I move: "That the Bill be now read a Second Time."
This Bill attempts to deal with some of the major problems which exist with the content and administration of our system of criminal law. According to The Irish Times, almost three years ago on 8 November 1991 the then Minister for Justice indicated that he would soon circulate details of a Bill to reform the law on insanity. This was in the context of the Gallagher and Ellis cases about which there was widespread public concern. These cases had caught the public imagination and focused yet again on the inadequacies of our criminal law relating to the defence of insanity. At that time there was a widespread perception — unfortunately it had substance — that it was possible for somebody to be found guilty but insane, which is an acquittal, and to be released shortly afterwards because they are no longer insane within the meaning of the law.
The most disturbing aspect of all this is that even though the Minister for Justice indicated in that context that he would shortly circulate a Bill, nothing has emerged from the Department of Justice in the intervening three years. This perhaps has more to do with the fact that public concern about the issue abated once the court cases which arose out of the Gallagher and Ellis cases disappeared from the headlines. Another disturbing aspect is not that it has taken the bones of three years for anything to be done on the floor of this House about this issue but that it is approximately 14 years since an interdepartmental committee reported to the Government of the day on this issue and prepared draft legislation. That committee was made up of very senior people, including the present Director of Public Prosecutions, Mr. Justice Henchy who was Chairman and a member of the European Commission on Human Rights. That committee put a lot of effort into proposing amendments to our law relating to criminal insanity, yet nothing was done.
Recent events, which I do not want to go into but which have been notorious, underline yet again the necessity for reform of the law in this area. People are not happy that the present law is workable or just and it would be terrible if some of the more recent notorious crimes fell to be dealt with yet again under antiquated legislation which has very little to do with reality and much to do with totally outdated views of the criminal law and insanity. Without attempting to engage in political point scoring, the delay is unforgivable as failure to legislate in this area is now of such long standing that virtually every party in this House has been tainted with the blame. It nonetheless remains imperative that we should act quickly and decisively in this area. The substance of the Henchy committee's report deserves to be converted from a draft Bill into legislation even after 14 years.
This Bill incorporates and updates the content of the draft Bill prepared by the Henchy committee in relation to insanity and the criminal law. It is a scandal that we have had to wait for so long for legislative action on this matter. It is important to note that Part III of the Bill, which completely restates the law relating to criminal insanity, contains new measures as to how people who have been found not guilty by reason of mental disorder are to be dealt with afterwards. The Bill also contains a new measure which would allow juries in murder cases and what used to be called capital murder cases and treason cases, which are very rare, to bring in a verdict of guilty but to add to it a finding of diminished responsibility in which case the mandatory penalty of life imprisonment in the case of murder could be dealt with on a different basis by the court which would have the power to impose a lesser sentence by virtue of diminished responsibility.
All those principles are accepted and command widespread support throughout the community. The fact that our criminal law dealing with people who are suffering from mental affliction of one kind or another is so antiquated and that the major measure in this area is still called the Trial of Lunatics Act, 1883, shows conclusively that this State has never faced up to the issue of insanity in the criminal law and what should be done about it. I think the Minister will agree it is time we faced up to this issue and legislated in this area.
The second area with which the Bill is concerned relates to bail. Because of the attitude taken by the Supreme Court in the O'Callaghan case, which has recently been confirmed, it is not possible within our Constitution to deny a person bail on the basis of a suspicion that he will commit a further offence or offences while on bail and, without a referendum, there is no scope for preventive detention of that kind. However, the Progressive Democrats have been making the point for some time now that the only obligation of a bailsman at present is to ensure that the accused person turns up for his trial. There is a long standing legal procedure which enables courts to bind people over to keep the peace and be on good behaviour on the application of the prosecutor. It seems to the Progressive Democrats, and many people who have considered what it is possible to do in relation to the abuse of bail without a constitutional referendum, that the best course now would be to allow courts to make bailsmen sureties for the good behaviour of the person admitted to bail pending trial. The effect of such a change would be to allow for the forfeiture of bail where a person committed a serious offence — in this Bill an indictable offence — while awaiting trial on another charge. In that context, most people find it offensive that bail can be abused by persons accused of crime who are relying on the low rate of detection in order to commit a multiplicity of crimes while they know that they are going to be convicted and sent to jail once the inordinately long processes of the criminal law bring them to trial and sentence.
