Dáil Éireann debate -
Wednesday, 22 Jun 1994

Vol. 444 No. 2

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

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

Mr. J. Higgins

I join speakers from all sides of the House in sincerely commending the Progressive Democrats and Deputies McDowell and O'Donnell on putting together comprehensive legislation in the form of the Criminal Justice Bill, 1994, containing 59 eminently sensible sections, many of which introduce long overdue fundamental changes which, if adopted by the Government and taken through Committee as it should be in the interests of consensus politics, will do much to enhance the justice system and tighten up the law in a number of areas which badly need it.

I welcome the changes introduced in sections 3, 4, 5, 6 and 7 in relation to bail. Too often people come up with the necessary finance for bail — money is not a problem — and crime recurs again and again. I welcome in particular the section which puts an obligation on the person putting up the bail to take an interest in the behaviour of the accused person while on bail. It is a sensible suggestion, as are the other sections, particularly the one which allows the court to estreat the bail in the event of the accused person committing a crime while on bail.

I would like to see one fundamental change in the Bill which is particularly borne out by a pending case which was the subject of a Dáil question by me to the Minister for Justice yesterday. I asked the number of court appearances made to date by a person, the number of personnel involved in respective journeys conveying the person to and from court, the total cost of the appearances and the proposals, if any, the Minister had to change the legislation covering the place in which similar court appearances are held. In reply the Minister said that the number of court appearances to date by the person in question was seven; that it is not the normal practice to provide details concerning the number of gardaí engaged in particular operations; that the total cost of these appearances, including court appearances, was estimated to be in the region of £2,000; that the figure did not include Garda pay but did include the cost of overtime, subsistence allowance and petrol. The Minister went on to say that with regard to the question of changes in existing legislation, any legislative proposals she might bring forward to deal with the matter raised by me would be announced in the normal way in due course when considered and approved by the Government.

The defendant in question made his eighth appearance today, this time in County Galway. It is ludicrous that a defendant should be hauled, week in and week out, on a journey of up to 150 miles to a court hearing lasting three or four minutes, and back to his place of detention. The relevant legislation is the Courts Act. Because of the construction of the Act, and because of time constraints, the defendant must, until the Book of Evidence is produced, be taken back to the District Court in the jurisdiction in which the crime is alleged to have been committed. It is obvious that the sections which dictate this course of action are outdated and archaic and the necessary amendments should be introduced to transfer routine District Court hearings nearer to the detention or remand centre. While the accused is being brought several hundred miles across the country for a court hearing of a few minutes' duration, District Courts are held within one mile of the place of detention or remand. I call on the Minister for Justice, therefore, to introduce the necessary amending legislation to ensure that such interim court hearings will be held as close as possible to the place of detention. The point is further underlined when one considers that when a trial does take place it will be in Dublin.

In the case I referred to the defendant was remanded to a further hearing at Banagher District Court on Tuesday next. Again there will be a cross-country trek of 100 miles or so with the attendant heavy Garda security involving Garda vans and patrol cars, overtime payments, subsistence payments and the deployment of additional gardaí who are badly needed elsewhere. Let nobody tell me that this outdated farce is in the interests of the plaintiffs. It is certainly not in the interests of the defendant. I cannot see how it could be in the interests of justice and it is certainly not in the interests of the taxpayer.

I do not blame the Garda. This case is one of many which have occurred over a period of time. I do not have legal competence but as an ordinary independent civilian, as a legislator, as somebody observing from within and outside this House with the detachment of an observer, it is difficult to see why these procedures cannot be suitably amended. It is something the Minister for Justice might well take on board in the foreseeable future because there is a certain amount of anger and anxiety and a failure to comprehend on the part of many people.

Mr. Ellis

I wish to share my time with Deputy Batt O'Keeffe.

An Ceann Comhairle

Is that satisfactory and agreed? Agreed.

Mr. Ellis

None of us disagrees on the amount of time and effort put into this Bill by Deputies McDowell and O'Donnell and no doubt the legal advice available from Deputy McDowell and that available in the House to Deputy O'Donnell was of major assistance to them.

