Private Members' Business. - Criminal Justice Bill, 1994: Second Stage (Resumed).

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

(Carlow-Kilkenny): Cuireann sé ionadh orm i gcomhnaí nuair a chloisim Airí ag rá anseo sa Dáil nach féidir leo glacadh le Bille ón bhFreasúra cé go molann siad na Billí sin go hárd uaireannta. Caithfidh mé a rá, áfach, gur ghlac an tAire Dlí agus Cirt le Bille roimhe seo i ndáiríre.

Cuireann sé ionadh níos mó orm nuair a deireann siad cé go bhfuil an Bille go maith agus mar sin, go bhfuil an iomad lochtanna ann. Níl fhios agam cén fáth nach ndeántar leasuithe ar Bhillí a thagann isteach anseo mar de réir dealraimh tá na dréachtóirí an-ghnóthach agus níl am acu teacht suas le Bille nua.

Molaim an Páirtí Daonlathach a chuir an Bille seo os ár gcomhair agus tá brón orm nach mbeimíd ag caint faoi tar éis na seachtaine seo chugainn. B'fhéidir, áfach, go dtiocfaidh an Rialtas suas le Bille dá gcuid féin sar i bhfad.

In expressing surprise that it is normal for the Government not to accept Bills presented by the Opposition, I appreciate the Minister for Justice accepted a Bill presented by my party on a previous occasion. I hope that badly needed legislation for dealing with this matter will be enacted before long. People have been saying for years that it is ridiculous that people can continue to commit offences while on bail. We can only talk about this issue for a certain length of time; the Government should tackle this problem. The Progressive Democrats have done us a service by highlighting it. It is a pity the Minister has decided not to accept the Bill and amend it as required. If a constitutional change is required — last evening the Minister thought that there might be a way around this — let us make it in order to prevent innocent people from being attacked and robbed by persons who should not be at large.

I welcome the proposal in section 3 that the person providing bail should be a surety for the good behaviour of the accused. Such a provision would make people think twice before deciding to provide bail for someone who should not be at large. Section 4 provides for the confiscation of bail where a crime is committed by an accused while on bail. I welcome these provisions, although I am aware that the Bill will not be put into effect as it is not being accepted. People should think seriously before deciding to provide bail and if an accused commits a crime while on bail the person who provides bail should have to accept the consequences. While this may be severe, it would also make things very simple.

Long before I became a Member of this House I always believed that it was a contradiction to talk about someone being guilty but insane. I do not know how this has survived in law. It would be more logical to talk about a person being innocent but insane. If a person is not of sound mind I fail to see how they could commit a crime. It is a contradiction to state that they are guilty but insane. This is a paradox and it is something that has always amazed me.

Section 59, which deals with infanticide, states:

Where a woman by any act or omission causes the death of her child, being a child under the age of 12 months, but at the time of the act or omission the balance of her mind was disturbed by reason of the effect of giving birth to that child or circumstances consequent upon that birth, then notwithstanding that the circumstances were such that but for this section the offence would have amounted to murder or manslaughter, she shall be guilty of an offence of infanticide.

I have no difficulty with this provision. That is as it should be. Subsection (2) states however that a woman who is convicted on indictment of infanticide should be liable to be imprisoned for a term not exceeding five years or to be committed by the judge to a designated centre or to be released subject to such conditions as the judge may impose. That is another contradiction and if the Government decides to introduce legislation I would like to see this provision changed. I fail to see how a woman who is found not guilty of murder or manslaughter because the balance of her mind is disturbed should be sentenced to five years in jail for infanticide. If she is found not guilty of murder or manslaughter she should not be guilty of an offence which carries a term of imprisonment not exceeding five years, although I accept that other options are provided for. For example, she could be committed to a designated centre or released subject to such conditions the judge may impose. If the Government decides to introduce legislation I would like to see this provision changed as it does not make sense. If we accept the idea that a person who is insane cannot be found guilty, the same should hold for a mother found not guilty of murder or manslaughter.

Section 18 deals with a verdict of not guilty of mental disorder. I welcome this provision as it puts the horse before the cart, not the other way round as is the case at present whereby a person is found guilty but insane.

Reference was made last night to the right to silence. Most people seem to have come to the view that the right to silence makes an ass of the law. If an offence is committed in Carlow tonight and I refuse to tell the Garda that I was making a major speech in the Dáil rectifying the legal system it would be considered strange. I fail to understand why, if people fail to account for their movements, an inference cannot be drawn that they have something to hide. We should allow the Garda draw an inference of guilt where a person maintains their silence. If a person is not guilty they should answer the questions. While I accept that one has the right not to incriminate oneself, if a person looks into space and makes no effort to answer questions one should be able to draw an inference of guilt.

I welcome the Bill. It is regrettable it will not be accepted by the Government, but I hope the Government will shortly introduce a Bill based on these provisions.

I wish to share my time with Deputy Eoin Ryan.

Is that agreed? Agreed.

