to go into the complaints commission in great depth, the Chair thinks it is permissible to refer to it in making a case for delaying the coming into operation of the sections until its establishment. I know the Deputy will not make a meal of it.

I have not made a meal of anything yet and I have been here a long time. In the first instance I had an amendment down suggesting the establishment of a complaints tribunal and I was told that that had been ruled out of order. I then put down this amendment which related to the coming into operation of the sections in question. I have no desire to go into any great detail but it is relevant to this part of the Bill. While there may have been reservations earlier about the kind of complaints procedure which I foresee — and about which I am speaking here — I believe that amongst the Garda themselves at present there is an increasing interest being shown in having established an independent, statutory complaints body. From the beginning the Garda themselves welcomed the establishment of an independent complaints procedure. Indeed the Association of Garda Sergeants and Inspectors recommended strongly that there be established an independent complaints procedure and they have set out their views on how such might operate.

In the Garda News of April 1984 the Garda Representative Body gave their views on what should be an independent complaints procedure. They concluded that there should be one established, that it should be fair and impartial, provide for thorough investigation, be designed to ensure that there is no undue delay in processing claims and allow for the separation of matters of a serious nature from those of a minor nature and various other things. They spelled out clearly what they required and saw as being necessary. Certainly they agreed that the establishment of a complaints procedure was necessary. I might quote from that Garda Review, volume 12, No. 4, at page 29 under the heading “Extracts from the Address of Michael F. Murray,”..... the member of the National Executive on the Criminal Justice Bill when he said:

.... it is clear that some independent element is going to be introduced into the Complaints Procedures .... The basic question we must ask ourselves here is do we agree with the introduction of an independent element? There are strongly opposing views on this. Some feel that it might be unduly restrictive and singles out the police profession for special attention while others, such as lawyers, doctors and so on, can continue to conduct their own disciplinary business in private.

Mr. Murray continued:

If we honestly and sincerly want to have contact with, and support from the community, we must stop thinking of ourselves as a brotherly band beleagured by hostile forces and start thinking of ourselves more as public servants within a specialised law enforcement organisation.

I put it to you therefore that it is in our best interests to be in favour of some form of independent element in our complaints procedures.

Mr. Murray went on to outline broadly the kinds of principles they would favour, and that they should include an independent element in the complaints procedures. Therefore, as the Garda understand increasingly what is involved, there is more and more support for the establishment of such a complaints procedure. That procedure will be beneficial to the Garda Síochána because the allegations which are so often made will be dealt with in a clearly independent manner and, consequently, many which may be vexatious will be shown up for what they are. Subsequently it would leave the Garda in a stronger position.

The Minister in March last when introducing amendments to the Bill set a five-year time limit on sections 3 to 8 which deal with detention and related matters. Indeed, in the House he said he would consider whether this should be a four or five-year period. The Minister has said that his discussions about such a tribunal are at an advanced stage. We are at one in that respect. I should like to refer to the fact that the Police and Criminal Evidence Bill, 1983 in England included a police complaints and discipline procedure. It proposes to set up a police authority which will deal with their supervision of investigation of allegations against police officers and related disciplinary charges against such officers. There is a precedent and a very good reason for such a procedure.

We have suggested the setting up of a Garda Síochána Complaints Commission, an independent body for supervising and investigating complaints against the Garda Síochána and related criminal or disciplinary charges. We dealt with its membership, the establishment date, the appointment of the commission and the importance of involving the community and vocational groups in this area. We also dealt with the importance of involving a representative of the medical profession. We have also set out a reporting system, dealt with employees and the question of finance and, in particular, the processing of complaints, a matter of considerable interest in relation to the discussions that are taking place. The system we have suggested for processing complaints is outlined in the amendments that were circulated on 10 April last. We have included some of the provisions people are looking for, such as that there should be two levels of complaint, that some complaints should be dealt with on a more informal basis and those of a more serious nature be delat with on a formal basis. The Garda have been looking for that.