The Government's performance in introducing so much legislation in the past 18 months to update the criminal law is to be admired. We have seen changes which, if agreed by the majority in this House, are for the betterment of the operation of the legal system within the State.

I agree with Deputy Higgins about the circus when people have to be brought, on a weekly basis, from Mountjoy Prison to District Courts in other parts of the country. This is a very expensive exercise. The locals are interested to see whether the prisoner's appearance has improved or disimproved during their term of detention.

I hope the Law Reform Commission will recommend that prisoners be allowed appear in the court nearest to their place of detention— that may not necessarily be Dublin. With the provision of the new detention centre in Castlerea, it would be ridiculous to take a prisoner from there to Cork for a court appearance. I hope this matter will be dealt with in legislation which the Minister intends to introduce. It should be adequate that a person appear before a District Court anywhere within the State. The circuses we see on a regular basis on television whereby prisoners are brought from one part of the country to another must have a great effect on the families involved, both the family of the person charged and the family of the victim. I hope this problem will be remedied in the not too distant future.

We all have mixed views on the right to silence. In some cases we believe it should be allowed and in others it should not, but where do we draw the line? There is a case to be made on both sides of the argument. I hope that a common ground can be found in terms of the right to silence of defendants. That right is necessary to protect the innocent. If people do not have the right to silence they may not be able successfully to defend themselves at a later stage when they may be totally without blame. I hope that common sense will prevail and that the legislation which the Minister has promised will deal with this matter.

Private Members' Bills are brought before this House on a regular basis. They give Opposition Members an opportunity to express their views and in many cases help to improve legislation introduced at a later stage. The Law Reform Commission, in its report on the bail laws, will present to this House and the Department of Justice the basic elements of any changes to be made to the bail laws. Nobody can condone some of the things done by people while on bail. Those of us living in parts of the country that were once relatively free from crime now find that every weekend gangs travel from the city with the intention of robbing and plundering. In some cases these people are apprehended but in others they are not. We read in this morning's newspapers about the horrific incident where a man was tied to a tree for three or four days after being robbed. Nobody can condone such crimes and whatever laws are necessary to deal with them should be put in place. However, we should not make a rash decision on changing the laws. People who offend while on bail should be automatically detained until such time as their case comes before the courts.

We are talking here about people's rights. There are the rights of those outside this House who are not in a position to make their case other than through their public representatives and the rights of those who need to be protected from criminal gangs. Legislation should be put in place to deal with criminal gangs who pose a major problem in regard to organised crime. Under the present law it is not possible in some cases to apprehend those gangs. Some of the laws with regard to age are being flouted and need to be considered. I hope the Government will bring forward legislation in this area.

A number of positive moves have been made in recent times in the criminal justice system. The Criminal Justice Act, 1993, in many ways protects the victim. For example, for the first time sentences that are unduly lenient may be appealed. The court is obliged to take into account the effect of the crime on the victim and may request the offender to pay compensation to the victim. These are welcome improvements in the criminal law which will benefit the citizen. Perhaps the most important legislation introduced is the Criminal Law Jurisdiction (Public Order) Act, 1994, which gives power to the Garda and the courts to deal effectively with those who misbehave in the community without regard to the rights of others. All of us as public representatives have had such cases brought to our attention. I hope the new law will deal with those cases.

The Criminal Justice (No. 3) Bill will for the first time enable the court to confiscate their profits from the godfathers of crime. We are all aware of criminal gangs who own large tracts of property. The international laundering of money concerns all of us. We are aware it is happening but it is difficult to prove. Garda intelligence is making enormous progress in this area and is pursuing every opportunity to investigate these matters. Decisions such as that made recently on the confiscation of a yacht used for the importation of drugs will help deter those involved particularly in drug importation. We are all aware of the damage that can be done as a result of drug taking. Many people endure misery and hardship when members of their family become involved in drug abuse. The real beneficiaries are the drug pushers. Measures to deal with those who make profits from criminal activity have long been needed. We all hope that the Criminal Justice (No. 3) Bill which was recently discussed in the House — amendments were dealt with earlier today — will ensure that those involved in crime do not benefit from it.