I acknowledge the substantial work put into the preparation of this Bill by Deputies O'Donnell and McDowell whose contribution is an excellent example of parliamentary democracy at its best. Rather than depending on facile point-scoring and criticism, the Deputies examined a number of aspects of our criminal law and put together what they consider to be corrective proposals. Their Bill deserves to receive a full and fair assessment from the House. In this regard the Minister's comprehensive and generous response to the Bill is welcome.

The first part of the proposed Bill deals with the legal regulations which provide the context for the granting of bail. I share the view that we must make every effort to minimise the abuse of this facility to the fullest possible extent. I recently issued a statement and spoke at length about concern's in the community in respect of our bail laws. Few people can argue with the overall principle of guarding both the rights and the dignity of an accused person. If we are to consider ourselves a civilised society, nothing less is acceptable. Similarly we should not be surprised when legal safeguards put in place to protect the rights of all individuals are abused; it would be naive to expect a uniform standard of honourable behaviour across all members of society. However, when the level of abuse of benign laws reaches an unacceptable level or when close examination suggests that legislation may be amended without infringing on the rights of law-abiding citizens, it is our duty to make every effort to improve the details of the relevant laws.

In general, I agree with the objectives of this Bill's proposed changes in relation to the conditions and levies imposed in the granting of bail. It is vital that the financial cost be extremely punitive in the case of abuse of bail. Similarly, any involvement in further crime while on bail must carry the gravest consequences both for the accused and the person providing bail.

It is vital however to recognise that simply specifying lower limits to the amount of bail set is only one component assisting the proper administration of our bail laws. The ultimate discretion lies with the court itself. This has to be the case since the impact of any level of bail is totally dependent on the financial well being of the accused and his or her family and friends. While a bail set at £5,000 may be totally out of reach of the typical working class person, such a sum is derisory in the case of a drug smuggler. Any attempt to adjust our laws without taking such realities into consideration would be inherently unfair and socially unjust.

We cannot ignore the fact that any changes to our laws regarding bail must not impinge on the constitutional rights of the individual. Therefore, it is only prudent that we await the report of the Law Reform Commission before moving to change our laws in the area of bail. It is clear from the Minister's speech that she is willing to upgarde these laws to the fullest possible degree even if the consequent changes involve an amendment to the Constitution.

The importance of focused research in the area of law enforcement and crime should be stressed. When examining the proposals in the current Bill, it would be extremely useful to Members of this House if research findings were made available on the extent and nature of abuse of our bail laws during a 12 month period. A number of relevant questions come to mind. For example, is the problem encountered throughout our court system or is there a higher rate of bail abuse in certain instances? Is the likelihood of bail abuse related to the accused's previous criminal record? Is the amount of the bail acting as a deterrent? Without such fundamental research findings, to a certain degree as legislators we are being forced to act on the basis of personal impressions and media priorities.

The proposed Bill considers at length the impact of possible mental illness in the prosecuting of criminal charges. I agree that we need to look critically at current legislation in this area. I welcome the fact that the Minister is closely co-operating with the Minister for Health in developing new proposals in this sensitive area. As the Minister stated, the Bill before us depends to a significant degree on the 1978 Henchy report of the Inter-departmental Committee on Mentally Ill Persons. It is important to note that the Minister is actively working on this issue and intends to introduce a Bill which will deal with criminal insanity in a comprehensive manner. Consequently, rather than dealing with the proposals before us today on a section by section basis, it would be more useful if we develop the debate regarding the key issues in this area.

There are three key elements to be considered. We must ensure that the allegation of mental disorder is established beyond reasonable doubt in each instance. Of course this can often be an extremely difficult task. When a person is charged with a serious crime, an opportunity exists to attempt to avail of provisions regarding criminal insanity. A number of people resort to such a strategy by adopting bizarre behavioural patterns. Proper assessment of such individuals should be a matter of primary concern. To be specific, the medical practitioners employed should be very well qualified. The task of accurately and fairly establishing the mental state of the accused is formidable. For example his or her state of mind both at the time of the alleged crime and at the time of the trial must be classified. If the crime was committed many months previously, or indeed years in some instances, the task becomes even more difficult and prone to error.

In our implementation of both existing and future legislation in this area I strongly urge that adequate attention be focused on the need for properly trained medical personnel in the administration of the system. In the routine clinical setting the psychiatrist often finds extreme difficulty in arriving at a clear cut diagnosis. Unlike many physical illnesses, mental illness rarely presents itself in an easily identifiable manner. Rather, the patient may show many and varying symptoms such as aggression, depression, guilt, anxiety and fear. Therefore, the courts must avail of the most skilled practitioners when assessing individuals alleged to suffer from substantial mental disorder.

Where the court is satisfied that the accused suffers from a significant mental illness it is vital that the case proceeds in an efficient manner on two different counts. The individual must be treated with care and compassion, and the most effective professional services should be made available to either stabilise or cure his or her problem. At the same time the prosecution of the case must be hampered to the least possible degree, since the objective in every criminal case must be to identify the guilty party or parties. Failure to do so undermines the victim of the crime and the legal system. Our laws must ensure that despite the accused person's mental illness, the case proceeds to a conclusion if at all possible.

