Deputy De Rossa was in possession on the section. He is not now in the House, so I am putting the question. Is section 9 agreed?
Criminal Justice Bill, 1983: Committee Stage (Resumed).
SECTION 9.
Question again proposed: "That section 9 stand part of the Bill."
The Chair might consider the position of Deputies who are preparing for the start of a long debate for the afternoon, not to be trying to support the Government in rushing through a matter of such importance——
That is a most improper remark. I asked on a number of occasions if the section was agreed. The Deputy said it was not agreed but no effort was made to speak on it. Deputy De Rossa has now come into the House and if he wishes to resume I will hear him.
I thank you for helping me out. We were discussing consecutive sentencing for offences committed by a person while on bail. I was arguing that such consecutive sentencing would not in any way act as a deterrent. The Minister introduced a number of figures to indicate that there had been more than 8,000 offences committed by people while on bail. He indicated that he would produce those figures for me but so far I have not received them.
Limerick East): I cleared the letter just before I came into the House.
I should like to have a look at those figures. However, I suggest there should be some more debate on this section because we are supposedly attempting to deal with crime particularly in the Dublin metropolitan area and we are supposed to be taking serious steps to deal with it. When the debate outside the House on offences committed while on bail started there were suggestions that bail should be restricted and that there should be a form of preventive detention for person charged while on bail. An attempt was made to argue that all such persons should be put in preventive detention, but it was shown that it is not possible under the Constitution to detain such people for preventive purposes. I should like the Minister to indicate how he thinks consecutive sentences will act as a deterrent.
(Limerick East): I have a letter on the way to Deputy De Rossa. The records relate to offences for which the Garda have obtained sufficient evidence to prefer charges, not just ones in which the Garda have suspicion. The figure I gave to Deputy De Rossa was 7,880 indictable offences committed by such persons in 1982. Information on the basis of these figures was given in reply to various Dáil questions. When we say that consecutive sentences will act as a deterrent I am working on the presumption that any sentence is there for a number of reasons, one of them being its deterrent effect. One of the reasons why we would have shorter or longer sentences would be to do with whether the length of sentence would be a deterrent or not.
The net issue in regard to offences committed while on bail at present is that because consecutive sentences are not given somebody who commits an offence while he is on bail knows when he is committing that offence that he will not be punished for it, so there is absolutely no deterrent. Indeed there is a period of de facto immunity during which somebody who is on bail can commit offences on the supposition that he will be sentenced subsequently for the charge for which he is on bail.
On the general question, any other approach to the vexed problem of offences committed on bail would involve a change in the Constitution and at the moment I am not convinced that such a change is desirable or necessary. The Deputy pointed out that the O'Callaghan case dealt with this issue categorically — page 501Irish Reports 1966 — It is to the effect that the refusal of bail in order to prevent the commission of other offences by an accused while awaiting trial is a form of preventive detention and consequently unconstitutional. I do not want to have a referendum on the question of bail which in effect would deprive people of the liberty they now enjoy. We should defend the right to bail. There is a very sweeping general right to bail now. It is given in the vast majority of cases but there is a problem that there does not seem to be any method of dealing with offenders who take the opportunity to offend while on bail because they have virtually immunity from punishment. Consecutive sentencing will help and the next section, which has been debated widely already, would extend the power of the District Court to sentence in such cases for two years rather than 12 months. That is important and the District Court need that discretion. It is only in cases of consecutive sentencing that the District Court has power to sentence for two years. At the moment the District Court has not got the power to impose an aggregate sentence of two years.
This is one of the matters on which I would be in agreement with the Minister. I have expressed grave reservations in relation to the detention sections and I will be expressing the same reservations in relation to sections 14 to 18 particularly. Section 16 has been amended outside, and that is of great help. In relation to bail generally, the criteria was set in the O'Callaghan case in 1966. The general view was that to establish the right to bail the individual accused would have to undertake he would not abscond the jurisdiction and would not interfere with witnesses. In such cases he would be entitled to bail automatically.
I have sympathy with Deputy De Rossa's point of view. We are living in difficult times but we must be liberal in our interpretation of individual rights. In the circumstances I do not think we should go overboard with punitive legislation. If this deterrent is introduced it will deter people who at the moment know that when they are out on bail they can commit crimes without any prospect of retribution. In the Bill, we are talking about the need to guard citizens. It is fair to say that when an accused is out on bail he knows that when he comes to court to be tried other offences committed while he was on bail will be taken into account and the sentence will be made to run concurrently. Individual criminals inevitably are recidivists anyway. We are dealing with the worst elements in our society and those people work the system to a nicety. It is at a very small minority of criminals we are aiming the section. In the meantime, I am in favour of the idea behind the section, that in the case of an accused who is on bail, having been charged with a substantive offence, at the time of the trial proper, offences committed between the time of the granting of bail and the trial should be taken into account and that consecutive sentences should be imposed in respect of such offences. That would be a deterrent, though Deputy De Rossa says there is no evidence to indicate that the section will be a deterrent. That is so but when the section is in operation we will then be able to judge as to whether it is a deterrent. Therefore, Deputy De Rossa might be prevailed on to withdraw his opposition to the section so as to give it an opportunity to operate. Subsequently, if it should be found that the section is not operating as it is intended to operate the Deputy could put his observations before the House. In the meantime the section should be given the majority support of the House. I will be supporting it. It is reasonable and should be given the opportunity of being put into practice.
On the last occasion I had got as far as to say that we welcome and support this measure. However, we must recognise that the Association of Criminal Lawyers do not support the new power of the District Court in respect of aggregate sentences of up to two years in prison but perhaps that is a matter we can discuss in greater detail later.
The question, as Deputy Andrews has said, is a very important, urgent and practical one. It is a question which people do not seem to understand very well but it is difficult for the ordinary citizen to tolerate a situation in which people are allowed out on bail after being charged with committing such crimes as housebreaking and the unauthorised taking of cars when during the bail period they continue to commit similar offences. We are all familiar with that situation so we can appreciate that there is a problem in this area. There has been a tightening up of the definitions of bail and this restricts the position of the Garda in that respect. The definitions are set out very well in John Kelly's book which deals with the O'Callaghan case and also with the general criteria for refusing bail or for granting it. The principle points are the likelihood of the individual absconding, interfering with evidence or interfering with witnesses. I do not know the extent to which the various criteria are used by the courts but in this book the author refers to the Supreme Court case of The People (Attorney General) v. O'Callaghan. This was a case in which bail had been refused in the High Court where Judge Murnaghan erected a new and more extensive set of matters which might be or should be taken into account where appropriate in considering whether it was likely the prisoner would attempt to evade justice. The extent to which this criterion may be applied is questionable. In regard to the fundamental test the matters are enumerated as follows: the nature of the accusation or, in other words, the seriousness of the charge. In this respect it is stated that it stands to reason that the more serious the charge the greater is the likelihood of the prisoner not appearing to answer it. The next criterion referred to is the nature of the evidence in support of the charge and the remark in this context is that the more cogent the evidence, the more likelihood there is of conviction and consequently the greater is the likelihood of the prisoner attempting to evade justice. As to the likely sentence to be imposed on conviction, there is the remark that the greater the sentence is likely to be, the greater is the likelihood of the prisoner trying to avoid it. There is the remark also that a prisoner's previous record has a bearing on the probable sentence and that that record should be before the court.
When one recalls some of the sentences imposed in respect of drug offences despite there being provision for sentences of up to 14 years, one wonders why bail should apply in these types of cases. A further point referred to in the Supreme Court case was that of the likelihood of the committing of further offences and in this connection there is the remark that a prisoner facing a heavy sentence has little to lose if he commits further offences, and since he may consider that he will have to go to prison in any event he may commit further offences in an effort to get money to support his family.
These criteria relate to serious offences but the crimes of housebreaking and of the unauthorised taking of cars are the ones being committed most frequently. The unauthorised taking of cars would not come within the definition of serious offences so those who have been involved in that offence have been able to evade this clause. There is reference to the possibility of the disposal of illegally acquired property and to the possibility of interference with prospective witnesses and with juniors. The prisoner's failure to answer to bail on a previous occasion can be taken into account also as can the situation of a prisoner having being caught redhanded. The objection of the Attorney General or the Garda may be taken into account but obviously this has not weighed too heavily in recent cases. There is reference then to the substance and the reliability of the bailsman offered and finally there is reference to the possibility of a speedy trial.
One point that could be raised is that offenders are not dealt with quickly enough and are given bail for the time during which they are awaiting trial. This brings us back to the question of how such offenders can be dealt with in practice. The Minister's approach of consecutive sentencing, while welcome, is only a partial solution. We must consider the length of time that elapses before offenders are brought to court. The Minister may be able to tell us, for instance, what is the average time from the date of arrest to the court hearing. It would appear that we need quicker justice in these cases and particularly in those cases which would be regarded as the more minor but which are affecting the community most. While normally it could be said that so far as the accused is concerned justice delayed is justice denied, but in this instance justice delayed is justice denied to the community. Therefore, a shorter time in bringing cases forward would be an important contribution. In the likelihood of an offender committing further offences, surely his case should be given priority. Why is there a backlog in the Circuit Court? What is the average waiting time? It would be helpful if the Minister told us something about that.
I am sympathetic towards the goal the Minister is trying to achieve. Let us take an example of where a person is charged with offence A and is put on bail while awaiting trial. He then commits offence B while on bail. The first trial takes place and he is convicted of offence A and a sentence is imposed. A trial takes place in relation to offence B and a sentence is imposed. I take it that what the Minister is trying to achieve is that the sentence for offence B should be consecutive with the sentence for offence A. The section as drafted does not achieve that.
As I read the section, the second sentence which is to be consecutive with the first sentence is consecutive on a sentence passed for any previous offence. Let us say someone is charged with offence No. 1. He is awaiting trial for that offence but is not on bail. He is charged with offence No. 2 which occurs subsequently to offence No. 1. He is put on bail while awaiting trial for offence No. 2 and is then charged with offence No. 3. While he was on bail offence No. 3 took place. Let us say he is tried and convicted for offence No. 3 but is not convicted for offence No. 2. However, he is convicted for offence No. 1. Is it the Minister's intention that the sentence for offence No. 3 should be consecutive with the sentence for offence No. 1?
I take it that what the Minister is trying to achieve is that the sentence for offence No. 3 would be consecutive with the sentence on the offence No. 2. However, in the example the person was not convicted of offence No. 2. Will the Minister say if that is what the section achieves or if that is what he intends it to achieve?
(Limerick East): I dealt with most of the points raised the last day. Deputy Woods mentioned many points about the circumstances in which people can be refused bail at present. It only happens in a small minority of cases. We should think carefully before we change that. Much of what the Deputy said seemed to imply that the person would subsequently be found guilty at the trial. Many of his arguments would only apply if there was an inference of guilt. We must presume a person is innocent until the courts decide otherwise. In that context there are very few occasions where the idea of refusing bail is not a form of preventive detection.