In considering changes to the law of bail a balance must be struck. First, the presumption of innocence must be given legal weight. We simply cannot have a system under which people begin serving their sentences as a matter of course, when arrested and charged with an offence. In an ideal world trials would be speedy and nobody would be in prison pending trial unless he or she could not be relied on to turn up for trial or was likely to interfere with witnesses. However, we do not live in an ideal world. As the rate of detection of offences is quite low habitual burglars and drug addits find it remunerative to engage in further offences while on bail, hoping that those further offences will not be detected. Admittedly, in 1984 the Criminal Justice Act provided that there should be consecutive sentences in respect of convictions for offences committed while on bail. That did have some effect on the abuse of bail but recent experience tends to suggest that the provisions of the 1984 Act in relation to consecutive sentences were not a sufficient deterrent.
There are many people being admitted on bail whom everybody knows — the Garda in court, the victims of their crime and the judge who is dealing with them — intend to abuse that bail in order to commit further offences and the person who goes bail for them, the bailsman, only stands to lose his bail if they fail to turn up for trial. Therefore, the proposal in this Bil is to render the bailsman liable to forfeit his bail where the accused who is admitted on bail abuses his liberty to commit further indictable offences. The effect of this would be substantial because people who were habitual offenders would find it difficult to obtain surety for their good behaviour and would find themselves facing pressure from their bailsman not to commit further crime or, alternatively, experience difficulty in getting a bailsman who would risk a substantial amount of money in order to set them at liberty if such bailsman reasonably suspected that all they would do would be to commit further offences.
Part IV of the Bill deals with pardons, remissions and the temporary release of prisoners. Again, I am not endeavouring to score any party political points. I know there has been recent controversy in relation to this. The Minister may feel this is aimed at her; it is not. Section 49 is intended to give statutory expression to the concept of free pardon. When somebody is found, in retrospect, to be the victim of a miscarriage of justice, it is now customary to grant them a pardon. Unfortunately, as a recent debate in this House showed, in the context of the Criminal Procedure Act, the exact effect of a pardon has never been teased out. The Minister of State at the Department of Justice, Deputy O'Dea, was not in a position to tell this House what exactly is the effect of a pardon; whether the person concerned, having been given a free pardon, stands to be regarded in Irish law as never having committed the offence in question. It seems to me that Irish law should be brought into line with other common law jurisdictions in relation to the effect of a pardon, a person who receives a free pardon should be able to state, as a matter of law, that the effect of the pardon is to put him in a position of being regarded as never having been convicted.
Another feature of Part IV of the Bill is the proposal for a new requirement of transparency in relation to remissions and commutations. Under the Criminal Justice Act, 1951, the Minister for Justice and the Government are given power to remit and commute sentences. They are not obliged to record the fact that this has been done nor is the public entitled to know whether it has been done. That is a very serious matter because it naturally gives rise to disquiet among members of the Judiciary, members of the Garda Síochána and members of the public that punishment can be remitted in a secret process, that the wrongdoer effectively is relieved of the penalty imposed by the system of justice in circumstances about which nobody knows. Again, without scoring any political points, it seems to me that the fact that a conviction has taken place and a sentence has been imposed, as a matter of constitutional law, is a matter of public record. Why then is its commutation or remission a secret?