I emphasise the need to protect the public from any person who is clinically judged to be a risk to society. It is not acceptable that such people should be reintroduced into their home communities in an accidental or random manner. When a person with dangerous anti-social tendencies is released, either because of innocence on the specific charge or on account of criminal insanity, a comprehensive treatment follow-up plan must be in place. Unfortunately, this is not always the case. As a result many needless and sometimes extremely serious crimes can be committed. As well as dealing with the need for punishing crime, we must make every effort to prevent it.

On the matter of criminal insanity, we must never forget that we are dealing with a human being, irrespective of their guilt or degree of illness. Can there be a more miserable state for a human being than to be afflicted by mental torment and to lose one's freedom? From the time a person is first apprehended to their ultimate release having served his or her sentence, it is vital that the corrective legal system never loses sight of the potential for reform and the dignity of the individual.

Like the Minister, I have reservations regarding the proposals in the area of pardons, remissions and temporary release of prisoners. I do not agree with the concept of a register for any group of convicted prisoners. The sole responsibility for allocating punishment rests with the courts. Once sentence has been passed and a convicted person's freedom of movement has been surrendered, no further penalties should be placed on either the guilty party or on his or her family. Insensitive and sensational media coverage often adds unnecessary grief to the family of the guilty party even though they are totally innocent. Many of the problems encountered in the area of criminal law come from deficiencies in implementation of the law rather than major flaws in the legislation. Too often the finger is pointed at this House for those problems and that is unacceptable. There may be room for even greater care and vigilance in the implementation of the regulations regarding the temporary release of prisoners in particular. Sometimes the most prudent course of action is to refuse such requests irrespective of the relevant circumstances.

The Bill includes some interesting proposals regarding criminal procedure. However, I have some reservations regarding the proposals dealing with a suspect's right to silence. I believe that the investigative and judgmental skills of our courts are quite capable of assessing the implications of unreasonable silence from accused persons. If we apply too much binding legislation in such cases we run the risk of contributing to a miscarriage of justice in a small minority of instances. For example, people wrongly accused of crime can be so outraged as to refuse to accept the reality of their position. In such instances it is vital not to confuse stubborn and possibly foolish silence with guilt.

Deputies O'Donnell and McDowell have made a significant contribution to the ongoing debate on improving our criminal laws. Similarly, I express my appreciation of the energetic and balanced manner in which the Minister and her staff are advancing the cause of justice. Seldom in the history of the State has such a sustained programme of law reform been developed, implemented and refined. The Minister for Justice, Deputy Geoghegan-Quinn, the Minister of State, Deputy O'Dea, and the officials in the Department must be complimented on that.

I congratulate the two Deputies for introducing the Bill and I welcome the opportunity to contribute to the debate. There are a number of issues in the Bill which are very important. I believe the most important one is the part of the Bill dealing with the reform of our bail laws. The present position is costing the State a fortune because of the number of people who are repeatedly offending while on bail. Members of the Garda will tell of their total frustration with the present position. They are arresting people, bringing them before the courts, but they are getting out on bail and a few days later are seen on the street. This has a serious effect on Garda morale and is a bad example to those who hang around with such offenders. Offenders can get around the law and make a joke of the Garda, which many continuously do while on bail. It is a serious problem and many gardaí have made complaints to me about the problems they face.

I have received many letters from constituents and others, some of which have been passed to the Minister, who have come up against this problem when their houses were broken into or they were victims of another crime. Gardaí have told them that such offenders are repeatedly brought before the courts, are out on bail and there is little they can do about it. Those people are outraged that this can happen.

Two weeks ago I received a letter from a constituent, which I have passed to the Minister. The constituent's shop had been repeatedly broken into by the same offender. The offender is out on bail and I am sure he will reoffend. It is a serious problem that needs to be tackled. It undermines the public's perception of the legal system. Many people cannot understand how this practice is allowed to continue. Newspaper reports of such cases, which may be blown out of proportion, are bad publicity for our legal system.

In a survey I carried out in my constituency 70 per cent of those surveyed believed the law on bail should be changed and made stricter. If the Garda were able to deal properly with 30 to 40 of those criminals it would cut the crime level in the city considerably. The Garda are repeatedly pursuing the same offenders. They know who they are and they arrest them. That is a huge drain on their resources. Many gardaí are not on patrol because they are dealing with hardened criminals who probably know the law better than they and many Members of this House do.

I realise this is a difficult problem to tackle as we must introduce legislation that will not challenge the Constitution. I am delighted the Minister referred this matter to the Law Reform Commission because, hopefully, it will be able to come up with something that will be acceptable. I am delighted also that the Minister said last night that if the Law Reform Commission recommends an amendment to the Constitution the Government will accept it. That is important and it may be necessary. An amendment to the Constitution would open up an interesting debate on bail. One would see the two sides, once it is important to achieve the right balance to ensure that individual rights are protected while at the same time protecting the public. People who have no regard for the law, people or property must be tackled and realise that if they commit a crime while on bail a further sentence will be imposed. Crime is one of the top issues and bail is a key element. If we sort this out, not alone will the general public have more confidence in the legal system, Garda frustration with hardened criminals will be dissipated and we will save money because we are repeatedly dealing with the same people and Garda time is wasted.