This Government more than previous administrations has shown its commitment to reform of the criminal law and we can be proud of the progress made. Deputy Michael McDowell may think we are not progressing fast enough. No doubt he perceives that his Private Members' Bill will serve as a back-up to the Government's proposed legislation which will be introduced following deliberation of reports from the Law Reform Commission. I believe the debate on this Bill will help those who will draft the Government Bill.

I accept that legislation is never perfect. The Minister gave a commitment to the House that if as a result of the deliberations of the Law Reform Commission it is necessary to introduce a constitutional amendment to deal with the laws of bail, she will do so. The Government has a record of trying to put a stop to criminal activity. More places of detention are being provided and this acts as a deterrent. Some may argue that detention is only part of the solution and that may be so, but it is imperative to have more places of detention if people are being released because of overcrowding. I am glad that the proposed prison in Castlerea is proceeding and it is hoped it will be ready in 12-18 months' time.

The services for juvenile offenders are inadequate. They are not being given an opportunity to reform their behaviour and, in some cases, learn criminal tactics in some institutions. I hope that in future those detained for petty crime will be rehabilitated and taught to be better citizens. It is important that places of detention rehabilitate prisoners. We know it is hoping for miracles to try to rehabilitate some criminals, nevertheless, we should try.

We have a duty to deal with crime and much of the recent legislation will help to deter people from committing it. At this late stage I appeal to Deputy Michael McDowell to withdraw his Private Members' Bill — having received maximum coverage during the debate in the past two weeks — and wait to see the common ground in the Minister's Bill. I accept that is not what he would like me to say but it would lead to better legislation, from which everybody would benefit.

I presume Deputy Davern is substituting for Deputy O'Keeffe and, if that is the case, I ask your indulgence, Sir, to allow him to speak.

Mr. Davern

Thank you, Sir, for facilitating me. I compliment Deputy Michael McDowell for introducing a Private Members' Bill. It is important that we point out to the general public that Members are concerned about criminal law. Sometimes it may appear that this House is not interested in what is happening outside this Chamber.

Bail is one of the most important issues in the context of criminal legislation. The Supreme Court decided in 1966, unfortunately, that bail could be refused only on the following grounds: (1) that the defendant would not attend court or would abscond; (2) that the defendant might interfere with witnesses or jurors; or (3) conceal evidence, and it would be up to the Garda Síochána to have proof. Since 1966 there has been an escalation in crime and we need to examine the section of the Bill that deals with bail. The public is rightly annoyed when it sees people on bail committing two or three more crimes. Offenders consider it worthwhile committing more crime while on bail because in any event they will have to serve a sentence and most sentences run concurrently. That is frustrating, not only to the general public and the victims of crime, but also to members of the Garda Síochána.

I compliment the Minister of State on the number of Bills brought before this House in the past 12 months. The Minister has undertaken to consider whether a bailsperson should lose his bail money if an offender commits a crime while on bail. That is vitally important. The Minister asked the Law Reform Commission to examine this area and it would be improper to ask that august body to form an opinion and yet proceed before receiving it. I compliment Deputy Michael McDowell for highlighting these issues but it is important to hear from the Law Reform Commission before we legislate. I agree that the bail laws need urgent attention and I hope the Law Reform Commission will respond more quickly than it has done in the past.

I am very concerned about victims of crime. I have no doubt that the presence of someone, while on bail, on the streets of our cities and towns who has committed serious crimes is intimidating for witnesses and would discourage people giving evidence. They would not be directly intimidated but knowing that the accused is free to have a go at them at any time intimidates the witness in many cases.

I totally agree with Deputy McDowell's proposal on the right to silence. That right should have been abolished years ago. If one is charged with a serious offence but is not guilty, there is nothing to fear. The Garda Síochána spends many hours compiling evidence to bring a case to court only to find that the suspect gets off on a technicality because they will not co-operate with the Garda. Circumstantial evidence must then be produced and that is judged in another way by the law. As somebody once said, "the law does not know justice or justice does not know the law". That is a common concept outside this House and outside the legal profession.