The question of delays was raised and there are delays on some occasions. In some District Court areas there is no delay. The lists are cleared whenever the court sits. In other areas there are delays. There was a delay in the Circuit Court in Cork but an extra Circuit Court judge has been appointed there and those delays have been reduced. Much of the concern about delays arises from a certain amount of confusion about civil cases and criminal cases. There are long and unacceptable delays in the High Court on the civil side. Frequently people transpose criticism of the delays there to the criminal side where delays are not very long. If Deputies want precise information on delays I will get it for them.
The delay may not necessarily occur before someone is brought to trial. It can occur during the trial. A person can be brought before the court and there might be an adjournment. He may then be brought back again and there can be a further adjournment. He is then found guilty and there might be an appeal. With the best will in the world if we remove the right to bail the appeal process could lead to a position where a person could spend a long period in prison if he was not found guilty. We should not interfere with the right of a person to bail, because a person is innocent until proven guilty.
The section is trying to close the loophole where at present a person who commits an offence while on bail at present knows he will not be punished for it. Subsection (1) provides that a sentence imposed for an offence committed while on bail must be consecutive with any sentence passed for a previous offence, including the offence in respect of which bail was granted. Where there are several previous offences the sentence for the bail offence will be consecutive with the last sentence to expire. Whatever the combination the onus is on the courts to provide consecutive sentences and the elements of discretion will be removed. I have lost the example I had in mind.
The Minister was talking about consecutive sentences.
(Limerick East): Thank you. Has the Deputy come back in?
I did not go out. I was just collecting my papers.
(Limerick East): Is the Deputy staying for the day today or will he be canvassing?
I am staying. This does not arise on the section. I was only trying to help the Minister.
(Limerick East): There is a difficulty about explaining things to people who come and go.
Does the Minister want him to call a quorum?
(Limerick East): The sentences will be consecutive under a variety of circumstances.
I do not follow the Minister's explanation. Under the section as drafted if a person commits an offence and is charged with it and subsequently is charged with a second offence, is put on bail and is then charged with a third offence, the sentence for the third offence will be consecutive with the sentence for the first offence if the person is not convicted of the second offence which is the offence he committed while on bail. That cannot be the intention.
(Limerick East): It is the intention. It sometimes happens that offences are not dealt with in the courts in the order in which they were committed. The Deputy seems to pre-suppose that offences will be taken in the order in which they have been committed. We must provide for the fact that they are not and that bail offences will be consecutive on any previous offence. If a person is charged with offence A and while on bail commits offence B, the sentence for offence B must be consecutive on that for offence A and also on any previous sentence. The section is drafted to take that into account. If this was not so the courts, by sentencing for offence B first, could get around the provision.
I do not see why they would want to do that.
(Limerick East): They could. I am asking the Dáil to make it obligatory on the court to impose consecutive sentences.
I accept the need to ensure that people, whether or not they are on bail or have ever been in court, should not feel there is no way they can be brought to book for offences they have committed. A large section of our society engage in what I consider to be the crime of tax evasion and never see inside a prison. I consider that to be a far greater social crime than many crimes for which people, particularly young people, spend six to 12 months in prison.
When dealing with this section we should be discussing whether this proposal will do the job we want it to do, in other words, deter people from committing offences while on bail. No one has yet given any hard evidence to show that this is so. On the contrary, there is hard evidence to show that long sentences do not prevent people from committing further sentences and going back to jail. Statistics in the annual report on prisons for 1982 indicate that many young offenders have been in prison up to five times previously and that almost 45 per cent of them have been in prison at least once before. Many of the adult population of our prisons have been in prison up to 20 times previously and 65 per cent of them have been in prison at least once before. There does not appear to be evidence to show that prison sentences, whether they be long or short, act as a deterrent. If a person is in prison for two years instead of one year he or she will not be available on the street to commit an offence for the extra year. Evidence shows that at least half of the young people who have been to prison will return there.
I do not intend to press opposition to the section, but in my view we have not given it sufficient consideration. This is one of the sections which show up the inadequacy of the way in which this criminal legislation has been dealt with. There was no in-depth discussion before this Bill was introduced by way of Green Paper, White Paper, a discussion in the Dáil Committee on Crime, Lawlessness and Vandalism, on the nature of crime, the reasons for it, why such a huge percentage of our prison population return again and again to prisons and so on.
I have seen it argued that a prison sentence of a month or two months has a much better effect on young people because the number of them who return to prisons after short sentences is much lower than those who spend long periods there.
Again I ask the Minister if he can give hard evidence that what he is proposing here will have the effect he and I desire — that people on bail will not commit further offences. But there is nothing in this Bill, and nothing has been said in this House to date, that will convince me that this section will have that effect.
I support the intention of this section. The public are aghast because people on bail are committing offences and when they go to court the offences are taken together and only one sentence is imposed. I hope this section will act as a deterrent because when various offences are taken into account the appropriate sentences will be added.
I see one difficulty here. At present prisoners are released early to make accommodation available for people who have committed more serious offences. I would like to know how these people are screened. The Minister might be able to tell me today or at a future date what procedures are being used, if there is consultation between the probation officers and the prison authorities and the Garda and so on. People should not be released at random. I am worried that people on bail will flout the law by committing offences and will steal enough to keep their families while they serve their sentence. I hope the deterrent in this section will be taken into account by these people. The fact that all the offences will be taken separately and sentences added to the original sentence. People are aghast when they realise that a man can ask for ten or 20 robberies or other offences to be taken together and one sentence imposed, but if another person is in court having committed one offence, they may both get the same sentence, although by committing further robberies the person on bail may have ensured that his family are taken care of while he is serving a jail sentence.
I support the intention behind this section but I am concerned about who is being given early release. We hear of people being sentenced at 11 a.m. or 12 noon who are back on the streets in the afternoon, sometimes jeering the gardaí because they have been released after a couple of hours. If a person is sentenced to prison, a certain proportion of that sentence should be served in prison. Perhaps at a later stage the Minister will be able to say what rules, regulations or other criteria are being used in cases of early release.
I hope that Deputy De Rossa will not take my comments personally — they are not meant to be. It is hard to see what proposals the Deputy would support to deal with the crime of old people being beaten up and struck to the ground by offenders who are on bail. As far as I can see, he is opposing every section in an attempt to plead a so-called liberal cause. I believe in being liberal and not in taking away people's freedom. I have been very questioning about certain sections of this Bill, but we must be realistic. Are we to defend criminals to the point of giving them more protection than those, mainly old people, who suffer from their misdeeds? That would appear to be the logical consequence of Deputy De Rossa's proposals. This legislation on its own will not solve the crime problem. We must tackle many areas, not least poverty.
Specifically in relation to this section dealing with crime while on bail, I do not find reasonable any of the arguments put forward, given the extraordinary number of such offences. The Minister gave some figures on the last occasion and it is my experience that people who are not able to defend themselves — the old and the very young — are suffering very badly at the hands of those who deliberately commit crime while on bail, knowing that all subsequent offences will be taken into account. This is one of our biggest problems. How can you reassure the old lady whose handbag has been snatched from her and who has been thrown to the ground, or the mother who is fearful of her children's safety? These offences while on bail are committed not because of some social deprivation, but coldly and calculatedly because the culprits reckon that they might as well be hanged for a sheep as a lamb.
This is one section which is very necessary and which I support very strongly. We are all under constant pressure from our constituents to do something about the present terrible crime problem. Last night, on Curlew Road in Drimnagh, I was stopped by three people who were protecting their local school. They wanted to know why crimes are taken into account when a person is being sentenced for the initial offence. We cannot have it both ways. Either Deputy De Rossa and all of us are here to represent the people and put forward a fair and balanced point of view, or we are not doing a public service.
This is a sensitive issue and the legislation is hard in many ways. I have expressed many reservations about it and would ask for checks and balances. Protection of the innocent must be tied into the Bill. Arguments on recidivism cannot be used in relation to crimes on bail, because the two cases are different. People who are sentenced to imprisonment again and again constitute a great problem, but crime while on bail must be acted against and this section sets out to deal with it adequately.
I ask the Minister, for the record, a question in connection with a person charged with an offence who commits other offences while on bail but is found innocent of the first charge. Is it possible to get a consecutive sentence on the second and other offences? Would the two year limit apply in the District Court for a second offence, for instance? In that case is the second offence taken as the first?
I regret having to speak again because I did not intend to. However, I must respond to Deputy Mitchell's remarks. He prefaced them by saying he hoped that I would not take them personally. I happen to be a person and he made reference to me, so I presume that he meant the remarks to be personal.
I am cringing now. Is that all right with the Deputy?
That is fine. The Deputy cringes a fair degree and he whinges a good deal as well. This Bill pretends to cope with crime. Deputies like Deputy Mitchell are going around their constituencies saying that it will solve the crime problem, but it will not. In private conversation, those Deputies will admit that it will not deal with crimes of vandalism in schools——
Would the Deputy please confine his remarks to section 9?
He was talking about section 9.
I am dealing with the questions raised by Deputy Mitchell.
Deputy De Rossa is trying to prevent the newspapers from getting the full story.
I take it that Deputy Mitchell is speaking for the newspapers. I am speaking to this Criminal Justice Bill.
The Deputy is playing to the gallery.
Deputy Mitchell, please.
I have sat through many hours of the debate on this Bill and I have no apologies to make to Deputy Mitchell for my opposition to various sections. They do nothing to deal with the crime problem. In fact, they would do more harm than good in the long run. I am opposing them because I am convinced they are wrong. On the point made that I am trying to plead a liberal cause, the facts are——
So-called.
——that the liberal element in Fine Gael are backing this Bill and those opposing it are people whom I did not previously regard as liberals. Unfortunately, in our society and also in other societies, liberals are the first to run for cover when things begin to get tough.
(Limerick East): That is why there is a liberal introducing this legislation.
Yes, that proves the point that I am making. The liberals rub their hands, saying how terrible things are, but when things get tough they run for the sledge hammer.
(Limerick East): The Deputy is all talk and no action.
Deputy Mitchell asked what methods I would support in dealing with the crime problem. I am involved in my own constituency in a number of initiatives in an attempt to deal with that problem. I do not intend to go into these in detail.
We are on section 9, Deputy.
In view of the fact that Deputy Mitchell has made some charges it is necessary that I refer especially to the bail aspect. I should be allowed to respond to the Deputy's remarks. He expressed pious hopes that this section might act as a deterrent, but he did not produce any evidence whatsoever in support of that hope. He sits on the Dáil committee dealing with crime, lawlessness and vandalism, but to date that committee have not come up with any proposals to deal with offences committed while on bail.