The Minister has told us repeatedly in the House that these sections will not come into operation until he establishes an independent statutory complaints procedure. I hope it will not be very long before that procedure is introduced. We are concerned that so much time has passed without the complaints procedure being set down. As a consequence the implementation of the provisions of the Bill will be put back. In this regard the Minister has told the House that the provisions will not be implemented until he has established a complaints procedure. Our amendment gives the Minister an opportunity to deal with this matter. The Minister mentioned a complaints procedure during the debate on the Bill but he has not tabled an amendment to include such a provision. I hope he will look favourably on our amendment.

(Limerick East): When I took office as Minister for Justice work had been proceeding on the main provisions of a criminal justice Bill for quite a long time. Many of the proposals we have been discussing are ones which at least two of my predecessors, and possibly three, had been considering. I would like to have come into the House with a scheme for a complaints procedure, either an administrative or a legislative one, at the same time as I produced the Bill but the last Government, of which Deputy Woods was a member, had not given any indication that they were going to have a complaints procedure of any type. They had not done any work on it. Obviously, there was a time lag between the production of the Bill on which some work was done and the complaints procedure on which no work had been done.

The Explanatory Memorandum circulated with the Bill outlined the main provisions of the legislation. I was advised that it was not appropriate to talk about a complaints procedure in the Explanatory Memorandum because such a procedure was not contained in the Bill. The idea or the concept, was not contained within the Long Title of the Bill. I produced a small second memo which committed the Government to doing exactly what the Deputy desires in his amendment, that sections 3 to 8 will not come into operation until a complaints procedure is in operation. I have repeated that commitment in the House on several occasions. In his amendment Deputy Woods is seeking to make the commitment the Government and I have given legally binding by an amendment to the Bill. That does not need to be made legally binding. I have given my word to the House that this will happen. It will be a legislative scheme. It has gone through Government and is being drafted at present. I will bring it before the House as soon as it is ready. I will not accept the Deputy's amendment because I see it as the Deputy casting doubts on the commitment I have given to the House. It is not necessary to tie me legally in the Bill to fulfil the commitment I have given to the House and which the Government gave when the Bill was circulated.

The point raised by Deputy Woods, and dealt with by the Minister, is probably one of the most important aspects of the legislation. I do not believe that the training of the Garda makes them aware of the damaging effect even one act of discourtesy can have on the public. We need to ensure that there is a strong awareness within the force of the need to harness community goodwill and get people on the side of the Garda. To that extent where a garda does something which is not in keeping with the spirit and vocation of the Garda Síochána an independent complaints tribunal would be very desirable. A garda may commit small offences, if they can be called offences, perhaps of the industrial employment type. Every offence should not be a federal case; every offence should not be a matter for the independent complaints tribunal. In introducing an independent complaints tribunal we should specify what and how, complaints can be referred to and dealt with by this tribunal. We must get the balance right between the rights of the Garda and their responsibilities to the community.

Matters as they stand are certainly not in the interests of the community. If a person makes a complaint against a garda at the moment it is investigated, or supposed to be investigated, by an inspector from another division. But sometimes in the early hours of the morning people will contact one with a complaint and when it is pursued by a garda in uniform calling on the person, even though that garda is from another division and may be very courteous and helpful, people can become frightened. Whether we or the Garda themselves like it or not, people who do not normally come in contact with the Garda have a fear of the whole questioning procedure. People signing a statement, which they are asked to do, can find themselves turning up in the District Court for something which perhaps could have been dealt with quite easily without having to go to court. There fore, I want to see an independent complaints tribunal set up, but I want to see the terms of reference of that tribunal before the House preferably before this Bill passes into legislation. The Minister tells us that this matter has been before the Cabinet and is being drafted at the moment. Since we are on only section 9 of the Bill, I hope that it will be possible to get that legislation in here before we pass the Bill.