Part III of the Bill concerns the criminal law on mentally ill persons. This is an extremely difficult but important area which must be carefully handled. The people involved in this area must be of the highest calibre, have had a lot of training and know exactly what they are doing. There could be enormous problems in this area if it is not handled properly. The Minister for Justice gave a commitment in the Programme for Government and I gather that legislation is at an advanced stage. The Minister for Health is also bringing in legislation, and I look forward to it because there is a need for change in this area and it must be handled delicately.

Part IV of the Bill deals with the remission of penalties, pardons and temporary releases. The main provision of this part of the Bill requires notice of temporary releases and mitigation of sentences to be published. I agree with the Minister's views, if we are trying to rehabilitate offenders I do not see why we should publish their names. We should publish statistics on temporary releases but not the names of individuals. If the social services and prison services are successful in rehabilitating prisioners back into society to live a normal life, they want to forget the mistakes they made in the past, and publishing their names would be an invasion not only of their privacy but that of their families. If they have been rehabilitated and want to live an normal life without offending anybody else, they should be helped to do so. Many early releases are not instigated by the Minister but are authorised under the supervision of the probation and welfare service, a group of people who work extremely hard under difficult circumstances. They make their own recommendations. They should be allowed to do that and there should be no question of the names of the people in question being published which would cause difficulties for themselves and their families.

I welcome the Minister's commitment to the strategic plan for the management of offenders. It is an area fraught with difficulties, particularly in England, because people reoffend constantly and tend to come from the same places, for example inner cities and less well off areas. I recently saw a programme about this and the tragedy is that people are stuck in a rut which it is very hard to get out of. At a recent meeting of the Committee on Legislation and Security the Minister mentioned that some of the offender rehabilitation schemes here have a 70 per cent success rate, which is extremely high. Most of the people at the meeting recognised that this is far higher than in other countries. If we are achieving that kind of success rate with certain schemes we should help as much as we can and not highlight the fact that the people concerned made a mistake in the past.

The Minister's record in reforming the criminal law speaks for itself. She brought in approximately eight major Bills. She has been very active as a reforming Minister and most people welcomed the legislation she introduced. I believe the Minister will fulfil the promises she gave last night as she has always done in the past. I welcome this debate and congratulate the two Deputies who raised the matter. The issues are important, particularly the question of bail. If we can sort that out we will solve many of the problems linked to it. I eagerly await the Minister's proposals on these matters.

I thank the previous speakers for endorsing the proposals in this Private Members' Bill and the Minister for her response last evening. Anybody with a finger on the pulse at the moment will vouch for the heartfelt concerns of our citizens, expressed by them at every possible opportunity when they meet public representatives, at the level of crime which is perceived to be on the increase in our communities. They are particularly worried at the motiveless nature of many criminal activities. Faced with this escalation in crime our citizens demand action, not putting the issue on the long finger and promising reform. They are tired of hearing politicians on all sides coming out with routine condemnation of the high level of crime.

Last year the Minister announced a £66 million package to be ploughed into law enforcement and reform of the system generally, which is welcome. However, the Progressive Democrats propose a range of measures which are, in essence, a procedural response to some of the problems which beset the criminal justice system. Not all reform is a drain on the Exchequer or necessarily expensive. There are structural defects in our criminal justice system which could be ironed out without a charge on the Exchequer and without placing a further burden on the taxpayer.

I welcome the Minister's statement that she is considering our proposed measures which, if implemented, could go a long way towards addressing many complex inadequacies in the justice system. The law must change to meet changing circumstances, particularly social circumstances. With the unprecedented level of unemployment and the breakdown in social cohesion, traditional family patterns and discipline generally among young people, which is being experienced not only in urban areas but throughout the country, we should have confidence to adapt our laws to changing circumstances. Procedures, precedents and principles which have served society well for several generations are not cast in stone. It is our responsibility and duty to adapt our laws on crime to changing circumstances.

My generation grew up with a liberal approach to crime. However, as one encounters crime, those liberal views are quickly diminished. They may be accepted in the academic study of law, but in the application of rules it is sometimes proven that the principles which were meant to support the criminal justice system and protect human rights and civil liberties are an obstruction to real justice. These matters must be confronted.

This House should not be afraid of the Constitution, a very valuable document which has been changed as society has changed. This is particularly so in family law matters and the role of the family in protecting children. As social circumstances change our laws must change. We must not believe that the Constitution is cast in stone. We have the power to change our laws and must do so even if it means changing the Constitution. We must be willing to challenge the principles which have served us well in the past and this must be done without ceding fundamental rights. We should be courageous in putting forward legislation, even if there is a possibility that it will be challenged and sent by the President to the courts for adjudication. Every Bill that goes through the House is deemed to be constitutional until challenged. We are here not only to reflect public opinion but to challenge and enlighten public opinion on particular areas.

As seen in the recent elections, the electorate is seeking action on a range of political and social issues. Many people are tired of politicians who fudge issues and try to please everybody. This Bill is radical and a sincere effort to challenge the premise that the status quo will suffice. The Bill proposes to amend the law to prevent abuse by people on bail who commit further crimes. Persistent offenders will find it impossible to get bail under the terms of the Bill. Every possible step to tighten the law on bail without a constitutional referendum is proposed.