My main argument in relation to this section is that I am not convinced that it will have the desired effect which all of us wish for, that no person would feel free to commit offences, whether on bail or in any other state. There should be some form of deterrent. I am not convinced that consecutive sentencing will end the commission of crime while on bail. Deputy Cosgrave said there were people being dealt with for ten crimes and 20 crimes. I do not know if the statistics I have are the same statistics the Minister quoted in relation to crime on bail. The statistics I have indicate that in 1981 for the Dublin area there were 5,418 crimes for offences committed while on bail and 1,377 individuals were involved in those crimes. Those statistics are from the document Innocent until Proven Guilty, published by the Irish Council for Civil Liberties. They in turn quote an issue of the Garda News which in turn was supposed to be quoting from a confidential Garda file. That does not indicate that everybody on bail is committing ten and 20 crimes at a time. I am not convinced that this section will deter young people on bail. When you consider the cynicism indicated in the prison reports prison does not deter young people, in particular. The evidence is in the annual report on our prisons for 1982.
The Minister quoted statistics for 1982 as 7,880 indictable offences committed by people on bail. This represents about 24 per cent of all detected indictable crimes, so it is 24 per cent of one-third of the total crime figures. I would like to get the source of the statistics. The approach to crime from the Garda over the last few years has been in the form of statistics but it is very important to get the story behind the statistics in each case. The Minister told us that the type of crimes that are mainly committed on bail are larceny or burglary and, in recent years, certain drug related offences.
The reason I would like to get the statistics is because it is very important to establish the reliability of statistics especially if one is using those statistics as an argument for increasing powers, introducing a Bill like the Criminal Justice Bill we are discussing or to frighten the life out of everybody in relation to how crime is going. We have asked for these statistics many times. We asked for them in the Committee on Crime, Lawlessness and Vandalism, of which I am a member. We have many times questioned the statistics produced. When we have carefully studied the most crime ridden area in the country we have been able to reduce the number of crimes committed to a small number of individuals. We have been able to establish that a very small number of people are committing a huge number of crimes. That is one of the reasons why I would like to see where the statistics are coming from. It would be no harm if we could do a ten year study on the statistics produced, because there is a very important story behind them. We need to uncover that in order to tackle the source of the problem and not just be satisfied with what is put out in numbers twice a year every year. That is given as the reason for lots of things including the increase in the number of gardaí, the extra money we will spend or how we will tackle the crime problem.
We are not very up to date in our statistics. The Minister mentioned the last day that these statistics came by means of parliamentary questions, which I presume somebody in the Department accumulated over that particular year. I do not know how much weight to put on them. I believe it is fair to say that we should not, given the experience we have had with the statistics in relation to crime, put too much weight on them because they are very inaccurate and they are introduced in a precise way in order to produce a certain course of action.
(Limerick East): I ask the Deputy to withdraw that remark. The implication of that is that I am giving the House figures which are not accurate. I have given the House a figure and I have given the source of it. If Deputy Skelly wants to reject the figure it is up to him, but the figure is as accurate as I have been able to establish it.
I do not think I should——
(Limerick East): On a point of order I would like that withdrawn. Deputy Skelly argues, on the one hand, that he cannot get statistics and, on the other hand, he argues that when he gets them they are no use. That is all right, but he goes beyond that now and he is saying that I am deliberately producing figures to influence the debate on the Bill. I am not.
It was not intended.
Is the Deputy withdrawing the remark?
I certainly apologise if the Minister took it up that way but I was certainly not imputing anything in relation to his integrity. I was talking about general statistics. I have the highest regard for the Minister's integrity. I am sorry he thought it came across that way. I was talking about general statistics not particularly these statistics.
We are dealing with section 9.
These are statistics in relation to bail. The statistics that have been produced in the last decade have been unquestioned. I am asking the Minister to look at the story behind the statistics. I do not think for a moment that the Minister was taking that as a personal reflection on him. I am very sorry about that because I had no intention of doing that at all. I withdraw what I said if the Minister took it that way. I did not mean to infer that. It is important to say in consective sentencing that it is obligatory on the District Court to sentence consectively on any sentence passed on a person for a previous offence but we must look at the District Court and we must look at the appointment of judges in the District Court.
The Deputy is wandering away from section 9.
I am talking about consective sentencing.
We are dealing with consective sentencing on section 9.
In the District Court a person can get two years. It says here that the aggregate term of imprisonment in respect of those consective sentences shall not exceed two years. This sentence will take place in the District Court so there is a new responsibility on the district justices.
That is in section 10.
It is also in section 9.
I thank Deputy O'Dea for his intervention. I looked at section 10 to see if it was more suitable in relation to this. There is probably more detail in that section but I do not think it can be excluded from the debate on section 9. I will not dwell on it because I will come back to it again on section 10, if that is what the Leas-Cheann Comhairle wishes. We must not pass this section without examining the role of district justices and examining how effective they have been in the past. I stress that this is not a criticism of any individual district justice, they are all doing their best. They face great difficulties. There is a form of hit and miss justice in the District Court through no fault of theirs, but because of the volume and variety of cases. With 80 per cent of criminals and crime coming before the District Court it is very important that we should look at the composition of the court and look at the appointment of the justices and how they are appointed.
The appointment of justices does not come under section 9. The appointment of district justices cannot be discussed on section 9.
They will pass the sentences.
We cannot discuss their appointments.
I will not discuss their appointments. The whole system in the District Court has come under the spotlight in the past number of years. I am not an advocate of uniformity in sentencing. That should be left to the discretion of the justices. To the best of their ability they take the circumstances of every case into consideration. They have an enormously difficult task. I have every sympathy for them because they face difficulties in carrying out their task. Each case is judged on its merits and that is the way it should be. Since we are giving this extra year in the case of consecutive sentences that whole area should be looked at. If we get an opportunity later to discuss this in more detail I am sure it will be availed of.
I should like to know what criteria prevail in selection, appointment, training and monitoring in the District Court since they are being given these new powers. It is not absolutely true to say that because somebody commits offences while on bail he does not suffer any punishment. I am sure the extra offences are taken into consideration by the justice when sentencing the person. If a person commits ten crimes while on bail I am sure that will be reflected in the length of the sentence. It would be regarded as very serious if he committed a number of offences while on bail. I am sure the justice uses his discretion. All the offences are not ignored. It would be wrong if a person who committed offences while on bail was given a sentence equivalent to the sentence he would have been given if he had not committed the extra offences while on bail.
The Minister said he hopes the community service orders legislation will reduce the pressure on prisons. I hope it does. I look forward to the implementation of that legislation. He also mentioned the recruiting and training of extra probation officers. There is a certain deterrent in this section. I am not sure of the extent of it. I imagine that a person without any means or with a family to be supported is under pressure to get some money and he is tempted to continue his criminal activities. If he realised it could mean a longer sentence the section might deter him from committing crime. One could also say that if bail was not granted in certain cases that would also be a deterrent.
Generally the section is acceptable to most people. The intention is very clear. We should not rush through any section. It is not fair to criticise people because they want to examine something in detail even though it has a high acceptability rate. Very sincerely I would like to know more about the crime statistics which are used by penologists. As legislators, we should have as much information as possible, the best we can possibly get. I accept that the Minister has got the best information he can possibly get. There should be no hesitation in giving us the best information. We have an obligation to examine the implications of every section of the Bill. I have not succumbed to pressure that a certain measure should be brought in and we should lock everybody up. I do not intend to succumb to that pressure.
Who is advocating that everybody should be locked up?
Section 9.
There have been insinuations of that nature — that we need more prisons and we should fill them and have the streets free of all kinds of people. I have heard that advocated. It is unfair to cast aspersions on people who are in here representing the population outside. Certain sections of the Bill——
Section 9.
——should not become law and other sections should be carefully examined under the microscope even though they are popular. When we hear statements like the one made by my colleague, there is a danger of a blot on the name of anybody who questions a section such as section 9 because he might be considered soft on criminals or soft on crime. On other sections he is considered hard on the Garda, or Garda bashing. These are very unfair allegations because they question the sincerity of people in relation to this legislation. I do not think anybody, including the Minister, has enjoyed sitting in here for 12 hours over the past number of months. We are doing it because we believe in it.
I would be much happier if many more people were contributing to this section and other sections. There is a need for this section. Generally it will be welcomed by the community. I have considered the implications of the section. I do not think it will do much harm and for that reason I welcome it. While imprisonment is not a deterrent against crime, there is a strong possibility of a reduction in crime given that the life span of criminal activity is over a relatively short number of years.
I do not know what can be done with regard to the situation of bail. Once criminals are out of prison there is pressure on them to commit further crime. This happens because they become involved in certain activities and in many cases get their living as a result of criminal activity even though they may be on bail. However, that problem cannot be tackled by this legislation or in this way: that can only be done in the community, probably by voluntary and State organisations. We should pay careful attention to what has been said about the Bill by those involved.
While I have some reservations about the precise wording of section 9, for once I find myself in sympathy with the Minister. With due respect to all that has been said on the other side of the House and on this side also, the situation here is quite simple. We have a system of imprisonment, of punishment for crime which includes imprisonment. The suitability or otherwise of imprisonment as a punishment depends on what one wants imprisonment to achieve, whether it should be with a view to rehabilitation, deterrence or punishment. That debate has been going on for centuries as has been the debate regarding imprisonment as an environment for rehabilitation.
Except for the exceptional case which Deputy Skelly rightly mentioned, the position in relation the offences committed on bail is that the courts cannot impose the punishment of imprisonment for those offences, and to argue against closing the loophole here is to argue against the whole system of imprisonment as a method of punishment for crime. While I have reservations about the suitability of imprisonment as a form of punishment or of dealing with crime, I do not think anyone is seriously suggesting now that we should or can get rid of it.
(Limerick East): To contribute further to the numbers game, in 1980 some 5,145 offences were committed on bail; in 1981 the figure was 7,310; in 1982 it was 7,880 and in 1983 it was 8,295. The Garda say it understates the situation because they include only crimes where there was sufficient evidence to prefer charges.
What do the 8,295 offences committed on bail in 1983 mean? They mean so many cars stolen, so many houses broken into, so many old ladies mugged, so many handbags snatched and so on. That is the reality behind the figures. Because of an unwillingness on the part of the courts to impose consecutive sentences and because of the restriction of the power of the District Court to extend only to a period of 12 months we do not have consecutive sentences. Criminals who are given bail know that during that period of bail they have, in effect, a de facto immunity from punishment and we have to deal with that situation.
I know of only two ways to deal with it: the way I am proposing or by way of a referendum to change the constitutional position on bail which would allow preventive detention to be imposed by the courts. I am not prepared to propose preventive detention and, therefore, I am going for the other alternative. I will refer to a booklet Deputy De Rossa is fond of quoting entitled Innocent Unit Proven Guilty. If the Deputy reads page 58 of that publication he will find that the submission there supports what I am doing. While the authors of the booklet oppose the proposal of preventive detention, they say there are other ways of dealing with the problem. They point out that legislation could provide for consecutive penalties for crimes committed while on bail. That is what we are doing here.
Questions have been asked about how the section will operate. Rather than trying to debate the theory of that here, I ask Deputies to try to imagine what would happen in court. A judge or a justice would have to ask himself a very simple question. When a person came before him he would have to ask if the offence was committed while the person was on bail. If the answer is yes the sentence for that offence would have to be consecutive on any previous sentence. There could be a situation where there would be a number of offences — A, B and C, for example. If a person comes in on offence C the question is, was it committed while the person was on bail? If it is the first offence being tried, obviously it is a question of imposing a sentence because for the sentence to be consecutive it must follow on something that occurred previously. However, if the offence was committed while on bail and there was a previous sentence of any kind, the obligation on the judge is to impose a consecutive sentence.