One thing the Minister could consider which would help to allay the fears of many people would be examination of the training procedures to ensure that gardaí are community orientated in the first instance, that they are trained and psychologically facilitated to assist the community. Many gardaí giving evidence before the various committees say that in many cases something happens when a person puts on a uniform. In considering a complaints tribunal we must also consider the whole question of training and psychological testing for people entering the Garda Síochána. I hope the Minister will bring forward his proposals for this complaints tribunal before the Bill passes and that at the same time he will take up the suggestion, which I made in the House and which the Association of Garda Sergeants and Inspectors are making, about a commission of inquiry into the question of deployment, training and management of the Garda Síochána. I hope to have an opportunity to say more about that later. It is vital that this area be examined. There is no point in looking at this proposal piecemeal. The legislation is there. We could do a very good day's work by going the whole hog with this and agreeing to the establishment of a commission of inquiry into the management and deployment of the Garda Síochána.

I understand why Deputy Woods put down this amendment. We have had exhaustive discussions in trying to have a complaints procedure made part of the body of the Bill and we did not really succeed in convincing the Minister that he should change his original thinking in that regard and that the provision in the Bill giving increased powers to the Garda Síochána would come into operation only when a ministerial order to that effect was made. However, he guaranteed that it would not be brought into force before a complaints procedure involving an assessment by an independent person or tribunal has been established. He went through the argument and explained the Police and Criminal Evidence Bill. I do not think that we can persuade him at this stage but I think he has committed himself irrevocably to bringing in this procedure prior to the operation of these sections. I do not believe that he will do an about face and I believe that this will be brought in in good time for us to discuss it.

The Minister understands our concern about the need for an independent complaints tribunal. We must take into consideration that if the independent complaints tribunal is not introduced here for debate before the Criminal Justice Bill is passed and becomes law, then we could find ourselves as Members of the House under pressure because the Bill would have been passed before the complaints tribunal had been debated and agreed on and we might not have the same freedom and strength to uphold the kind of independent complaints tribunal that we envisage as necessary. As Deputy Mitchell said, the length of time taken in debating this Bill should allow time within the Department for the drafting of the provisions for an independent complaints tribunal. It would be difficult for us to accept the Bill in isolation from this.

I am a novice in the House and lack knowledge of the procedure regarding Bills coming in here. I would like to ask the Minister if after we vote each section of the Bill and on Report Stage, is it then completed and signed? Is that the moment at which the Bill becomes law? If this Bill is voted on in this House will it then be de facto law? If a garda or gardaí attempted to use some of the extra powers before the ministerial order was granted, would they be in breach of the law? I would like an answer to that. I am anxious that the question of the complaints tribunal be in if possible before Report Stage and certainly before the Bill is signed.

When the Minister brought in the Bill initially he argued very strongly the need for an independent commission or tribunal for complaints procedures independent of this Bill. I agree with him that, even if this Bill had never seen the light of day in this House, there would still be a need for an independent complaints procedure for the Garda. The Bill, having come in here and having been debated in the House, underlines the urgency of an independent complaints procedure.

The Minister may feel we are casting doubts on his word. That is not the intention, but I should like to see in the Bill a section providing that it will not become law until the complaints procedure has been passed by the House. Fears have been expressed by nearly all Deputies that the powers in the Bill will be open to abuse, following experience of abuses of the 1976 emergency legislation which resulted in the Ó Briain committee and their recommendations. There is genuine concern that an independent procedure should be established. We have examples of abuses and not everybody is satisfied about present procedures, that they are entirely free of bias. No matter how unbiased the procedures may be they are organised and carried out by the Garda and therefore there is always a nagging doubt that the procedures are open to abuse. Therefore I urge the Minister to accept an amendment, or to insert one himself, which would make it necessary to have the complaints procedure established in law before the passage of this Bill.

Another point has been raised in regard to this amendment. It refers to a Garda Síochána complaints commission but does not say that it should be an independent commission. An earlier amendment of Deputy Woods, ruled out of order, gave some detail. The Minister spoke about a complaints tribunal or commission and said it would have a strong independent element. That would seem to indicate that it will not be entirely independent and I should like the Minister to elaborate, to tell us to what degree the complaints procedure will not be independent.