The Law Reform Commission is considering reform of this area and the implications in practice and in policy of such reform. I am sure that whatever recommendations are made by the commission will involve a change in the Constitution and I am glad the Minister said she will have no hesitation in going down that road. The dissatisfaction with the present bail laws needs to be shouted from the rooftops. If change is not made soon we are all wasting our time. This is one area of the law which all parties agree is in need of reform and there is no excuse for delay in changing it.

At present a person cannot be refused bail even if there is evidence that he or she is likely to reoffend while on bail. This is a very serious shortcoming. The measures we propose would allow surety to be forfeited if the person reoffends while on bail. This is a simple measure. The Bill also proposes to increase the amounts of bail set, with discretion on the part of the judge. As the amounts of bail set are frequently paltry, people put up the money as a matter of course.

Part III of the Bill is a comprehensive restatement of the law relating to insanity and criminal responsibility. This is particularly topical in the light of widespread concern that people evade justice by claiming insanity. A verdict of guilty but insane masks the fact that this is an acquittal in law. New powers are proposed to detain dangerous criminals and prevent abuse of insanity pleas. The way in which mental disorder affects criminal responsibility has been the subject of much academic and legal debate over centuries. This Bill is an attempt to integrate the psychiatric understanding of mental illness in the 1990s with the complex knot of legal problems surrounding the insanity plea. The subject of the proper management of the mentally disordered defendant at all stages of the criminal process is addressed.

This Bill is substantially a representation of a Bill drafted by a special interdepartmental committee on mentally ill and maladjusted persons, chaired by Mr. Justice Henchy in November 1978. The recommendations for change have been neglected for 14 years. The Minister pointed out last night that these recommendations are in need of review. I welcome the commitment in the Programme for Government to bring forward legislation in this area. Substantial intellectual investment has been put into this matter by the interdepartmental committee and it would be a shame to waste it.

The terms of reference of that committee were very broad and included the right to examine and report on the provisions, legislative, administrative and otherwise, which the committee considered to be necesary or desirable in relation to persons, including drug abusers, psychopaths and emotionally disturbed and maladjusted children and adolescents who have come, or appear likely to come, in conflict with the law and who may be in need of psychiatric treatment.

It is interesting that the Bill, as drafted, which was annexed to the report, did not deal specifically with drug abusers or intoxicated persons who commit offences. In its introduction the report states that drug abuse and intoxication as factors in the commission of criminal offences require a depth and spread of study beyond the range of the committee. Drug addiction and alcoholism interplay with criminal responsibility. This is an area that is in need of vigorous and in-depth study. A very high proportion of the prison population are drug addicts. Because of that, we need to conduct a complex study into how drug addiction and intoxication can affect criminal responsibility. That can only be done if we carry out a comprehensive audit of our criminal population.

The difference between the legal and medical definitions of insanity is complicated by the fact that insanity means different things in medicine and law at different stages of the criminal process, and by the inherent limitations of psychiatric testimony at the trial and post-trial stages. When a plea of insanity is raised in connection with assessing the competence of the accused to stand trial, the issue is whether he is insane at the time of the trial. The legal test of insanity is whether the accused is capable of understanding the proceedings, although evidence of certifiable insanity is normally accepted as conclusive proof that he is insane in the required sense, in other words, evidence that the accused has been diagnosed as psychotic is generally enough to convince the court that he or she could not be tried as charged. There are recent publications dealing with this subject in Irish law and the whole test of what actually constitutes mental disorder. The Minister raised this issue last night. A defect of the Henchy report is that it did not deal with the crucial issue as to what degree of mental disorder justifies absolving a person of criminal responsibility and how it should be determined.

Before comprehensive legislation is brought before the House a great deal of academic, psychological and psychiatric work will have to go into the framing of the Bill. As McAuley in a recent book on criminal insanity says, in Irish law, though heavily influenced by modern psychiatry, the test of insanity is not co-extensive with the psychiatric conception of madness. There are several reasons for this. First, legal insanity is an excuse for wrongdoing, not a diagnosis of the accused's mental condition. We excuse the insane for the same reason we excuse the very young — because they lack the capacity to act rationally, to understand what they are doing, why they are doing it and to act on the basis of that understanding. This insanity is not a defence because it is a disease but because it is a species of one of the excusing conditions traditionally recognised by the law. This proposal is an attempt to resurrect the Henchy report and to put it on the political and legislative agenda and prompt the Government to address this area of the law.

People do not often claim insanity as a defence because if one is found guilty but insane it means one is potentially locked up for life at the behest of the Executive. That is why such cases are quite unusual, but nonetheless a hard case is always just around the corner and our law should be in readiness and updated to meet the need, such as having integrated up-to-date psychiatric knowledge to deal with the prospect of the legally insane.