At the moment the courts could impose a consecutive sentence but they do not do so. In addition, in the District Court there is the time constraint of 12 months and on many occasions this makes it impossible for them to impose a consecutive sentence. This will require them to do so. I described the situation where there was offence A, B and C and offence A for which a person was released on bail was the last offence for which he was tried. That offence was not committed while the person was on bail and there would be no obligation on the judge to impose a consecutive sentence for offence A if it was not taken in chronological order. However, that is not a weakness in the section. The section was drafted and is being promoted by me as a solution to the problem of offences committed on bail and offence A was not committed while the person was on bail. It was the offence for which he got bail in the first instance.
What we are proposing is a reasonably modest way to deal with the problem. The other alternative is a constitutional change that would deprive people of personal liberties. I do not believe in preventive detention and, therefore, I am putting forward this proposal.
I welcome the section which I consider most important. It is something I have been asking for since 1977 as essential to the upholding of law and order. I favour this method as against the question of preventive detention which operates in other European countries. However, there is no doubt in my mind that if a referendum to change the Constitution was called to allow for preventive detention it would be carried because of the degree of crime that exists at the moment. People are crying out for something to stop this. I know of many instances in my constituency of young hooligans who are arrested committing crimes, released on bail and who go back to complete the jobs which they were caught on originally. The hands of the court are tied, there is nothing they can do and I believe that this will have a profound effect on crimes committed by people on bail. I see it is restricted to two years and two consecutive sentences. I should like to see it operate for every crime committed by people on bail because there is nothing worse than people who have been caught in the act being released on bail and committing crimes for the next six months until their case is called. This is the strongest section in the Bill, I welcome it and I am glad I was here to contribute to the debate.
The Minister said there were only two approaches to the problem: the first is the way he is taking and the second is by referendum. There is, of course, another way and, in fairness to the Judiciary, that should be recognised. In this section we are making statutory the consecutive sentences and extending them to two years. The Minister has admitted that one of the constraints on the Judiciary at present is that they can only go to one year. If they could go on to two years, presumably they would use the second one.
(Limerick East): That only applies in the District Court. They have no discretion in other courts.
That is the purpose of subsection (1) which shall apply notwithstanding anything contained in section 5 of the Criminal Justice Act, 1951. That section 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. In fairness, in cases where offences are committed on bail, the courts impose a sentence which takes into account that an offence was committed by a person on bail. However, in the District Court there is no power to go beyond one year and to give them the power to impose two years might meet the situation.
We are also faced with the problem that the court can impose two three-month sentences or two six-month sentences and can, therefore, bring it under control and have discretion in that way. I know that both sides of the House think it is the right thing to do and that consecutive sentences should apply. I presume that in most cases of housebreaking and car stealing, bail is granted and this is where most of the problems arise in the community. Many of the instances which the Minister mentioned relate to housebreaking and car stealing. I read of a frightening case last night about somebody out on bail driving a stolen car.
The Supreme Court decision in the O'Callaghan case and others which followed gives some cause for concern. For instance, in cases of car stealing where someone is found red-handed driving the car there is a basis which seems to be accepted by the Supreme Court. In an appeal to the Supreme Court Mr. Justice Walsh recognised the propriety, though with certain reservations, of considering the matters which Mr. Justice Murnaghan had numbered one, two, three, five, six, seven, and eight but virtually tore up, with the agreement of Mr. Justice Budd, the rest of the scheme. He would not stand over ground No. 4 but he maintained six, seven and eight as did others subsequently. Number eight was the fact that the prisoner was found red-handed. One of the problems which the Garda face at present is that prisoners who are caught red-handed get bail and commit further crimes. The measure which we are adopting here may not do as much as we think it will and I am rather concerned about that. I see it as a partial remedy although I hope I will be proved wrong and that it will prove to be a better remedy in practice than it appears.
Where the alleged offender is caught red-handed and is seen by the Garda as likely to commit further offences, could special conditions be attached to bail such as reporting to a Garda station at regular intervals, be confined to the area around his home or give an undertaking to be at home between 11 p.m. and 7 a.m.? I think these conditions would help, as we know that many crimes are committed late at night and in the early hours of the morning. Perhaps the difficulty is that jail is too severe as a remand centre and that the Judiciary do not like to use it for remanding prisoners. When people are caught red-handed the criteria offered by O'Callaghan and further agreed to by Mr. Justice Walsh seem to follow. If that is the case surely conditions could apply to bail which would restrict the movements of these people until their cases came to trial.
Will the proposed legislative mandate for consecutive sentencing mean that there will be an increase in the prison population? Has the Minister prepared for the longer-stay prisoner as a direct result of section 9 of the Bill when it becomes law? I am not trying to back-track on my support for the section but it must be an area of concern to the Minister and his officials.
My basic reason for supporting the section is that there is a practice among a certain hard core criminal element to make a plaything of bail. They are professional, hardened criminals and they have blackguarded the system and operated it to their own advantage. While we are concerned about the criminal we should be equally if not more, concerned about the victim who has got little mention during the course of the debate on this section, and that should be a matter of concern to the House.
A tragic development is that a number of criminal families in Dublin city and county are engaged in the disposal of drugs. They have brought this to a fine art. Anything which prevents those individuals and families from using the bail system as it is operated at present will be of benefit to society. Deputy Skelly is right to express his concern about the courts and I do not think anyone is querying his right to do so. The courts and the judges operate the law given to them by us and, if we do not give them the type of legislation which is necessary, this House is at fault, not the Judiciary. I am a practising barrister and I am not in any way sycophantic towards the bench. I have been critical of certain matters over the years in relation to the operability of the Judiciary but we must provide them with the required legislation.
What is the average length of sentence imposed in the District Court?
(Limerick East): Deputy O'Dea was in general agreement with this section. Deputy Woods talked in terms of other options which could be considered and mentioned that the courts could attach conditions to bail. There is nothing in the section which prevents that. The judges can deal with the problem as they see fit. The District Court have the right to impose conditions. While there would not be an obstacle to the imposition of conditions, the difficulty would be in enforcing the conditions in any practical way. If the level of enforcement was such that a person had to go to a Garda station every half hour or stay in a Garda station there would be another form of preventive detention and an interference with the liberty of the individual on bail. If some kind of curfew were imposed whereby a person could not leave his house between 9 p.m. and 8 a.m., it would be impossible to enforce. I would doubt the constitutionality of such a provision. There would have to be some kind of monitoring so that the Garda could see whether the conditions were being met. While something could be done by judges and justices, it would not be very easy to enforce the conditions which might be considered appropriate.
Deputy Andrews raised the question of the availability of space in prisons. This is a major concern. Deputy Cosgrave referred to it earlier. People are not sentenced and then let out after a couple of hours or even a couple of days. There is a policy on this question and it is carefully monitored. It has entered into folklore that people who are sentenced in the courts are back on the streets very quickly. This is no longer so. It is said by members of the public as a general criticism. It is also said by members of the Garda Síochána when they are criticised for not being more effective. People at the end of long sentences or those serving very short sentences of 14 days or a month are considered for early release in the first instance. There is a report from the prison and the Garda as to whether these people are likely to get into difficulty again if they are allowed back into their own community. This is taken into account. In the case of people who have been in prison for a while there are reports from probation officers and from the prison committees dealing with remission and release. It is monitored very carefully. At peak periods such as late autumn when the court session resumes there may be a back-up of sentences and a lot of people may be sent to Mountjoy. A total of, say, 15 people may be sentenced on a particular Friday when the prison is full. Some of these people may be sentenced for very serious crimes. The only way to provide space for them is to let out people who are inside. This is done very carefully. Deputy Cosgrave made the point that we should always try to ensure that people serve a reasonable proportion of the sentence imposed. This is being done but it is not easy.
Since I became Minister accommodation for an extra 400 people has been provided in our prisons by a combination of better use of space and the use of Loughan House as an open prison. The average number of prison inmates was about 1,240 or 1,250 and the average is now about 1,650. The occupancy varies from day to day. I think it will be possible to accommodate another 80 or 100 this year but that space will not suffice in the light of the projections I have to hand. The first major relief will come with the opening of the new prison in Clondalkin which will provide 400 additional places. The target date for that prison is the summer of 1987, quite a long way off.
In the meantime the community service order legislation will be of benefit. Staff are being organised and people have been short-listed for interview. I hope that in the next session courts will be able to implement community service orders. A seminar was held about two weeks ago where district justices——
I do not think that a detailed discussion on prison space is in order on this section. While a reference to prison space might be in order, the principle relates to consecutive sentencing for people who commit offences while on bail.
(Limerick East): I accept your ruling. I was replying to specific points raised. Deputy De Rossa asked about the average sentencing in the District Court. The maximum sentence which can be imposed is 12 months but I have no information on the average. If the statistic is available I will communicate with the Deputy.
May I put the question? We have been discussing it now for two hours.
I am glad to know how long it has taken. This is a major section which needs to be clearly understood and any relevant ideas should be raised. The Minister says there will be a difficulty in enforcing conditions. Let us be clear about the position for the benefit of the Ceann Comhairle, who may not have been here when I spoke earlier. We are accepting the section but it is a partial solution.
That is what I gathered.
We are trying to get at the problem which we know to be in the community. The Minister suggests that there would be difficulty in enforcing conditions. We may need to think more about such enforcement. We may have to face reality in this respect, in that there are certain people who while on bail, particularly in the small hours of the morning, will commit further criminal offences. While the consecutive sentences may act as a deterrent to some it is possible that for many others they will not. The question of the enforcement of the conditions, as the Minister recognised, is one for the Garda in the first instance in that they would have to carry out any checking-up that needed to be done. In the case of somebody who is caught red-handed it would seem to be a reasonable condition, and one not very difficult to enforce, that the Garda would check on such people or get an undertaking that they would be in their homes between, say, 11 p.m. and 7 a.m. and, if they broke that undertaking, that they would lose their bail.
Then the question may be posed: what about the constitutionality of losing bail? As matters stand at present it would seem that being caught red-handed is one of the fairly substantive matters that can be taken into consideration in refusing bail in the first instance. I appreciate that the Minister is attempting to deal with the problem through this mechanism. It may be that measures like those I have mentioned would be practical aids in tightening the situation further and I would ask the Minister to bear them in mind.
I do not agree with the Minister when he questions the constitutionality of imposing certain conditions in relation to people who are caught red-handed. As far as I can recall, the whole basis of the O'Callaghan decision was that preventive detention was unconstitutional since it pre-empted what would be the decision of the court in relation to the offence in respect of which the person was on bail. The more likely the conviction, for instance, in the case of people caught red-handed, the lesser the possibility that the terms of the Constitution would be infringed by attaching conditions to the bail granted such people.