(Limerick East): I am happy that Deputies have come round to my point of view that a complaints procedure with a strong independent element is necessary. I spoke about this in my first months in Government and I have been speaking about it since. I have got the Garda Commissioner to agree with me and the two Garda associations have indicated agreement in their publications.

The complaints procedure will be a legislative measure, as extensive a piece of legislation, almost, as the Bill before us. Already at the draft stage we have 30 sections. That may have to be cut down, but it will be a major piece of legislation and will stand on its own rights. I continue to advocate it and I am surprised at Deputies bringing in a case tonight on the basis that they were trying to convince a reluctant Minister. I have tried to convince many members of the public about the need for such legislation, and I may say that the Opposition when in Government did not do any work on it whatsoever.

I do not wish to discuss the merits of the complaints procedure legislation. Deputies will have plenty of time to discuss its merits when it comes before us. I have been giving nuggets of information on every occasion this has been mentioned on how far that legislation has advanced. Deputies who have been contributing to the debate see themselves as honest and upright with strong social consciences. I accept that and I ask them to accept that if the Minister and the Government give their word it means something.

I do not want an amendment legally to commit me to something which I have already promised to do. The Bill providing for the complaints procedure will have to go through all its Stages here, including Report and Fifth Stages, and through all Stages in the Seanad, and I am sure Senators will be anxious to match paces with the Dáil. It will be a long hot summer for the Minister for Justice. That Bill will go through, I hope, after a good discussion before going to the President to be signed. Section 1 of this Bill provides:

—(1) This Act shall come into operation on such day or days as may be fixed thereof by order or orders of the Minister for Justice either generally or with reference to any particular purpose or provision and different days may be so fixed for different purposes and different provisions of this Act.

While in theory it will become law, part of the corpus of our criminal code, when passed by both Houses and signed by the President, it cannot until the Minister signs orders to bring it into operation. He can sign one order or he can sign different orders to bring particular sections into operation. In respect of sections 3 to 8, I will not sign the order until we have a satisfactory complaints procedure in operation. I should like the House to accept my bona fides on this.

The Minister, of course, is a very honourable representative for Limerick East, but we are concerned with what will be done in the Bill. The fact that we are giving new powers in the Bill has nothing to do with the Minister's honour——

(Limerick East): I do not want to cast aspersions on a potential successor.

We are giving certain powers in the Bill. The Minister referred us to section 1 and we accept his good will in that respect. We had a match between one side and the other earlier and I was disappointed when the Minister blamed the previous Government. There was an internal document in the Department of Justice which did not come for the Government's approval——

(Limerick East): The Bill?

A draft of the Bill. Let us be clear about it.

(Limerick East): The Deputy must have been missing on the day.

The heads of the Bill were being considered at that time but one might ask what would have happened if at that stage certain circumstances had not arisen. The Minister has been in office since December 1982. In October last he circulated a document which indicated his plan for a complaints commission. It is because of what he said that I had to put the amendment in this way. When I tabled the draft procedure for the setting up of the complaints procedure it was ruled out of order because the Bill did not contain anything on those lines. Such a reference appeared only in the second supplementary memorandum. At that stage in October the Minister said it had not been decided whether legislation would be necessary to establish such a procedure or whether it could be introduced at least in the first instance on an administrative basis but that in either event it was the intention of the Government that both Houses would be given the opportunity of discussing a complaints procedure before it would be brought into effect.

The Minister has said we all came around to his point of view, that was, that there should be an independent statutory body or a body with a strong independent content. We are talking about an independent body. From a very early stage in the course of these discussions this whole point has been developed. Therefore, having tabled a draft procedure containing 22 sections but which was ruled out of order, I had no alternative but to table this amendment.