We have argued about the need for more transparency in cases of temporary release and remission of fines. We do not oppose temporary releases or remission of fines but we believe there would be widespread outrage if the public knew of their true extent. When somebody is tried and convicted they are sentenced to a term of imprisonment or fined a specific amount and I believe that the public is not aware that the sentences may be remitted by the Executive. As a new Deputy, I was certainly not aware of it and when I subsequently became aware I was surprised at the extent of it. The process should be transparent. In essence, the criminal process is a public affair. The transcripts of a criminal trial are open to the public and I believe any remission of a sentence should be in the public domain. I do not believe the excuse that making it public knowledge would be an infringement of civil liberties. In the interest of transparency it should be made public. The constitutionality of the matter is before the court so I will not go into it in greater detail.

It is proposed to confer for the first time jurisdiction on the District Court to consider the mental conditions of persons charged before it and to make orders for the treatment and care of those found to be in need of it. Where it appears to the district justice that the accused may be suffering from a mental disorder, he may arrange for the examination of the accused by any doctor in the first instance and if it is then thought desirable to have a more detailed assessment by an approved medical officer, provision for this is made in section 15. The establishment of a mental care review body is one of the primary recommendations in the Henchy report and I believe that this proposal should survive any review of the Henchy recommendations.

Today I raised the question of sex offenders, having served their sentence, being released into the community. Last week there was a case in Britain where an Irishman was sentenced to 12 years imprisonment for committing a foul rape on a young woman in Britain three months after being released from an Irish jail having served four years of his six year sentence for the rape of a 14-year-old Irish child and having been granted 25 per cent automatic remission. I believe sex offenders should not be allowed to avail of automatic remission unless someone has carried out an evaluation of the person because there is a propensity for offenders to re-offend. There is a high rate of recidivism among sex offenders. This area of the law needs to be looked at.

I am aware the Minister is setting up a treatment programme for sex offenders but generally speaking there is a very low success rate in treating sexual offenders. It appears that these men are being released into the community in an unplanned way. It is immoral and reckless to the point of irresponsibility to release men in such cases as I have instanced where no objective assessment has been made of their propensity to re-offend. This is part of the constitutional argument on bail. The Supreme Court has said that bail should not be refused to a person because of a propensity to re-offend. The presumption is that once one has completed a fixed term, one is free and a propensity to re-offend should not be assumed. That is too liberal an approach to take to such a serious issue which allows sex offenders, who are dangerous criminals, back into the community in an unplanned way.

Another area about which I am concerned is the care of people who may not be appropriate inmates in prison. I refer to those who have psychiatric disorders and the issue of whether they should plead a psychiatric disorder or insanity at the time of their trial. If they do so, there is the possibility that they would be put away for ever or at the behest of the Executive. There must be an audit of the prison population, what makes them tick and whether there is any hope for these people. Individual plans must be put in place for each inmate.

The situation regarding bail is one of our great scandals but another great scandal is that remand prisoners are integrated with convicted prisoners. I have said on many occasions — during the debate on the Justice Estimate and elsewhere — that there must be a separate centre for remand prisoners. It is not fair to integrate them in an indiscriminate way with convicted prisoners. They are deemed to be innocent until they are convicted and integrating them with convicted prisoners puts pressure on the system which results in temporary releases. That raises the other issue of crimes being committed while prisoners are on temporary release. The whole system is close to collapse because of the overcrowding in Mountjoy prison but procedural changes could be made, quite apart from building more prisons. There is no doubt that we need additional prison places but the law on bail must be examined as well as the separate treatment of remand prisoners.

Another section of the Bill deals with the right to silence. This section might seem draconian but we are not proposing to remove totally the right to silence. We propose that an inference should be drawn if the accused sings dumb. Many people will say that this might result in a miscarriage of justice and that people should always have the right to remain silent but I understand from speaking to lawyers that those who are innocent want to shout their innocence from the roof-tops and that the right to silence is generally used as part of the legal game. They remain silent on the basis that the prosecution has to prove everything, they have the right to say nothing and no inference can be drawn from that. That issue must be confronted and Deputy McDowell, as a practitioner, has drafted various procedural aspects of the Bill which are quite complicated and which possibly would go above the heads of many Deputies, including myself. As a practitioner, he has an insight into the criminal process which I certainly do not have.

I wish to refer to the speeding up geneally of the criminal justice system. I understand the Minister is drafting proposals in the Miscellaneous Provisions Bill which would change the law in a whole range of issues. I am glad the Minister is responsive to proposals made by the Opposition. She has been a very active Minister for Justice. I regret the Bill is not getting a positive response but we want to encourage the Government to address the problems of bail and the issue of the criminally insane. Hard cases are always just around the corner in relation to the criminally insane and the response of the law.

I feel strongly about the potential abuse of Executive power in the reduction of sentences. I understand in the past there was much more consultation with the District Court judge who dealt with the original trial but that the matter is now a routine one for the Executive. In some cases the remission of sentence is being approved even though the appeal process has not been exhausted by the person concerned. The figures have increased dramatically in recent years and this is causing a lowering of morale among the Garda Síochána. Perhaps this is something that members of the Garda say only to Opposition Deputies but I cannot be sure of that and I wonder if the Minister and the Minister of State are simply closing their eyes to the fact that there is widespread concern about the lack of transparency in the petition system.

I look forward to the continuing debate on the Bill. It provides the House with an opportunity to examine the issue of mental illness and I ask the Minister to respond to my proposal to examine the problems of drugs and alcoholism and how they contribute to criminality.