I do not agree with Deputy O'Dea on that. It was my understanding that the O'Callaghan decision was based on the grounds that one could not anticipate that somebody was about to commit a crime, that even in the case of a person caught red-handed one could not say that they were going to go out and commit another crime. It was because of that it was ruled unconstitutional, rendering the introduction of this new law necessary.
The reason I asked the Minister if he could give the average length of sentence in the District Court was that this would have a bearing on the number of additional places he would have to find in our prisons in order to cope with the implementation of the provisions of this section. The Minister referred to the fact that I have had recourse to the document Innocent until Proven Guilty which was the only place I could find statistics relating to bail. Indeed it was said in that document that they were not all that convinced of the reliability of those statistics. It was said in that document also that in 1981, for Dublin and the rest of the country, there were approximately 2,000 individuals involved in committing offences while on bail. If the average length of sentence in the District Court is less than six months and if 80 per cent of those 2,000 people are known to be involved in crime while on bail, then one is talking of something in the region of 700 years in sentencing time if the provisions of this consecutive sentencing section are to be implemented. My argument is that this section will not fulfil its task. Could the Minister indicate how he proposes that kind of prison space can be found in order to render the section effective?
(Limerick East): I submit that we are going round in circles at this stage.
That is true because the Minister is not responding to the points I am making. The Minister is arguing——
We are certainly having repetition.
——that the provisions of this section will deter people from committing offences while on bail.
(Limerick East): On a point of order, a Cheann Comhairle, you ruled me out of order already when I was dealing with the question of prison space.
It might not be correct to say that I ruled the Minister out of order. It is the Chair's business to try to avoid repetition and argument, which is not in order on a section, and to endeavour to guide the debate in a reasonable way. That is all the Chair is doing. I suggest we might dispose of this section now.
I am quite happy to dispose of it now. I might say, in relation to the question raised by Deputy Briscoe, and which I thought the Minister might have clarified, that there were two separate sets of criteria in relation to the O'Callaghan case. Ground No. 4 had to do with the likelihood of the commission of further offences while on bail and No. 8 with the fact that the person was caught red-handed. Therefore, they are two separate issues. Subsequently on No. 4, on appeal in the Supreme Court, Mr. Justice Walsh recognised the propriety of these and, in considering the matter, virtually tore up, with the agreement of Mr. Justice Budd, the rest of the scheme. He said in relation to ground No. 4 that the likelihood of the commission of further offences while on bail was a matter which in his view was quite inadmissible. But ground No. 8 stands irrespective of that ruling, that is, if a person is caught red-handed. That is why I asked the Minister earlier to clarify the position because there is considerable public confusion about the circumstances in which bail can be refused. The reason we are introducing this consecutive sentencing provision is because of the concern felt about offences being committed by people while on bail.
(Limerick East): The question of being caught red-handed arises from a consideration of whether a person would be likely to abscond or not. The pre-supposition would be that if somebody was caught red-handed there would be a very high likelihood of their being convicted and, therefore, there would be an incentive for that person to abscond. It is not a separate cause. It is tied in with the whole idea of absconding, and the courts can assess that. It is not a separate question, that if somebody is caught red-handed ipso facto you do not grant them bail. It is all part of a debate on whether or not somebody is likely to abscond. That is the issue of being caught red-handed which was debated in the O'Callaghan case.
But the point is that it is separate from ground No. 4. Deputy Briscoe was confusing one with the other.
(Limerick East): But it is not a separate issue.
They all go together. I thought we had covered that earlier. It would have been helpful had the Minister explained that when Deputy Briscoe finished. Lest anybody takes a different view I want it to be clear that of course we agree with the findings of the Supreme Court in this respect and the constitutional position in relation to No. 4, as stated in the O'Callaghan case. However, No. 8 is still one of the factors that can be taken into consideration in regard to the other matters that are listed. It may be that some further measures are needed for special cases. We support the measure before us and hope it will do some of the things we want it to do.
When I was making my contribution I referred to instances in my constituency where people were caught red-handed breaking and entering. They were taken to the station and charged but they had to be released on bail. Obviously, they were 16 or 17 years of age and the Garda knew they would not respond. It may be that they had a long history of criminal activity. I am concerned about such people whether they are handbag snatchers who commit further crimes after being released on bail although they may have been caught red-handed. Very often such people are not brought before the courts.
Question put and agreed to.
SECTION 10.
Question proposed: "That section 10 stand part of the Bill."
(Limerick East): To a great extent we have discussed section 10 in the context of section 9. Section 5 of the Criminal Justice Act, 1951 (No. 2), provides that where the District Court imposes consecutive sentences they cannot exceed 12 months on aggregate. Subsection (1) proposes to increase this limit to two years. It also amends section 5 to provide that imprisonment in that section shall include detention in St. Patrick's Institution. This provision is necessary to take account of a Supreme Court decision that section 5, does not apply to detention in St. Patrick's Institution. The relevent case is the State (Séamus Fitzgerald) v. The Governor St. Patrick's Institution, 2 March 1983, unreported. Accordingly it makes it clear that consecutive sentences of detention in St. Patrick's Institution can also be imposed. Subsection (2) is designed to avoid the anomaly which would otherwise exist in relation to consecutive sentences imposed under section 13 (1) of the Criminal Law Act, 1976, for an offence committed while serving a sentence. It increases the 12 month limit on aggregate term to two years in line with subsection (1).
There are no amendments to this section and we accept it. A number of points have been raised about it. The Association of Criminal Lawyers say they would oppose the section on two grounds. The first matter they raise is the quality of the justices now being appointed to the District Court. They state that there seems to be no criterion on which many of them are appointed and many of them do not have the expertise, experience or ability to deal with the types of cases that regularly come before that court. That view has been broadcast widely. Perhaps the Minister will tell the House about the quality of justices and the criteria. Is it true that approximately seven years' experience as a solicitor or barrister is required?
(Limerick East): Ten years.
If ten years is required then there is considerable experience involved. If there are defects will the Minister outline how they can be dealt with.
The association state that the section may be unconstitutional in that minor offences only may be tried by a court of summary jurisdiction. According to the association this provision would allow a two year sentence in respect of a minor offence where that offence has separate constituent parts — for example, in the case of not co-operating with the Garda, obstructing or resisting, a breach of the peace or in the case of forging a cheque, fraud, forgery and uttering. The minor offence test is regarded as 12 months by the courts. The association referred to the book on the Constitution by Deputy John Kelly. In that book he states that the Constitution nowhere defines a minor offence. He states that it has been said that one can have little doubt that the framers of the Constitution, when in Article 38 they spoke of a minor offence, meant the kind of thing that had been generally understood to be minor under the laws of Saorstát Éireann, but some relatively recent cases revolved around the question of whether a particular offence was minor enough to be constitutionally trialable summarily and a more complicated set of criteria emerged without producing a result entirely clear or entirely satisfactory. Will the Minister say something about the nature of the minor offences and the constitutionality of extending the term to two years.
What will be the position in regard to two offences arising from the same facts? For instance, in the case of malicious damage to a pane of glass or window and the larceny of a bottle of milk would it be an abuse of the spirit of the section to have two offences included there? We know well that when a charge arises in regard to a set of facts it very often includes a number of offences in relation to that set of facts.
Another question is whether by increasing the jurisdiction of the District Court it will make it more attractive to opt for a trial by jury at the Circuit Court. If that is the case will it have the effect of overloading the Circuit Court.
(Limerick East): The Association of Criminal Lawyers misread the section. They argued against the section as if there was a general provision to increase the sentencing power of the District Court to two years. That is not what is proposed. What is proposed is that for the specific instance of offences committed while on bail the aggregate of two or more offences can come to two years maximum. Many of the points that have been raised by the association are not relevant to the section for that reason. The second point the Deputy raised was whether the provision is unconstitutional. Two years for one single offence in the District Court which sits without a jury could probably be unconstitutional but that is not what is being proposed. The Association of Criminal Lawyers interpreted it as such and made a submission to many of us on the basis that it would be unconstitutional. It could hardly be interpreted as a minor offence. It is not the nature of the offence but the nature of the sentence. If the offence attracts a sentence of up to approximately 12 months then it is a minor offence that can be tried in the District Court. What I am proposing does not affect that because it would be a second or subsequent offence committed while on bail. It would be the combination of two minor offences which would give the period in excess of 12 months.
A question was raised whether a person while on bail could be charged with two separate offences arising from the same set of facts. That happens all the time. There are a certain set of facts, there are a number of offences and people are charged separately with those. The courts would be obliged to sentence people consecutively on those, but it is not mandatory on the District Court to sentence somebody to a total of two years. In a set of offences, on offence A somebody is out on bail and gets 12 months for that offence. If offences B, C, D and E are four offences related to the same set of facts the district justice has discretion on what period to allocate to any of the offences. He is under two restraints. He cannot exceed the two years in toto if it is in the District Court and it is obligatory on him to provide consecutive modules for each offence committed while on bail.
The Minister mentioned that the sentence for the second offence would run consecutive to that for the first offence if the second offence was committed while the offender was on bail. I have not got the Criminal Justice Act, 1951, here. Does section 5 of that Act refer specifically to bail?
(Limerick East): No. Section 5 of that Act provides:
Where a sentence of imprisonment is passed on any person by the District Court, the Court may order that the sentence shall commence at the expiration of any other term of imprisonment to which that person has been perviously sentenced, so however that where two or more sentences passed by the District Court are ordered to run consecutively the aggregate term of imprisonment shall not exceed twelve months.
What has it to do with bail?
(Limerick East): I am increasing that now to two years.
The Minister is proposing that where the District Court orders in any circumstances that the sentences for two offences will run consecutively the maximum period can be increased to two years regardless of whether the second offence was committed while the offender was on bail for the first offence.
With certain offences a number of charges may arise out of the commission of an offence. For example, a person who forges a cheque could be charged with forgery, larceny or a number of charges arising out of the one offence. My understanding of section 5 of the Criminal Justice Act, 1951, is that it was to put a limit of 12 months maximum imprisonment no matter how many charges were brought against the person arising out of an offence. That was brought in to ensure that sentences imposed by district justices that would be appropriate for minor offences would not exceed 12 months. Leaving the question of bail aside, is there not a danger here that, as Deputy O'Dea points out, for one offence — say uttering a forged cheque — a person charged with the larceny of the money involved and with the offence of forgery itself could be sentenced to a term if imprisonment of, say, two years?
(Limerick East): All it does in effect is change the 12 months to two years——
Is that not the problem?
(Limerick East):——but the two years cannot be imposed for a single offence. The two years could be imposed only where there would be two or more offences.
If a person commits one offence arising out of which he may be charged with several different offences — that is commonplace with some offences — is it possible under this amended section that a person in the District Court could end up, because of one incident giving rise to two or three charges, being imprisoned for two or three years? Is there not a danger that the Supreme Court would find that unconstitutional?
(Limerick East): No. Section 9, with which we have just dealt, makes it obligatory on the district justice to impose consecutive sentences in relation to bail. Section 10 changes section 5 of the Criminal Justice Act, 1951, and allows, where sentences for two or more offences are being imposed, that they can aggregate a total of maximum of two years, but there is no obligation. The obligation which is in section 9 in relation to bail does not oblige him under section 10 to put in consecutive sentences.