Regarding a question raised by Deputy Mitchell, there should be provision within the procedure for dealing with informal complaints on one basis and with more serious complaints on a different basis.

(Limerick East): There would be no independent adjudication in what the Deputy is proposing.

We can go into that if the Minister wishes but this independent commission may assess a case or have it assessed otherwise. Both are provided for. It would depend on the nature of the case.

The Chair would prefer that the Deputy speak to amendment No. 27a.

We had a discussion earlier with the Ceann Comhairle on that. I was avoiding engaging in too much detail at that stage but now the Minister is bringing in details. Lest anyone should get the wrong impression it is important to make clear that the commission would have the right——

(Limerick East): In the interest of restraining the Deputy I am prepared to withdraw my reference to detail.

The reason for my putting down the amendment was to have the issue discussed here at this stage and to have the urgency and the need for this commission put.

In relation to the point made by Deputy De Rossa, while it is clear that the commission would be independent, I agree that in the short version that is not carried through. The full title is an independent commission for supervising and investigating complaints against the Garda Síochána and related criminal or disciplinary charges.

These are the main points I wish to make. I want to have the matter considered now. We have learned from the Minister that he is now much further advanced with the procedure. It is regrettable that we must pass these measures without having before us details of the complaints procedure. We do not know what the independent element of the commission is to be. We must rely on the Minister to carry out his promise. On that basis I am prepared to withdraw the amendment.

Amendment, by leave, withdrawn.
SECTION 9.
Question proposed: "That section 9 stand part of the Bill."

(Limerick East): The purpose of the section is to introduce consecutive sentencing for offences committed by persons on bail. In 1982, 7,880 indictable offences were committed by such persons. There is evidence of this number. It represents about 24 per cent of all detected indictable crimes. The detection rate was about one-third so we are talking of about 24 per cent of one-third of the total crime figures. For that reason it is probably an understatement and the Garda are satisfied that many more offences are committed without their being able to obtain evidence of them.

The vexed question of offences being committed by persons on bail has been discussed. The debate has ranged from depriving people of their right to bail to what I have come up with here. My advice is that to deprive people of the right to bail would be unconstitutional. I do not envisage a situation in which I would sponsor a referendum to change that provision of the Constitution which entitles people to bail. We are providing here that if somebody is found guilty of an offence which was committed while he was on bail, the sentence for that offence shall be consecutive to the first sentence or to any other sentence that may be imposed. This has brought about a situation in the District Court where it was necessary to increase total sentencing power to two years so as to allow for consecutive sentencing power of up to two years. It does not change the power of the District Court in any other way. I hope it will be effective. The problem of offences committed while on bail is a serious one. If someone charged with an offence is found guilty and sentenced and gets bail they have immunity from punishment while they are on bail. They commit crime while on bail and sentences would run concurrently if the expectation was they would receive sentences of an equal length.

Is there a maximum?

(Limerick East): It would only apply in the District Court. It is to provide the District Court with the ability to deal with it but if they are tried before any other court a five-year original sentence with an offence committed while on bail which attracted another five years would mean a sentence of ten years. The extension only applies to the District Court because they are restricted to 12 months at present.

This section is very welcome. The Minister said 7,880 offences were committed while on bail. It is one of the scandals of recent times.

What we are concerned about is how the section will work in practice. The memorandum states:

Subsection (3) makes it clear that the requirement to impose consecutive sentences in "bail" cases takes precedence over the discretionary power to impose consecutive sentences conferred on the District Court by section 5 of the Criminal Justice Act 1951.

The courts in imposing sentences on people who have committed offences while on bail have recently taken that fact into account and usually impose a stiff penalty. The sentence to be imposed rests with the court. What we are doing is introducing an extra sentence for offences committed while on bail. Apparently the courts have been taking that into consideration to some extent. I hope that what we are doing will not take away some of the court's discretionary powers.