Curiously, there is precedent for the concept of publishing remission of penalties. For example, in the Criminal Justice Act, 1951, special provision was made for the publication of remissions dealing with persons who were disqualified from driving. Section 23 (5) of the Criminal Justice Act, 1951, provided that, where a person disqualified from holding a driving licence was the subject matter of a Government remission, that fact should be published in Iris Oifigiúil but that was changed in 1961 at which stage the power of the Minister and the Government to remit disqualifications of licences was completely removed. The motivation for that particular requirement of publicity is difficult to work out at this stage but, presumably, it was to make it more obvious, more transparent, that when somebody had their driving licence restored to them by ministerial act, the public would be entitled to know about it and, therefore, the process would not be secret but rather one in which the public would have confidence. The only circumstance now in which a licence disqualification can be remitted is when the President, on the advice of the Government, exercises her powers under the Constitution. I presume that that rarely, if ever, happened.
The Progressive Democrats believe that, if justice is required to be administered in public, remissions and commutations of penalties should be a matter of public record. I have no difficulty with the idea of the Executive remitting penalties. I do not share the view that there is something inherently wrong in a Minister remitting a penalty. I believe in many cases it may be necessary, but I do believe it should be done by a process about which everybody knows. Since everybody can read in the evening papers if somebody is meted out a jail sentence, fined, disqualified from driving or whatever, why should the case be cancelled secretly? What is the logic of that? If the Executive is surrendering the benefit of a punishment I believe it should be done by a public process. In addition, the proposal in this Bill — where it is proposed to remit or commute a penalty the court in question must be informed — is not merely a courtesy but also underlines that it is a public matter.
Second, the suggestion that Iris Oifigiúil should contain a notice or a schedule of remissions made by the Minister is a good thing. I can accept that there are very limited circumstances in which it would be appropriate to commute a penalty privately — I cannot imagine all of them but I can imagine some cases where it might be in the interests of justice that the process should be confidential. The Bill makes such provision by allowing the Minister to apply to the court for liberty to dispense with the obligation to notify the public through Iris Oifigiúil, where that is consistent with the common good.
I come now to the question of temporary release. In relation to temporary release orders, there is widespread anxiety that the prison system is being conducted on the basis of a revolving door policy. Many people believe that the prison system does not have adequate capacity to deal with the volume of persons sentenced to imprisonment by our courts. It may be that too many people are being sentenced to jail; it may be that that is something we shall have to face up to, but there is also a widespread belief that the State is responding to overcrowding in prisons by releasing people on an arbitrary basis before they have completed their sentences. That is done under the terms of the Criminal Justice Act, 1960. Temporary release orders are made in respect of people in circumstances in which it is not clear why temporary release orders are being made.
There is no transparency in relation to this practice. Clearly there are many reasons a temporary release order could be made. For example, somebody might be allowed out for a week on compassionate grounds; somebody might have the remainder of their sentence effectively made the subject of a full temporary release order and be set at liberty in that way. It seems to me that there is nothing wrong with the principle of requiring that every temporary release order made should be put into a register, save in exceptional circumstances where that would endanger the well being of the victim or the person being released and in those cases the public should know that somebody who was sentenced to prison is now at liberty. That seems to be basic fairness and nothing more. The effect of such a provision would be that the public would know whether people were being temporarily released from prison months and years in advance of their due date of release under the ordinary provisions of the law.
Sadly, it has become apparent in recent times that very serious crimes are being committed by people out of jail on temporary release. There must be accountability and transparency in the administration of the temporary release regime under the provisions of the Criminal Justice Act, 1960. The Bill proposes to create such transparency. This should not be seen as a slight on those involved in the administration of the prison system or those in the Department of Justice who oversee the scheme. The public simply have a right to know what are the effects of the operation of the 1960 Act in respect of the punishment of offenders. All efforts to elicit such information in the Dáil in the past have been wholly unsuccessful.