I wish to share my time with Deputy Martin.

Is that agreed? Agreed.

I welcome this wide-ranging and substantial Bill containing 59 sections and six parts. Most of the issues raised merit debate.

The Minister stated last night that she was not prepared to accept the Bill but I say to her and indeed to Deputies across the House tha there are many aspects of the Bill with which I am in general agreement. That is based on my own research, my experience as a member of the crime committee of this House for many years, my experience of the debates in the Select Committee on Legislation and Security and my 13 years experience as a public representative dealing with problems in this and related ares. I am sympathetic to many of the issues that have been raised and the concerns expressed in relation to them.

Part II of the Bill deals with bail and Part III with the mentally ill and criminality. Part IV deals with pardons, remissions, commutations and temporary release of prisoners and Part V deals with criminal procedure. Given my experience, research and participation in debates I will concentrate on commuting sentences, fines, pardons, remissions, temporary release of prisoners and bail.

I accept the Minister's assurances that all aspects of the Bill will be dealt with individually or collectively in forthcoming legislation. Some aspects have been referred to the Law Reform Commission. I am heartened by her commitment that, when bringing forward the Government's proposals in areas dealt with by the Bill, consideration will be given to the measures contained in this Bill. That is heartening and positive but I would not have expected anything else from the Minister or the Minister of State, both of whom have been extremely active, since their appointment 18 months ago, in the area of legislation to tackle crime. I welcome her comments that she will take into account the exchange of views expressed here. Certain aspects of the Bill presented by Deputy O'Donnell, with I am sure the assistance of Deputy McDowell, will contribute to forthcoming legislation.

Reading through Part IV of the Bill, despite what Deputy O'Donnell said at the end of her contribution, there is an implicit acceptance of the petitions procedure. This area was debated in the Select Committee on Security and Legislation as Deputies O'Donnell and Harney will recall. It is something I have had to deal with on numerous occasions in my constituency work in Dublin North East. I do not deny that or shy away from it as some might. I deal with it on a regular basis. Having deliberated long and hard about the merits of such a procedure I have come to definite conclusions. I deplore and deeply resent any attempt to restrict — I am not talking about this House — the Minister's powers in this area as suggested in recent media reports. I am glad that kind of approach is not promoted assertively in the Bill in spite of the reservations articulated by Deputy O'Donnell.

The petitions procedure is a necessary feature of the criminal justice system. It is provided for in the Constitution and the Criminal Justice Act, 1951, where the Minister is given explicit power to commute or remit penalties imposed by the courts. I recall many occasions when constituents came to my clinic in panic having received a notice of final imposition of the penalty. Many of them would not have heard of the petition procedure before I informed them of it. Sometimes they faced fines of £300 and £400. If there were no petition procedure such people would incur considerable expense in having to go to the Circuit Court. The petition procedure is an inexpensive, acceptable means of appealing against the severity of a fine. It does not cost anything. Contrast that with the cost of hiring a solicitor or barrister to go to court to prove that an unjust fine has been meted out. In many cases the people do not have the means to pay. In one case a deserted mother with four children was fined £300 for non-payment of a television licence. Perhaps there were cumulative arrears but that was the fine imposed. She could not afford to pay and her only alternative was to go to prison. Is that what we want as legislators? If we restrict that system we will need to build many more prisons to house those who do not pay their television licence, park illegally or do not license their dogs. I do not condone anyone breaking the law, nor would I ever do so but I make that point nonetheless.

For many people an appearance in court is stressful and traumatic. It is small wonder that some people avoid attending court and take the rap to a far greater extent then they would if they had attended. In court they must bare their souls and give full details of their marital and financial circumstances and they are reluctant and embarrassed about doing so. The court does not always hear the full facts. Constituents who attend clinics are far less circumspect and talk freely and openly to us. We are in a better position to make a more accurate case to the Minister. I could delay the House with numerous examples of that as could other Members.

I am trying to find the most effective means of dealing with fines imposed on the categories of person to whom I referred, not chancers. It is high time that we, as legislators, stood our ground and said "hands off the petitions procedure". I ask all Deputies whose constituents have been wronged or who suffered an injustice as a result of a court decision, to roundly condemn any interference by outside parties in the legitimate affairs of democratically elected Members.

Section 51 calls for a register of temporary release orders which is objectionable. As one who constantly advocates the harshest possible measures for certain categories of criminal, I sound a note of caution that we must never, through the laws we enact, propound the principle that once a criminal always a criminal. A register as defined in the section has huge potential for damage in that way. A juvenile in a primary school could be confined to custodial care. My colleague opposite might not have had as many experience as I given that I teach in the inner city but would, nevertheless, be aware of what I am saying.

If that juvenile is registered as having obtained early release with whatever reports emanate from that custodial institution he or she is registered as a criminal, perhaps a juvenile criminal but nonetheless a criminal. When registered, the potential for input by the probation and welfare services, psychiatric and psychological services, teacher services and parental support back-up where available is ignored. We would ignore the multi-disciplinary team potential input into that young child's life which would enable him to rise about his deviant and delinquent behaviour and become a responsible member of society as he moves towards adulthood. I caution against that proposal and appeal to the Minister to guard against it.