We support the section completely. It is very necessary. The number of offences committed while on bail is a scandal. At the same time I agree with the Minister when he says we cannot interfere with a person's constitutional right. The Association of Criminal Lawyers have said that this section provides for consecutive sentences for offences committed while on bail. The principle of the section is not approved by the association. They express concern about the District Court having power to sentence up to an aggregate of two years in prison.

(Limerick East): It is only for consecutive sentences. They misunderstood that section. They were under the impression that it gave the District Court power to sentence up to two years for a once-off offence, whereas the power is only being extended in the case of consecutive sentences.

It applies to consecutive sentences.

(Limerick East): Yes but not otherwise.

They were taking it as applying generally whereas it only applies——

Is it limited to one year?

(Limerick East): Yes, they misunderstood it.

The courts could, since they would still have discretion about the sentence, bring up the total amount — two halves make one, or two six months makes 12 months. It might not be implemented as we would expect. We welcome this section. It is long overdue.

This is a section which we all welcome. On section after section of the Bill we have been questioning the Minister, giving him a grilling and generally putting him through a tough time primarily because we are concerned, as the Minister is, about the problem which the community are facing. We are anxious to get it right.

We must remember that the reason the legislation is before the House is that Deputies have been put under severe pressure in their constituencies to do something about the almighty spate of crime which the old, infirm and those not able to defend themselves in the community have suffered from mostly at the hands of people who are on bail. In the Crumlin area if a person is detained for snatching a handbag he might just as well go out the following day, grab an old lady, beat her up to within an inch of her life or give her a bad bruising and scaring, steal her handbag and someone else's the day after. He could go before the court and ask for all these to be taken into account. The same thing happens regularly in Dublin areas. CrimInals steal cars. Not only do they drive them recklessly but they drive them up to the Garda seeking a chase and go speeding around housing estates sometimes killing and injuring people. They do that recklessly knowing that they are on bail and that when they go before the court they can ask for these things to be taken into account.

From speaking to people in the Garda Síochána, I suspect that the amount of crime committed while on bail is higher than the Minister suggests. The Minister's figure is only a portion of the total. If a person is on bail and is found guilty of an offence, he has been given sufficient warning. Persons who are caught and brought before the courts should have the attitude that they should try to mend their ways but the opposite is the case as things stand. They go out and deliberately get caught because they know that these things will be taken into account.

The section is very necessary. I support it entirely and think the Minister has got it right.

The question of offences committed while on bail is a thorny one. It has been dealt with in the newspapers and so on. The Minister gave a figure of 7,880. Were they offences or convictions for offences committed while on bail? Can the Minister give the source for that information?

(Limerick East): It is Garda information. It is the number on which evidence was available. The figure is understated.

So far as I am aware, there is very little hard evidence in terms of the number of convictions of persons for crimes committed while on bail. There are virtually no statistics kept in relation to that. For that reason, it is difficult to quantify what exactly we are dealing with. There is a public perception that virtually everybody on bail is committing offences. As far as I am aware, there are no statistics available to show to what extent that is true. The Garda Review of 1981 published some figures which they said were from confidential Garda files. These figures related to offences about which they believe they had information but they did not relate to the number of convictions.

Deputy Mitchell spoke about a person on bail who is caught committing another crime and said one would expect him to mend his ways. The fact is that a person on bail is a person who has been charged with an offence but has not yet been found guilty. Our law presumes a person innocent until the court finds him guilty.

The person concerned knows if he is innocent or guilty.

It is not for the Deputy or for me to decide if a person is guilty or innocent; it is for the court to decide on the basis of the evidence presented.

If a person is guilty he might be expected to mend his ways.

That is a very moralistic way of approaching law. We must accept that our law does not deal with morality in those terms; it deals with definitions of offences and legalistic ways of interpreting them, and whether the balance of evidence is in favour or against the accused. There is no other way of dealing with offences and with people suspected of having committed offences in our society.

I would like to see more specific information made available on precisely what we are dealing with when we are talking about crimes committed while a person is on bail. What kind of crimes are committed? Is murder being committed by these people while on bail? Is rape being committed by people who are on bail? Is burglary being committed by these people? I would like a breakdown of some kind so we will know what we are dealing with.