Does it increase the sentences generally to two years in that case?
(Limerick East): For two or more consecutive sentences.
Yes, but not purely relating to bail. If that is the case, then it can relate to any offence or to a number of offences arising from the same set of facts.
(Limerick East): Yes, but the obligation in section 9 is not carried over into section 10.
I appreciate that. Section 9 is mandatory, so to speak. The whole point is whether it extends a minor offence into something bigger for summary conviction.
(Limerick East): If the offence is non-minor the accused is entitled to trial by jury and the district justice must refuse jurisdiction and send him forward for trial if he thinks the offence is a non-minor one. That obligation is on the district justice.
Whether an offence is minor is not a question of obligation; it is a question of what a court can have power to do and the sentence that the court has power to give.
It has power to go up to two years now on consecutive sentences, so it could go up to two years in a situation arising from the one set of facts.
(Limerick East): The District Court has the power to sentence people to a maximum of 12 months for one minor offence. I use the word “minor” in the sense that the court has jurisdiction over only minor offences. The extension to two years will apply only if there is more than one minor offence. The aggregate of minor offences could go to two years.
On the example I gave originally of a number of sentences arising from the same set of facts, you could have, say, a breaking and entering and stealing a bottle of milk. The breaking of the pane of glass could result in a charge of malicious damage, then there is the larceny of a bottle of milk, which could lead to two charges arising and two consecutive sentences. You could go to a sentence of up to two years from the same set of facts.
(Limerick East): That it arises from the same set of facts does not mean that two offences were committed. If somebody is arrested and charged with the larceny of a bottle of milk the courts could decide on that. If somebody is arrested and charged with malicious damage for breaking a pane of glass in somebody's house he could be charged with that. If he does both he has done something more serious than the person who does either of the two acts separately.
Now he can get two years. The possible sentence is increased in that case to two years. I gave as an example the one action, breaking glass, in order to steal a bottle of milk and thereby two charges arising from that one action. The two charges in that composite offence may result in a sentence rising from a possible one year to a total of two years, therefore taking in overall a situation less than minor. Is the Minister suggesting that in such a case the district justice should pass it on to a jury? It is fairly obvious that it is intended that these two minor offences will incur a sentence of up to two years.
(Limerick East): Somebody commits two crimes related to the one set of facts. That is still two offences. If somebody is before the District Court for two offences, under section 10 of the aggregate sentence can run up to two years whereas at present it can run up to 12 months, but somebody cannot be sentenced for up to two years on one charge, on the one offence.
I understood Deputy Woods to say that the apparent intention of the section is that the number of consecutive sentences to be imposed by the District Court in respect of one set of facts would be limited to 12 months. It is proposed to extend that to two years, and I would urge the Minister to examine the position between now and Report Stage lest there be a danger that the section would be found to be unconstitutional. Let me give one example.
If I steal a cheque from the Minister's cheque book and I write a cheque for £10 and I go to Christine in the diningroom and she cashes the cheque, I begin on a clear set of facts. I have stolen a cheque which is valued at 25p or something; by filling in the cheque and signing the Minister's name I have committed the act of forgery; I have stolen the £10 I obtained, and I would have committed a crime of false presences or fraud. Four different charges could be laid against me in respect of that one incident. Generally speaking, when charges are brought by the Director of Public Prosecutions in such matters, every possible charge is brought. In the instance I have cited I could be convicted of fraudulent offences. At present, the maximum sentence in the District Court would be one year. It is proposed to increase that to two years. I submit to the Minister that there is a possibility that the view of the Supreme Court has been overlooked. A court might interpret the four charges with which I would be indicted as constituting one matter and therefore it would be unconstitutional if I incurred a sentence of two years imprisonment in the District Court.
(Limerick East): Deputy Molony has outlined the position correctly. The net point is that he thinks it might be unconstitutional. My advice is that it is not, but I will take further advice on it.
Is there a danger that a justice in the District Court might decline jurisdiction and pass it on to a higher court? Of course, the accused can opt to go to the higher court or the justice might decline jurisdiction on the grounds that the total would not constitute a minor offence only.
The Minister indicated that the Association of Criminal Lawyers had misunderstood the section. The intent of the section is to provide for consecutive sentencing of persons committing offences while on bail. From the discussion so far it seems that the effect of the section will be far wider and that the Association of Criminal lawyers in fact did not misunderstand the section because it seems the position as explained by Deputy Molony is the correct one. In view of that, would the Minister not agree that it is unsatisfactory that courts which were established to deal with minor offences and to provide for sentences of up to a year will not be able to sentence people to two years? If the District Court feel that heavier sentences may be imposed they will transfer the cases to the higher courts and juries in order to have the cases tried. It seems to me the section is far too wide.
(Limerick East): The accused has the option of trial by jury in a higher court. The district justice must be satisfied that the case involves a minor offence. There is no obligation on the justice to satisfy himself that the aggregate of the offences constitutes a package which is minor. If certain justices say that particular offences are not minor they will refuse jurisdiction and the matter will go to another court. There is no obligation in section 10 on justices to impose sentences aggregating two years. They can opt for an aggregation of less than two years, perhaps the present 12 months.
The definition of a minor offence is not concerned with the sort of sentence the court will be obliged to impose but with the sentence the court can impose. I see the point made by the Association of Criminal Lawyers in the submission referred to by Deputy Woods and I think the Minister has taken too narrow a view of "minor offence". I am glad the Minister, in reply to Deputy Molony, has agreed to look at the matter again because I would be afraid it would be unconstitutional.
On the section generally, I agree with Deputy Skelly's earlier point that the power of the District Court, regardless of precisely what the section means, is being increased substantially and it is obligatory on us to focus on the system being operated in the District Court. I am quite happy that the criteria laid down for the qualifications of persons to act as justices are sufficient because I think ten years of practice is a long enough period, but we must look at the whole system of the dispensation of justice in the District Court. It is well known that in many cases in the District Court justice is dispensed in minutes — indeed I have seen justice dispensed in the District Court in less than one minute in many cases. We will have to look at the entire system of this slot machine justice which operates in the District Court. Now that the District Court will have the power to sentence a person to a maximum of two years, which is quite a long time, we will have to examine the whole system seriously.
(Limerick East): That is all very well and I should like to contribute to that debate on a future occasion——
The Minister is giving the power now.
(Limerick East): The net point is that if the offence is indictable — the larceny of a penny is an indictable offence — the accused has the right to opt for trial by jury, and I am sure the accused will be legally represented and advised.
I agree with the last point made by the Minister, but let us take a practical look at this. It is becoming a feature of our system, particularly in the south of Ireland, particularly in Cork at the moment, that it takes years before a person charged with a crime in the Circuit Court is actually brought to trial. If a person is charged, as has happened in recent times, with the larceny of a newspaper, or a bottle of milk, or a pint of Guinness, that person will opt for trial by jury in the Circuit Court in the knowledge that it will be a year or two years before his trial will come up. Justice by slot machine, as described by Deputy O'Dea is not at all satisfactory, but I would remind the Deputy that our Circuit and our District Courts are not so much courts of justice as courts of law. If we want to infuse justice and practicality into our courts we must look at what we are doing on occasions like this.
I am inclined to sympathise with Deputy O'Dea who said that if we increased the jurisdiction of the District Court to impose a maximum sentence of two years instead of one year we will be in danger of making the District Court a more unpopular place in which to have cases tried. Let us assume for the sake of my argument that one would get the same measure of justice in the District Court as one would get in the Circuit Court, though it is my experience that in the great majority of cases where persons are found guilty of offences the sentences imposed by the District Court are generally much less severe than those imposed for similar offences by the Circuit Court, Because of the delay in the Circuit Court people are opting for trial by jury and this is resulting in the whole legal system being clogged up. The sort of approach being adopted in section 10 may only encourage more people to opt for trial by jury. Consequently, the Minister should consider the section carefully before persisting with its passage.
(Limerick East): There are delays in Cork but these are for a specific reason. An extra Circuit Court judge has been appointed and I understand that the President of the Circuit Court is allocating him to the Cork area, but there are no serious delays in the Circuit Court elsewhere in the country. On the question of people opting for trial by jury, in such cases the maximum sentence in respect of larceny, for instance, increases to seven years. However, I take the point the Deputy is making. There may be a problem and, as I have said to Deputy Molony, I will consider again the constitutionality of the provision but in many of these situations the Executive do not have control over the Judiciary; the Judiciary must run their courts as they see fit but we cannot cross every “t” or dot every “i” because practice in the court might be different from what our intentions was.
Can the Minister say what percentage of prisoners are sentenced in the District Court?
(Limerick East): The figure is 90 per cent of all criminals.
With so much of the overall crime being dealt with in the District Court, this section might have the effect of driving people into opting for trial by jury and thereby causing considerable problems in the Circuit Court.
The Minister spoke of the question of determining what a minor offence is. We are dealing with an area in which in respect of minor offences, whether in cases of bail or in cases to which the Criminal Justice Act of 1951 applies, sentencing is being increased to two years. The question then is whether that brings it outside the area of minor offences and into a major category. Regarding the definition of minor offences which I quoted earlier, Kingsmill Moore J. said that, regarded from the point of view of the citizen, the difference between a minor and a major offence depends chiefly on the punishment meted out to the convicted person. He went on to say that from a moral point of view the offence of smuggling varies enormously, that the importation of a pair of silk stockings for personal use would not be too sternly reprobated even by strict moralists but that large-scale smuggling of valuable items, organised and conducted as a profitable business, was not only being reprobated in severe terms by judges but would be regarded by most people as involving moral delinquency. Mr. Kingsmill Moore went on to say that if the introduction of a pair of silk stockings were to be made punishable by a fine of £100 and imprisonment for six months, if the offender cannot find the money, he could say, looking at the matter objectively, that the offence had been stamped as major by reason of the extent of the penalty and that before being convicted of an offence involving such consequences he should be able to claim that his guilt be established before and by a jury.
That deals very much with the sort of problem we are faced with here in providing for aggregate sentences of two years. Ó Dálaigh J. pointed out also that, if one is to have regard to the reality of the guarantee of trial by jury, the amount of the penalty in every case must be a very important, if not the most important factor, in determining whether an offence is minor. Therefore, it would seem that the whole question of whether an offence is minor would be in doubt particularly in relation to a number of charges arising from the same set of facts. Because there is a question mark in this regard, I am asking the Minister to reconsider it between now and Report Stage.
(Limerick East): It has not been shown that there is a question mark involved but since the House is pressing me I will look at the matter again. The issue is very straightforward. There is no obligation on a judge to impose sentences of two years.
It is not a question of obligation but of the sort of sentence that may be imposed.
(Limerick East): Of course the question of obligation has something to do with it. Regarding minor offences, larceny, for instance, is not regarded a minor offence but the larceny of a £5 note could be dealt with in the District Court because the justice would satisfy himself that, in the circumstances involved, the incident was minor.