For that reason the Bill also proposes that not only should there be a register but that the Minister for Justice should lay before each House of the Oireachtas each year a report showing the nature and extent of remissions and commutations made by the Government during the previous year and the number of temporary release orders made under the Criminal Justice Act, 1960. The purpose of that is simply to let the public know exactly what kind of regime, in practice, operates in our prisons. It is probably embarrassing in some respects to disclose that, on anecdotal evidence alone, many people are allowed out on temporary release well in advance of their due date of release. It is a fact, and one we will have to face up to, that many people are released from prison simply because a batch of remand prisoners is sent from the courts to Mountjoy and room has to be made for them. That is how the system is operating and there is no point codding ourselves that it is not happening. There is a knock on the cell door and the prisoners are told they are being released temporarily. They are allowed out on licence simply to make room in the cell for somebody else who has just been convicted or who has been remanded in custody pending trial. That is an unfortunate consequence of the overcrowding in our jails and the absence of sufficient room to accommodate those who are sentenced. It is a process which the people are entitled to know is being conducted in a proper way. I am not suggesting any impropriety in the manner in which it is being done but I suggest there is an active policy of concealment of the extent of temporary release orders because the people would be gravely disquieted if they knew the truth.
Part IV deals with proposed changes in criminal procedure. In regard to the deposition procedure in the District Court the Bill proposes major changes. Nobody can deny that the present system is ridiculously Dickensian. It is open to an accused person or a prosecutor under the Criminal Procedure Act, 1967, to bring anybody before the District Court, to have them examined on oath in relation to the offence and to have their evidence taken down in longhand by the District Court clerk and made available for signature. I have to tell the Minister that this is being abused right, left and centre to delay the prosecution of serious crimes. The fact is that the 1967 Act gives an absolute right to depositions. Persons accused of very serious offences — some of them notoriously guilty — have succeeded in delaying their trials for months and even years by prolonged and entirely unwarranted use of the deposition procedure.
In one case a significant drug dealer was found in possession of considerable quantities of heroin and was actually ladling heroin from one container into another when the Drug Squad raided the premises where he was carrying out this operation. He had a spoon in his hand, a weighing scales and a mountain of heroin on one side of the table and sachets into which he was dividing it on another. This was a major discovery by the Garda. That individual used the deposition procedure to delay his first trial to such an extent that the District Judge, before whom the case was being heard, became so frustrated that he stopped the process and sent him forward for trial half way through the deposition procedure. The Director of Public Prosecutions had to apply to the High Court to quash the district judge's order and the process recommenced in the District Court. The upshot was that the District Judge lost patience a second time and made a second invalid order and the drug dealer in question was never brought to justice. That shows just how bad the abuse can be and that is not the only case. There are ongoing cases where people are using the deposition procedure to frustrate and to delay their trial.
How can we possibly stand over a process which takes hours where a District Court clerk, not even a stenographer, has to take down evidence in long hand? It would take a long time to complete the proceedings of this House if every word had to be taken down in longhand and signed by a Deputy before he sat down, yet that is what happens in the District Court to avoid the consequences of the judicial system so far as major criminals and their exploits are concerned. The Garda and the Minister presumably know about this abuse but the public, unfortunately, are unaware of its extent or its consequences.
Part V provides for a system of return for trial in serious cases without preliminary examination. There are cases where it would be appropriate to allow the Director of Public Prosecutions or the Attorney General to send for trial on indictment a person without going through the process of preliminary examination. These cases, which would be exceptional, should be provided for in our law. They are provided for in the law of England and there is good reason in exceptional cases the Irish State should be able to have somebody sent forward for trial on indictment without the lengthy procedures involved in the District Court.
Under the provisions of section 55 the Bill provides for a new proposal in Irish law to make people suspected of serious offences amenable to formal examination before a judge of the District Court. At present, persons convicted of criminal offences can be arrested under section 4 of the Criminal Justice Act, 1984, and detained and interrogated in private by the Garda. Frequently they refuse to answer questions in a Garda station and in other cases the Garda claim they have made verbal admissions which the arrested persons deny. While the right to remain silent in a Garda station is an important one, it does not follow that a person suspected of serious offences, when examined before a judge of the District Court in respect of their suspected involvement, should be entitled to remain silent with no prejudice to their position subsequently.