I am pleased that the Minister has not attempted to restrict the availability of bail to persons who are accused of crimes. Our Constitution and our courts have made it very clear that a person is entitled to his liberty with certain qualifications until such time as he is proven guilty by the courts. Then the courts exact their sanctions for the offences concerned. Before I go into this further, perhaps the Minister could give more details about the offences concerned.

(Limerick East): The figures I have given were provided by the Garda. I am not sure if they were published in the 1982 crime report, and I have been attempting to get them checked. The offences most commonly repeated are larceny, burglary and in recent times drug-related offences. That is not meant to be a conclusive list, but that would cover many offences which are committed while people are out on bail.

This section provides that two life sentences cannot be ordered to run consecutively or to indeterminate sentences under section 103 of the Children Act, 1908. That refers to a situation where a juvenile convicted of murder must be detained at the pleasure of the court.

Deputy Woods mentioned the discretion of the courts. There are two elements involved here. Subsection (3) says that "subsection (1) shall apply notwithstanding anything contained in section 5 of the Criminal Justice Act, 1951." That gives District Courts a discretionary power to impose consecutive sentences, but the limitation of 12 months applies. What is happening now is that it will be made obligatory to impose consecutive sentences in the District Court, but not in the other courts. The two-year limit will apply. Discretion would need to be exercised in another sense as well. If somebody was charged with an offence which subsequently carried a five-year sentence and while out on bail committed nine other offences, each of which carried a five year sentence, theoretically he could be sentenced to 50 years, not in a District Court but in a higher court. That is an extreme example, but there is nothing in the section to prevent a judge taking this into account and looking at the cumulative effect of the sentences he is imposing so that while there would be an added element for offences committed while on bail, there would be discretion in the hands of the judge to pitch the particular time module to be added to the first sentence so that the cumulative effect did not turn out to be a ridiculous sentence which would not be in keeping with the nature of the offences.

As Deputies know from their various letters to the Minister for Justice petitioning him on various sentences, there are powers of mitigation in the hands of the Minister to adjust what could be perceived as a run of sentences which would not necessarily be appropriate to serve.

On the actual statistics, I cannot give the Deputy harder information on the number of offences, apart from what I have given. What I do not have is the source of the statistic I have given, but if I can establish it, I will communicate with the Deputy.

It is very frustrating for law-abiding citizens to hear of people on bail committing more offences. This is very difficult to explain. As the Minister has said, the courts have discretion, but this discretion is seldom used. As the law stood, it encouraged a person on bail to commit other offences, because if he was found guilty of the first offence he could have the later offences taken into account and still only get one sentence. For that reason I welcome the change in the law which means that consecutive sentences can be imposed from now on.

(Limerick East): I have tried to check the source of the information I gave the House and I am informed that the 1982 statistic of 7,880 arose from answers to parliamentary questions. The source of the information which went into compiling those replies I can get, and I will then communicate with the Deputy.

The House will be aware of a number of cases where other offences are taken into account. I have found this to be quite common, from discussions with gardaí and others. Given that this section may well increase the population in our prisons, does this mean that extra places will be available for those who commit crimes while on bail? There is no point in passing legislation such as this if accommodation is not available.

With regard to the second last point made by the Minister, are the courts compelled to give consecutive sentences, or may they give concurrent or part concurrent sentences? Is that discretion with the courts?

(Limerick East): With regard to prison space, I would hope that what we are doing here would have a deterrent effect and that people would not have to be locked up for a very long period. The problem as I see it now is that there is this period of immunity from punishment while on bail. One can have a free run, rob ten houses and it is all taken into account when the sentence is being imposed commensurate with the first charge on which one was out on bail. It may put some pressure on prison space — that is a problem which we have had for a number of years, have now and will have for a number of years to come. I have succeeded in accommodating approximately 400 extra in prisons over the last 12 months. Something between 70 and 100 places can be made available, I think, in the coming six to 12 months.