The Minister has put his finger on the whole point at issue. If a district justice decides that the larceny of a £5 note is a minor offence he deals with the case but because there are two or three types of charges being preferred, though only the larceny of the £5 is at stake, the person could be sent to jail for two years.
(Limerick East): He would have the right to trial by jury and the right to appeal.
Does this mean that more offenders will apply for trial by jury thereby clogging up the Circuit Court?
The point is that for a minor offence one can be sentenced to two years imprisonment.
(Limerick East): That is not so. For a minor offence there is a maximum sentence of 12 months while for more than one minor offence the maximum sentence is to be two years.
The point is that for a series of offences arising from the one incident, the two years maximum sentence may apply. On that basis one can be sentenced to two years for what would be regarded generally as a minor offence.
The District Court provides a very valuable service to the community in dispensing justice even if that is not done too quickly in some cases. Most people in the District Court opt for summary trial there and then because if they opt for trial in the Circuit Court they are going into a new sentencing policy. This can involve much longer terms of imprisonment so obviously people are inclined to opt to have their cases heard in the District Court. Therefore, we should maintain this sentencing policy of the District Court and not increase the maximum to two years. However, I would urge the Minister to look at the matter again, though he seems convinced that his interpretation is correct.
I asked the Minister a number of questions which he did not answer. What is the position in relation to delays in the Circuit Court? This section will result in extra work for the Circuit Court.
(Limerick East): It is not correct to say I have not answered questions. I said that there were no serious delays except in the Cork area and that we had appointed an extra judge in Cork. I hope that will help the position. I will take what Deputies said into account. We all want to do something about the position of offences committed while on bail and the House generally has agreed that section 9 is a very good section. In order to impose consecutive sentences for offences committed while on bail I need section 10 or something close to it. I will look at it again to see if section 10 can be confined simply to the question of bail.
The point which I tried to raise in relation to section 9 applies more specifically to section 10. It is the question of prison accommodation. The Minister has given an undertaking that he will see if section 10 can be confined to those who have committed offences while on bail.
As regards sentencing, the only figures I can get, having had a quick look through the annual report on prisons for 1982 for males and females, are that 80 per cent of sentences appear to be between three months and 12 months. The other 20 per cent is divided between those over 18 months and those below three months and as low as two weeks. I have no idea how many of these sentences apply to the District Court. We have very little information about the practicality of applying this section. I indicated earlier that statistics available to me showed there were in the region of 2,000 people involved in committing offences while on bail. If 80 per cent of them are convicted and given consecutive sentences, we need additional prison accommodation to accommodate these people. Apart from the question of constitutionality or whether the section can be confined, there is the problem of the practical application of the section. Assuming we have consecutive sentencing where will we put these people?
The Minister said he had answered questions which were asked. I asked a question about the quality of justice. He made statements about this outside the House. Will he expand on this here? The only answer he gave was to say that it was not seven years experience as a solicitor or barrister but rather ten years. That is very satisfactory. Will he comment further on this question on the position in relation to district justices?
(Limerick East): I will, but I do not think I will be in order.
The Minister will be in order because the section deals with giving additional powers to district justices. A Deputy was told earlier that this is relevant under section 10.
Dublin North-West): The section cannot be used as a peg to discuss district justices. The Deputy can make a passing reference to it.
The Minister might make a passing reference and give his views here rather than always giving them outside the House.
(Limerick East): On a point of order, I have put a lot on the record of the House. It is not fair to say I always give my views outside the House.
In relation to this question I am only asking that the Minister give his views in the House. We are talking about extending powers. Various people including the Association of Criminal Lawyers raised questions about it. We have already seen that the qualification regarding experience is adequate. Will the Minister tell us how he considers justices in the District Court to be adequate? Does he think anything further is necessary?
Acting Chairman
That is widening it too much. The Minister can make a passing reference to it only.
When I was speaking on section 9 I raised this matter and the Chair said I could raise it under section 10 if I wished as that was the section under which to raise it. This is a very important element. We are not trying to put the Minister on the spot. Many people have expressed concern about this. We said we would like to discuss it and see in what areas the system could be improved, without unduly criticising any person in the District Court. We realise the enormous burdens district justices have trying to dispense justice in the courts.
How can we hope to improve the situation there? Under the section we should maintain the existing sentencing policy with the proviso of consecutive sentencing for offences committed while on bail. I agree that the modules element is a very good feature in the section in that a district justice could give, for example, a sentence of six months plus two months, plus one month plus two weeks.
The only other point is in relation to the power we are giving district justices. I understand how the Minister intends this to work: that a justice can sentence up to two years. That brings us to the question of district justices and how the District Courts operate. We are increasing their powers. I ask the Chair to accept that it has already been ruled on.
Acting Chairman
We may only have a passing reference and not a detailed discussion on the role of district justices.
It has already been ruled that it may be discussed on section 10.
Acting Chairman
We cannot discuss the role of district justices in detail. Only passing references are in order.
I do not intend going into great detail on it. Deputy O'Dea referred to slot-machine justice in the District Court and I referred to hit and miss justice. We realise that justice is dispensed very quickly. One can get two years in two minutes or less. The court deals with an enormous number of cases each day. It provides an excellent service to the community but there are great problems. One person is under tremendous pressure for a number of hours every day and cases pass through every two or three minutes. It is very difficult to keep a balance and dispense justice fairly in those circumstances. That would bring us to the selection process for district justices.
Acting Chairman
The Deputy is out of order in dealing with the selection of district justices.
I just mentioned it. I do not intend to deal with it. The Minister said that a barrister or solicitor with ten years experience is selected. It may be that he has specialised in a particular area that does not cover the wide range of law which comes before him.
Other people have asked for uniformity of sentencing. It is important that a justice judge every case on its merits and take all the circumstances into account. Many of the comments made about sentencing have been unfair because those people were not present when the case was being heard and they did not realise just why a justice acted in a certain way. I urge the Minister to review the selection process and to tell us more about how judges are appointed, who appoints them, what the criteria are, and so on. I know very little about this except that 90 per cent of all crime committed comes before the District Court. Society would like the Minister to look at this area again.
I do not wish to dwell on this at length but in the past this has caused great concern because of the tremendous pressures on the District Courts and, unfortunately, the spotlight has been unfairly turned on individuals. I do not want to do that because I do not approve of it but the system needs to be changed. It is our duty to correct it and to ensure that before we pass this section this matter will be examined. The Minister gave assurances about other measures that will be taken before certain sections come into force. Before this section takes the force of law, I would feel much happier if we got a promise that the system would be looked at.
Acting Chairman
I said passing references only could be made. There has been a long——
I will conclude on that. I have broken the section into two elements — the first is the existing sentencing policy, and I welcome the Minister's improvements, and the second is the appointment and the quality of judges. The control and monitoring of justices should be looked at.
Is the Minister satisfied with the quality of the justices in the District Courts? Is he satisfied with the criteria operating there?
(Limerick East): By way of passing reference I would like to say that the vast majority of district justices serving in the District Courts were appointed not by this administration but by previous administrations. Deputy Woods was a member of a Government who considered the appointment of many district justices and he should have a full knowledge of the criteria involved because he sat in Cabinet when they were being appointed.
In general, I am happy with the quality of district justices, although there are exceptions. In my limited experience I have found that it is very difficult to predict when one gets an application who will turn out to be excellent and who will turn out to be moderately good. It is very hard to list the qualities which will eventually make a good district justice. As I have already said, the District Courts deal with 90 per cent of all crime in an efficient and fair way. We should always remember that what they do is not conclusive. There is always the right of appeal.
I would like to ask a question about indictable offences which at present the DPP can opt to have heard summarily in the District Court where one would not expect a sentence of more than six to 12 months. If this section is passed as it stands, would the DPP be in a position to opt for the summary trial in the District Court where the offence might attract a sentence of up to two years?
(Limerick East): This does not change the role of the DPP. The accused for any indictable offence has the right to trial by jury. There is no change suggested or mooted in section 10.
I appreciate that, but my information is that in certain circumstances the DPP can opt for a particular offence to be heard in the District Court because the indictable offence will attract a sentence of 12 months or less. Will the situation change now where he could opt for a District Court hearing where an aggregate sentence of two years might be imposed?
(Limerick East): There is no change in the role of the DPP. In all indictable offences the accused would have the right to trial by jury. There are certain hybrid offences where a particular section of an Act could say that if it is tried summarily the penalty will be such-and-such and if the indictable offence is tried before a jury, the penalty will be such-and-such. We are not changing the discretion of the DPP. There will be no interference with that in this section.
Effectively, he can opt for a District Court where the consecutive sentences would be up to two years. The person concerned would be deprived of a trial by jury because of the option taken by the DPP.
(Limerick East): No, again we come back to what I said already. In any indictable offence the accused has the right to trial by jury and the district justice has the discretion of saying, on what is put before him, that it is not a minor offence and is outside his jurisdiction.
I welcome the Minister's statement about the quality and the criteria used in the appointment of district justices. We have expressed our reservations on this section. We support the section but we would ask the Minister to look at the points which have been raised between now and Report Stage. Question put and agreed to.
SECTION 11.
Acting Chairman
Amendment No. 28 was discussed with amendment No. 21.
(Limerick East): I move amendment No. 28:
In page 8, subsection (1), line 8, to delete "£800" and substitute "£1,000".
Amendment agreed to.
Question proposed: "That section 11, as amended, stand part of the Bill".
(Limerick East): At present, absconding while on bail is not an offence. Subsection (1), taking the proposed amendment into account, makes it an offence punishable on summary conviction by a fine of up to £1,000 or 12 months' imprisonment or both. Under existing law, section 33 of the Criminal Procedure Act, 1967, states that a person who is about to abscond while on bail may be arrested on a warrant issued on the basis of sworn information given on oath by a garda or the person who went surety for the bail. The offence is not committed, however, until the person fails to answer to his bail on the appointed day without reasonable excuse, which is defined under subsection (2).
It will be a matter for the person to show that he had a reasonable excuse for not appearing and for the court to determine whether in all the circumstances the excuse is a reasonable one — for instance hospitalisation. Subsection (2) provides that failure to surrender to bail will be treated under section 9 as an offence committed while on bail. Consequently, any sentence imposed for this offence will have to be consecutive on any previous sentence.
We welcome the creation of this new offence of failure to surrender to bail. The Association of Garda Sergeants and Inspectors have raised a question in relation to this section. They say that section 11 should be extended to include provision for the Garda to have power to arrest any person who fails to surrender to bail without their having a warrant, where they know that a bench warrant is in existence. At present a garda cannot arrest such a person unless he has in his possession a bench warrant. Would the Minister give us his views in relation to the proposal of the association and state his objection to allowing this? It seems fairly clear that the person will have committed an offence. Therefore, the question arises as to whether a bench warrant was needed when apprehending or bringing in the offender. The Minister said in his opening remarks that the offence does not occur until the person appears before the courts.
(Limerick East): Fails to appear.