Section 55 proposes to create a new jurisdiction of formal examination of suspected persons with a view to creating a transcript of the questions and answers put to them for later use in a prosecution. Thus, a prosecutor, for example the Fraud Squad, would be able to ask a businessman what had become of, say, the £50,000 he was given. If he refuses to answer on the grounds that he might incriminate himself, a jury can find out that, at an early stage in the criminal investigation, he was given an opportunity before a judge of the District Court to give an explanation and that he failed to do so. In those circumstances, a jury can draw an inference from his failure to answer the questions put to him in a formal venue.
This section does not take away the right to silence, that cannot be done in any event. The right to silence is a constitutional right. Nobody can be forced to incriminate themselves on pain of committing a criminal offence, nobody can be obliged to condemn himself from his own mouth. That is a principle of constitutional law which is recognised under the Irish Constitution and under the European Convention on Human Rights but — and this is a very important point because some people tend to confuse the right to silence with the effects of remaining silent — there is no accepted principle of international law that a failure by a person to give an explanation when required to do so can amount to nothing in his or her case, that in those circumstances no adverse inference can be drawn from silence. In some sense, the right to silence is not merely a right not to incriminate yourself but a right to have nobody draw any inference from the fact that you have remained silent. There is no principle of natural law, international law or constitutional law which makes people's silence something of absolutely no significance. No punishment would attach to any person for remaining silent but if a jury or a court of trial is presented with a transcript on examination before a judge of a person suspected of a criminal offence, the jury will be entitled to know what the response of the accused person was to the questions put to him and would be entitled to draw inferences from any response given or from a failure to respond to the questions put to them before the District Judge.
The provisions of section 56 were originally devised by the English Criminal Law Revision Committee in a report in the late 1970s and were incorporated in section 16 of the Criminal Justice Bill, 1983, which became the Criminal Justice Act, 1984 but, as a result of public controversy, they were removed on the basis that they went too far. I shared the concern at that time that the qualification of the right to silence, implicit in section 56, might be unfair but in the intervening years I have come to the conclusion that it is wrong that someone can come up with an explanation for his behaviour at a trial on indictment which he has never given before to anyone in circumstances where it would be perfectly reasonable to expect him to give that explanation. As the law stands, he cannot even be asked why he did not give that explanation before the case came to court.
I have personal experience of this in criminal cases. On many occasions when I acted for the prosecution I was permitted by the trial judge to ask the accused why, if the explanation he was giving was correct, he had not saved himself the bother of a trial on indictment and told somebody months or years before that he had a perfectly rational explanation for his activities or had some exculpatory facts which supported his innocence. I discovered recently to my horror — one learns something every day — that I should not have been allowed to ask that question, that it is not proper for the prosecution to ask an accused person why he never mentioned these facts to the police and for the judge to say to the jury that it is an extraordinary fact that Mr. McDowell accused on indictment of a serious offence is now for the first time mentioning something. The judge cannot say to the jury: "Do you not think that this is suspicious? Do you not think, if this is true, he would have mentioned it months or years ago?" It is an extraordinary piece of Alice In Wonderland law which leaves that particular provision in place.
If the existing law was strictly enforced many questions which tend to impugn an explanation given in court for the first time would be disallowed. If neither the prosecution nor the judge can ask questions or make comments in a trial on indictment dealing with the failure of an accused to give any explanation until the day of his trial, the law is artifically stacked in favour of the accused. It is not a necessary adjunct of the right not to incriminate oneself that one can proceed to trial and offer an explanation for the first time without any adverse criticism or cross-examination as to why the explanation was never offered before. On balance that is a sensible provision and the law should be changed.
Section 57 of the Bill is also based on a proposal of the English Criminal Law Revision Committee, many of whose proposals were incorporated in the 1984 Act. It proposes that at the end of the prosecutions's case, the court can, at the instance of the prosecution, call on the accused to give evidence and that a jury can draw an inference from the failure of the accused to give evidence to corroborate other evidence which suggests that the accused is guilty.