Deputy McDowell's proposal in this regard has been promoted in this House on many occasions. Criminals can commit the most horrible offences and have the right to remain silent during their interrogation. This has arisen particularly in regard to the IRA which trains its members to stare at a point on the wall and not to speak to anyone or look in any direction for a period of up to 48 hours. I am sure the benefits of that training have passed on to the modern criminal class.

People who have committed serious crimes should not have the right to remain silent. That should be regarded as a further offence against the victims of such crime. I am sure many people in the legal profession will not agree with that and will not wish to see this proposal introduced because of the legalities and the terminology of law but it should be considered from a victim's viewpoint. The average person pays tax, VHI insurance, health bills, car tax and so on. When people become victims of crime the criminals, in many cases, are not caught. If they are, they get off with a warning or a light sentence. To the victim the impact of the offence is then doubled because they feel they have been contributing to a system that does not protect them.

There has been too much emphasis in the past on the rights of the offender and not enough consideration has been given to the rights of the victim. I met constituents recently whose homes were burgled and the mere fact that somebody was in their bedroom, their kitchen and their sitting room has destroyed their way of life. The lady of the house will not stay at home on her own at night. The older children who are capable of looking after the younger members of the family do not wish to stay at home at night to look after them. The parents are worried also about the possibility of being burgled again. The original crime, therefore, has an ongoing effect. When the Minister introduces her Bill I hope the right to silence will not be sacrosanct. In the case of more serious offences it cannot be allowed to remain.

Another section of the Bill deals with proposals to update the procedures under which preliminary examinations of indictable offences may be carried out in a District Court. I recently had discussions with someone from my constituency who is familiar with the Australian court system. I hope to receive further details from that person which will outline how court cases have been dealt with more speedily there and how they deal with minor offences. I am looking forward to receiving this documentation and to see whether we can adopt similar measures here. Perhaps on the spot fines could be imposed for speeding offences. One Garda sergeant recently brought 163 speeding offences before a court while two or three serious cases were waiting to be heard. Many minor cases could be dealt with without even going to court if liability is admitted.

Criticisms have been made of preliminary examinations. One case which comes to mind is that of the Marlhill murder which took place in my constituency in 1941. The matter was preliminarily dealt with by a local court and from what I have read of the evidence given during that hearing, the case should never have gone beyond that. It came to trial in Dublin, however, and the man was convicted and subsequently hanged. There is now ample proof that there was more than reasonable doubt that the man in question was not the person involved in the murder of the victim, Mary McCarthy.

I agree with some preliminary examination of cases provided the court has the time to deal with it. I compliment the Deputy on the Bill. I am sure he will be disappointed that the Government intends to reject it.

Mr. M. McDowell

Shocked.

Mr. Davern

He has gained good mileage out of it politically, however, which I am sure he needs after his recent debacles which are ongoing.

Mr. M. McDowell

Always the kind word.

Mr. Davern

The Deputy seems to be surviving the battle. He seems to have avoided it——

Mr. Flanagan

He adopted the right to silence in the circumstances.

Mr. Davern

Perhaps he was guilty in that case and that is why he reserved the right to silence. I hope Deputy McDowell will give his consideration to the Minister's Bill and I also hope the Minister will include many of the measures proposed by the Deputy in this Bill which would be of benefit to the average law abiding citizen. More importantly, we must ensure that victims as well as those accused of committing crimes are treated justly.

Mr. Flanagan

I wish to make some points on certain aspects of the Bill, which I welcome. In the true spirit of legislating for the common good I hope that the Minister of State will agree to allow a Second Reading. I do not believe Deputy McDowell would expect the Bill to be given the imprimatur of the House without any opportunity to amend it.

This is the basis for important legislation. Members of the House had an opportunity only three weeks ago of participating in a similar debate on crime and that is an indication of the level of seriousness with which we regard the level of crime in our constituencies. Any survey of the political issues of the day undertaken in the community will show that crime is a major fear. This matter has been debated in this House far more than other activities and it is regrettable, therefore, that worthwhile legislation such as this will not see the light of day following this debate.