I am sorry, until he fails to appear before the courts. Perhaps the Minister would give us his views in relation to this request.
(Limerick East): First, if somebody absconds while on bail and fails to appear before a court, a warrant would automatically issue for his arrest. The question being raised by the Association of Garda Sergeants and Inspectors is as to whether this warrant should have to be in the hands or in the possession of the arresting officer.
Yes.
(Limerick East): The point that they are making involves a complicated issue. It probably is not necessary, but I shall look into the matter between now and Report Stage.
I heard by chance on the radio gardaí going to collect somebody and having to go back to collect the bench warrant. They may find it more convenient to arrest people if given that power. It applies only in very limited circumstances and might seem reasonable.
Very briefly, I welcome this section and am particularly glad that subsection (2) has been inserted. It maintains that it is a defence to show that a person had reasonable excuse for not appearing before a court. This adds the necessary balance to the section. Subsection (3) is also an important element which would allow cause for consecutive sentencing. Generally speaking, the section is acceptable as it stands.
I suppose it is right to put on the record that I welcome some part of this Bill and make the point that this section is worth having. It possibly might have been brought in on its own rather than buried in this Bill. It is only reasonable that persons who have been granted bail by a court should be obliged to turn up on the date specified and that if they do not they are guilty of an offence. I welcome subsection (2) which allows for all reasonable excuses.
(Limerick East): There is one comment which I should like to make on a point made by Deputy Woods. The problem of the bench warrant not being in the hands of the arresting garda would apply to all situations where a bench warrant was issued for somebody's arrest. It would be difficult to deal with this problem in the Bill in isolation without looking into the general position. However, I shall look at it both in the generality and in relation to the provision in the Bill.
It is only in this specific situation that I was thinking of it.
(Limerick East): I should also like to say that this is a great occasion for the country when all parties of the House are agreed on something.
Question put and agreed to.
NEW SECTION.
Amendment No. 29. New section. The acceptance of this amendment involves the deletion of section 12 of the Bill.
On a point of order, section 12 of the Bill is that which deals with taking of vehicles without authority. The Minister has already put down an amendment proposing that that section be deleted. What is the position in relation to the debate at this stage? If amendment No. 29 is discussed and included, its acceptance would involve the deletion of section 12. Does that mean, in effect, that we must discuss section 12 as it stands at the same time as discussing the proposed amendment?
The position is that your amendment can be taken, Deputy Woods, separate and distinct from the section.
When we have taken that amendment, are we entitled to discuss the section which the Minister is proposing to delete?
It all depends on what happens to this amendment. In your amendment you propose to insert a new section. If that is carried, then a new section is inserted and that is that. If your amendment is defeated, then we shall put the section and it may be discussed.
As a matter of interest, in the event of the amendment which——
(Limerick East): On a point of order——
I am on a point of order and would like to complete it. If the Minister were to accept the amendment which we are proposing, that would mean that we could not discuss this section at all.
No, because you would already have discussed it.
Even though it dealt with drugs as against vehicles? Does it mean that in that event we would need to discuss the section which we are replacing at the same time as discussing the amendment which replaces it?
That can be done, of course.
That seems to be the only option.
It would be difficult to avoid doing that.
That is the point. I can see that it would be more orderly to do that.
The Minister, on a point of order.
(Limerick East): I was hoping that section 12 would be deleted. Deputy Woods' amendment No. 29 has nothing whatever to do with section 12. Would it be more appropriate if we deleted section 12 now and then let Deputy Woods carry on with regard to his amendment?
That is not the way it works.
We shall have to deal with Deputy Woods' amendment first. It is before section 12. It deals with a separate issue, the misuse of drugs.
I move amendment No. 29:
In page 8, before section 12, to insert the following new section:
"12.—Section 29 of the Criminal Procedure Act, 1967, is amended by the addition of the following subparagraph (g) to subsection (1) of the said section—
‘(g) an offence under section 15, of the Misuse of Drugs Act, 1977, and an offence of conspiring or attempting to commit any such offence under the said Act'.".
The reason we put the amendment in here is that the Minister had already declared that he was deleting section 12. This relates to the drugs situation. Section 29 of the Criminal Procedure Act, 1967 states:
(1) This section applies to each of the following offences—
(a) treason,
(b) an offence under section 2 or 3 of the Treason Act, 1939,
(c) an offence under section 6, 7 or 8 under the Offences Against the State Act, 1939
(d) a grave breach such as is referred to in section 3 (1) (i) of the Geneva Conventions Act, 1962,
(e) an offence under section 9 of the Official Secrets Act, 1963, or an offence under Part II of that Act committed in a manner prejudicial to the safety or preservation of the State,
(f) murder, attempt to murder, conspiracy to murder or piracy, including an accessory before or after the fact.
(2) A person charged with an offence to which this section applies shall not be admitted to bail except by order of the High Court.
We are trying in this amendment to include an offence under section 15 of the Misuse of Drugs Act, 1977, which is basically the offence of trafficking and dealing in drugs and where bail would apply to such offences it would have to be granted by the High Court. It is to put a restriction on bail. We have had instances where bail was applied at the District Court level. We believe in the case of people who are trafficking and dealing in drugs, that these should be classed in the same way as the items mentioned here like murder and certain other offences, attempt to murder, conspiracy to murder. This is a very serious offence and consequently the High Court should give the decision in relation to bail. In many respects this relates to what we have been discussing previously: the circumstances in which people can get out on bail. We have had our list of conditions which can apply to bail and the various circumstances under which bail can be granted. It seems clear to me that bail should not be granted easily in such cases and that the question of bail should in all those cases be considered very seriously and at a high level. That is the reason we are proposing that such offences are brought under section 29 of the Criminal Procedures Act, 1967. We believe that would be a very beneficial step.
(Limerick East): The idea of the amendment is to provide that a person charged with drug pushing under section 15 of the Misuse of Drugs Act, 1977, could not get bail except by order of the High Court. That is the situation at present with offences like treason, murder, attempted murder, piracy and certain offences under the Offences Against the State Act as well as other specified offences. I would like to have time to think about this. When we talk about a drug pusher we think in terms of a kind of godfather figures who are victimising the young population and making an enormous amount of money out of it. A number of situations can arise where the victim is also victimising other people. There is not a clear cut division between those who use drugs and those who traffic in them. Very frequently a drug addict is put in a situation where, having been victimised by the traders in drugs, he is forced by his addictive habit to push drugs and consequently victimises others.
There is the whole question of the idea of somebody who is a victim being held in custody and not given bail. I would like to approach the issue which arises by asking a couple of questions about it. If a person is smoking cannabis which he has acquired and is not a pusher but, at a party say, decides to give a cannabis cigarette to his friends, is that person a pusher? Since it is a rather expensive commodity, if a friend asks for a smoke and instead of giving the particular drug immediately the person who has the drug gives it and says that it cost him £2 and he wants that money from the person, does that constitute pushing? If a friend or an acquaintance asks a person for drugs which he has in his possession — I am thinking of something like cannabis — and the person with the drugs has acquired them for a certain amount of money and he decides he will make a profit on them and says to the other person that he got it for £5 but that person will have to give him £6, £7, £8 or £10, is that pushing?
We want to be very clear about what we are doing. The offence of pushing can within its ambit, contain a whole series of different circumstances, some of which would be very serious. I am fully in agreement with the Deputy that the person trafficking in drugs in a major way could be refused bail along the lines he suggests but there are a lot of other examples where people could find themselves deprived of bail in situations where subsequently they might not get a prison sentence.
I would like more time to think about this and I would like to consult further with the Attorney General on the matter. What the Deputy is suggesting could be very wide-ranging indeed, and in his desire to get at the target we all desire to get at he may be bringing within the ambit of non-granting of bail except by order of the High Court people he may not have intended to bring within its ambit at all.
I thought I was listening to a different Minister for a minute. I consider that is a very mature approach. I visited the Coolmine Therapeutic Centre in my constituency yesterday and the phrase used by the person in charge was that "every addict is a pusher". Addicts buy a quantity of drugs, split it in half and sell half to another person. This gives them enough money for the next shot they need. I can see the dangers in the section and I can see the desire for it. We should examine it very carefully.
I know an instance where four or five people smoked cannabis among themselves. They assigned one person to buy it and they split it up and paid the person who bought it. The Garda picked up the group and charged the man who bought it for the rest of them as a pusher and he was sentenced to ten years. We are really trying to get the pushers. This needs to be very carefully thought about. I subscribe to the way in which the Minister has responded to this section. We should think about it a little more before Report Stage. Something must be done in the area of drugs. While we are putting this legislation through the Dáil it would be appropriate if we could find a way to tackle and really hit hard the people who are responsible for misery and death. I would like to consider it from different angles. I appreciate and accept the Minister's response.
I welcome the intention behind the amendment. We all want to eliminate the drug pushers, the major people in this vicious business. The Minister was right to suggest that it may be a bit too wide-ranging. I am just marking the cards for Deputy Mitchell who may be listening on the monitor.
Part of the problem arises from the original definition in the Misuse of Drugs Act, 1977. When we try to make an amendment we have to refer back to the section in the Act which deals with this matter. We want to make clear to the people who are trafficking in drugs what the intention is. We must be careful not to be ambivalent about people who hand drugs around to one another. Something like 80 per cent of those who were introduced to drugs got them from a friend. A friend passing drugs to a friend is a major part of the whole system. That may be why in the original definition they had difficulty in separating the two elements.
The Minister understands what I am trying to get at. We want to get at the godfathers, the traffickers and the major pushers who are not users. We are not talking about bail being refused. We are talking about the granting of bail by the High Court. The High Court will have to give a decision. The High Court can take all these factors into account. In the long run the only way to deal with it may be to leave it to the discretion of the High Court.
The new Misuse of Drugs Bill which has just been circulated does not help us on this section so far as I can see from a preliminary glance. It does not give any redefinition of section 15. We want to ensure that those involved in trading in drugs will not get bail easily. This is a very serious offence. We discussed the criteria earlier. While it may have been somewhat trying for the Minister and the Ceann Comhairle, that discussion was beneficial to the House.
The criteria cover the nature of the accusation, in other words, the seriousness of the charge. A charge of trafficking in drugs is a most serious charge. It is a form of subversion of our young people. There is also the nature of the evidence in support of the charge, which is often quite substantial. Then there is the likely sentence to be imposed on conviction. The sentence can be up to 14 years, which is a very substantial possible sentence.
There is also the fact that a person can be caught red-handed. These people should not be free to continue trading in drugs while on bail and to put away funds and make arrangements. The High Court can consider these matters very fully and give a judgment taking all these factors into consideration. We do not want people who are well known in the drugs area to get out on bail and be free to abscond and leave the country during the court hearing as, I think, happened in one instance. This is of great importance. It is very urgent. We must give our attention to it. I would be disappointed if we went through this Bill without addressing that problem. I welcome the fact that the Minister will consider it between now and Report Stage and attempt to define more specifically the nature of the offence which is defined in section 15 of the Misuse of Drugs Act.
Progress reported; Committee to sit again.