In the 19th century an accused was not entitled to give evidence. Now accused people have to give notice of alibis so that they can be checked and they are not entitled to give unsworn statements to juries without risking cross-examination. If the State produces a significant volume of evidence in a criminal case in which an accused is involved, it is fair and proper, that the court of trial can call on the accused to give evidence and can indicate to him that if he does not do so, the jury may draw an adverse inference and may use the fact that he failed to give evidence to corroborate the case against him. I do not think this would give rise to any risk of a miscarriage of justice.
At present judges are entitled to comment on the failure of an accused to give evidence but for some reason the prosecution is not, which is ridiculous. This means that the people who are intent on securing a conviction, the prosecution, are not entitled to make a good point whereas the judge, who is supposed to be impartial, is if he feels so moved. The English Criminal Law Revision Committee was correct in proposing a change of this kind in the law and that it would not lead to injustice. I stress that the right to silence does not entail as an adjunct a right to have no adverse inference drawn from one's silence and it is a mistake for extreme civil libertarians to believe that it does.
Section 58 proposes to close a loophole in the law. At present persons remanded in custody are not amenable, except for fingerprinting and perhaps photographing, to be examined for the purpose of forensic tests by members of the Garda Síochána. In recent cases this has been of some significance. If a person is remanded in custody on one charge and it transpires that the police are seeking that person in relation to another matter and they might require a sample of hair to make a comparison or a blood sample for DNA testing, say, where the person is suspected of rape — this has happened in a number of cases — the Garda cannot go to that person because that person is effectively granted immunity from further investigation while in custody and cannot be arrested. The current provisions for taking samples from people are predicated on an arrest being made and once a person is in custody awaiting trial he cannot be lawfully arrested. On some occasion — it may be that the occasion has already arisen and I do not propose to be more controversial than that — it will be a significant impediment to the proper investigation of a serious offence and the consequence will be major embarrassment if this loophole is not closed.
The final Part of the Bill deals with infanticide. The present law on infanticide is set out in the 1949 Infanticide Act. As the Minister will be aware, that Act is extraordinary because it provides that where a woman is being charged with murder or manslaughter of her child and the child is less than one year old she can be acquitted of murder or manslaughter and found guilty by the jury of infanticide if they find that the balance of her mind was affected by giving birth to the child or — and this is the most amazing aspect — as a consequence of lactation. I do not know what notion underlay that statute — I presume it was based on English precedent — but I do not believe there is any psychiatric or medical evidence to suggest that that is a reasonable basis on which to find that the balance of someone's mind was affected.
Part VI of the Bill would reform our law in accordance with a well worked out precedent of the English Criminal Law Revision Committee and would suggest that in those circumstances a woman cannot be convicted of murder or manslaughter if the balance of her mind was affected by reason of giving birth or the consequences of giving birth. I believe — and you do not have to be a woman to believe this — that the idea that a woman could be found guilty of infanticide under the 1949 Act and that a jury could come to the view that the balance of her mind was affected by giving birth and that as a consequence she killed her own child and that it was not murder and is liable to a term of up to life imprisonment is horrific. This Bill proposes instead a maximum sentence of five years. I would go so far as to say that in the great majority of such cases where a woman engages in the destruction of her own child, either through neglect or a positive act because the balance of her mind is upset, the public would not regard it as appropriate to impose a custodial sentence. This Bill provides that the procedures to be applied in the case of those found guilty of offences by reason of dimnished responsibility should also be available, including release on conditions set by the court.
The Henchy committee's report proposed to leave the Infanticide Act largely intact, but in view of changing social attitudes and changes in psychiatry it would be indefensible to leave that Act in place. That would be unacceptable in terms of the modern views of the causes of this most unfortunate behaviour on the part of some women in relation to their children. It is not acceptable to leave such draconian penalties in place for women who, because of an imbalance in their minds, are guilty of the offence of infanticide. The proposals in this Bill are humane, sensible and caring and reflect a modern view of the matter.
For all those reasons I commend the Bill to the House. I apologise for the short notice given to the Minister, but that was due to other distractions to which I will not refer.