Part II of the Bill deals with bail and I welcome many aspects of it. In my constituency I have had experience of problems with the bail system. People on bail have abused the system left, right and centre, some because of drug abuse and others because of their determination to accumulate wealth. If it takes a constitutional amendment to sort this issue out I would welcome that. I am glad the Government have referred this for immediate consideration. I welcome the Minister's commitment that if a constitutional amendment is required she will follow it through. She will have my support in doing so.

I welcome the opportunity this debate affords us to discuss both the contents of the Bill and the overall crime problem and its consequences on society. I am always concerned that we place too much emphasis on dealing with the consequences of crime rather than devising the means to prevent crime in the first instance. For example, the lack of a national programme on the prevention of drug and alcohol abuse and intervention methods in our schools is a scandal. There is a very strong correlation between the level of crime in society and the level of substance abuse. The increasing number of young people who engage in substance abuse and who subsequently become involved in crime — some of them are as young as ten or 11 years — is alarming. We need to concentrate on this problem and urgently put in place both at primary and secondary level a proper educational programme for the prevention of substance abuse which will instil confidence in young people to withstand peer pressure to get involved in substance abuse. I make that point in the context of this debate as it is fundamentally linked to many of the other problems about which we are concerned.

I appeal to the Minister to expand significantly the community policing programme, which has been an outstanding success since its introduction and which will have a long term impact. Its impact will not be evident immediately as many of the community gardaí are working with young people and the benefits of this will only be seen in five to ten years. Unlike the relationship between many young people and the Garda, community gardaí can inculcate among young people a respect of the Garda Síochána and help to build a proper and constructive relationship with them.

In many ways this Bill is topical. It was evident during the campaign for the European elections that the problem of crime is uppermost in people's minds regardless of where they live. There is a very real and legitimate perception among people that the rights of the victims of crime are not properly recognised by the State or the system and that the rights of criminals are paramount. As legislators we have to respond to these concerns and reform our law so that the victims of crime are given greater protection. There is a sense of fatalism among people about our ability to deal with the ongoing crime problem. Last week an elderly couple in my constituency came across a break-in. I am sure that when the crime was reported the Garda inevitably said "This is the fifth break-in this week. There is not much we can do about it. You had better take measures to protect yourself and install an alarm system". This sense of hopelessness is causing distress among the public.

The Minister has been very generous in terms of the response to the contents of the Bill, particularly the section dealing with bail. It makes common sense for us to await the report of the Law Reform Commission before we reform our bail laws. I welcome the Minister's commitment that if a constitutional amendment is required to improve our bail laws, she will proceed in that direction. While accepting her words of caution on this complex matter, the public want us to deal with it as it is clearly unacceptable for people to commit crimes while on bail. Unfortunately, this is happening all too frequently in our community.

On the question of criminal insanity, the Minister has made it clear that to a certain degree the Bill anticipates legislative proposals which are at an advanced stage of preparation and transcends many of them. It is only proper that we should deal with this issue in the proper context. As the Minister pointed out, this is a complex area and it will be difficult to be definitive and specific in dealing with it. Much research has been carried out in this area and many disciplines may need to be reconciled. We cannot arrogantly arrive at definitive conclusions. I believe the Minister has adopted an understanding approach to this issue.

I agree with the points made by Deputy Fitzgerald about a register of temporary releases, the mitigation of certain sentences and the publication of these in Iris Oifigiúil. Much criticism has been made of the petition system and public representatives have made representations to the Department of Justice and so on. A number of my experiences have given rise to questions about the custodial system. For example, it is ridiculous that people who get into debt for different reasons, some of which are beyond their control and others because of the lack of an early intervention system can often find themselves in jail. People may not be aware that a person in the community is not well off, is experiencing problems and does not have access to a community welfare officer or aid agency. Representations are then made by neighbours and others to the local TDs to do something about this appalling situation.

Consideration needs to be given urgently to the cost to the Exchequer of keeping people in jail. If politicians did not take time to deal with these issues many people would be imprisoned unjustly for unreasonable lengths of time. Further consideration needs to be given to the imposition of fines on people without any recognition being given to their capacity to pay. There is little point in imposing unrealistic fines on people who cannot afford to pay them. We should be looking at alternatives to the age old tradition of imposing fines. Our focus in terms of the punishments which can be meted out for certain crimes has been too narrow. I hope any debate on the petition system will not be used by people to make cheap accusations etc. All of us know of genuine cases where great hardship has been unwittingly caused and which needs to be alleviated. If we did not have a petition system this could not be done.

I would oppose the creation of a register of temporary releases because it would involve issues such as the rights of privacy, for example. In addition, in my view, it would interfere with the rehabilitative process we should be encouraging. We all agree that, unfortunately, the degree of turnover of the same prisoners is too high, with their returning to gaol repeatedly. Despite all of the educational content obtaining, we all protest and criticise the lack of rehabilitation within the prison system generally. The creation of a register of temporary releases would interfere significantly with that process and is one I would oppose.

Debate adjourned.