I am hoping that the Community Service Order legislation, in regard to which we are recruiting probation and welfare officers at the moment, and a seminar which is being held for District Justices — which is something the Deputy has been advocating for a long time — will reduce the pressure on the prisons also. People would then be doing community service order work rather than serving prison sentences.

On the second point raised by the Deputy, for an offence committed while on bail it would be obligatory on the court to impose a consecutive sentence. However, since most of our penalties in terms of years have a maximum of five years, there would be a discretion with the judge on the amount of that five-year maximum to be imposed for the bail offence. One can consider a person having been sentenced to five years' imprisonment who commits an offence while on bail. The judge in his wisdom would decide that the total package of offences justified seven years' imprisonment and in that case he would have the discretion to impose five years plus two, rather than five years plus five.

But would the judge have to impose a sentence for each charge?

(Limerick East): Yes, and it would have to be consecutive.

So it could be a month or six months or——

(Limerick East): The judge could adjust the sentence, certainly. Of course, in the District Court it could not exceed two years' imprisonment and that two-year period could have to be used in the District Court for one offence. The justice may go only as far as two years for the original offence plus the offence committed while on bail.

This section has been given the broadest welcome. It has been welcomed throughout the city and seen as very useful. One of the criticisms raised against the legislation as a whole is that it will not affect the minor crimes which are causing so much hardship and may be at the front line of problems facing a considerable number of people in many parts of the city. Much of such disturbance is caused by minor crimes. This section will help in changing that situation and, as the Minister has said, be a deterrent. At present a person out on bail has an incentive, a licence to commit crime while awaiting trial. It is commonly perceived that that time is used to commit further crimes and perhaps line the pockets for the time when the offenders emerge from jail. Of all the sections, this is the most welcome and is a useful and long overdue addition to our laws.

In effect, the Minister has confirmed what I said earlier, that the discretion still lies with the justice to decide on the individual sentences but these would have to apply consecutively. In view of the fact that there has apparently been a recent practice, the extent of which I do not know, of giving more severe sentences, partly because of the public outcry against crime, there is no doubt that the Judiciary will regard the spirit of this section in the way intended and the Bill consequently will result in the accumulation of a more serious sentence or penalty.

The question was raised of people who are out on bail being given bail when there are already a number of similar offences against them. One instance was put to me by a man who had suffered the loss of his brother in a car accident. One of the points which he put to me was that the conditions of bail should be changed to allow the prosecution to object to bail, should the persons have committed similar offences previously. When such offences have already been committed, should more weight be given to that at the time when bail is being considered? Can that be done now? Presumably it is purely a matter for the judge, in any event.

(Limerick East): The particular case of which the Deputy is thinking is the O'Callaghan case, page 501 of Irish Reports, 1966. This judgment was to the effect that refusal of bail in order to prevent the commission of other offences by an accused while awaiting trial was a form of preventive detention and was consequently unconstitutional. That is the very constitutional problem here.

A number of Deputies arguing in favour of this section of the Bill have said that it will act as a deterrent. The Minister has also made the point, and Deputy Flaherty, that these consecutive sentences will deter. This is similar in some ways to the debate on the section regarding detention. Opinions are being expressed about the effects of these sections without any statistical evidence being offered or any studies being brought forward which indicate that the effect being claimed will occur.

For the sake of argument, let us take the case of the young lads who are in the habit of robbing cars to go joy-riding around their home estate or some neighbouring one. We know the disastrous effects which this has had in certain instances, having resulted in deaths not only of the young people involved but also of innocent bystanders. On the face of it, the offence of robbing a car and driving it around is not so serious, but its after-effects from high speed in driving and so forth can be very serious, indeed. However, there is no reason to believe that a consecutive sentence in cases which occur while people are on bail will prevent them from acting similarly while again on bail.

Progress reported; Committee to sit again.
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