Two weeks ago I referred to the right to silence and I do not intend to repeat points made by other Deputies in this debate. This right is giving rise to serious concern and, in many ways, is obstructing the course of the criminal procedures in attempting to determine the truth. There is an onus on every citizen to participate in the orderly running of the community. The right to silence is not in keeping with that civic spirit. We have a duty to update and reform the law. Perhaps at the time it was introduced there were sound reasons for allowing an alleged offender to choose not to engage in a truth finding process.

The reform of the bail provisions has become something of a chestnut in this House. In the aftermath of serious offences, particularly the use of armed violence in bank robberies, there are calls for reform of the bail laws. In 1990 there was a serious crime committed in Athy where people were killed by armed bank robbers and it was subsequently discovered that two of the criminals were on bail. How long will we allow this loophole to exist?

The Minister could quote statistics but suffice to say that thousands of crimes are committed annually by those free on bail. This is unsatisfactory. The 1966 rules must be updated. It has been said that this could only be done by way of constitutional referendum. We have no problem holding referenda on issues imposed on us by the EU. We find £1 million and campaign on the issue. This matter warrants immediate attention by the Government. If we must hold a referendum let us do so. It could be held in conjunction with the referendum on divorce. It could have been held in conjunction with the Euro and local elections at minimal cost to the State.

Deputy McDowell referred briefly to the prison system. The Minister for Justice recently embarked on a huge prison programme at a cost of £70 million. Are we spending taxpayers' money wisely by building new prisons and placing people in custody? Vast sums are spent on their accommodation. There is a need for secure prisons. I realise, coming from Portlaoise, the effect and cost of a high security prison on a town. It costs in the region of almost £1,000 a week to keep a prisoner in custody in Portlaoise Prison which is a big drain on our finances. We must look at alternatives, particularly in cases where criminals may not be engaged in serious criminal conduct.

I accept that restrictions must be placed on the liberty of an offender because the public must be protected and re-offending must be curbed by society. However, a court order could confine an offender to his or her home during specified hours; for example, habitual young offenders engaged in unacceptable behaviour in bars, clubs and so on could be confined to their homes at night. I have seen district justices at the end of their tether and left with no option but to impose custodial sentences in Mountjoy Prison. The concept of imposing a barring order restricting people from going to clubs, pubs or other areas in the community where they are likely to engage in unacceptable behaviour should be taken on board.

Has the concept of tracking been considered? Various schemes could be organised by the probation and welfare services to maintain regular and frequent contact with offenders in the community. An electronic tag is used in many states in the US and pilot studies in Britain in recent years have shown it can be used to good effect. The probation and welfare services and the Garda would know where a person was by the transmission of a signal. Consideration should be given to this matter. It could be looked at as an alternative to spending money on prisons.

A court decision was made yesterday to impose a custodial sentence in Mountjoy Prison on a 15 year old. Where is the accommodation which was promised for young offenders? Where is the juvenile justice Bill we have been promised for years?

The Department of Justice cannot cope with the need to update the criminal justice system or with the crime problem. The Garda is losing the battle against crime. They do a good job but they can only act within the laws we make. The Department of Justice is too big and the Minister should admit that. All we hear is that they are awaiting the report of the Law Reform Commission. We are awaiting their report on bail and on occupier's liability. Everything grinds to a halt while we do so. As Deputy Ellis said, we can shrug complacently and say the matter is with the Law Reform Commission, we cannot do anything until we receive its report. The Law Reform Commission is run off its feet. If we act on as much as 60 per cent of the reports it issues it is as much as we have done in the last 14 years. We have a great day's discussion on the latest report, engage in discourse on the national media and elsewhere and forget about it.

Further assistance could be given to the Law Reform Commission if the work was divided between a civil law reform commission and a criminal law reform commission. If we had a criminal law reform commission we could at this stage, mid-1994, have enacted the appropriate bail legislation, as advised by the Law Reform Commission. If we are serious about engaging in the process of reforming the criminal law we have to ensure that the Law Reform Commission is given targets and terms of reference which will speed up the process and assist the Department of Justice, which needs assistance and does not have the capacity to meet all the changes.

I wish to refer to community service. People should be confined outside the community only for the most grievous and serious criminal offences. Aspects of community service need to be tightened up, updated and given extra assistance. In spite of an overall lack of national standards, the concept of community service is working well; community service orders and programmes are working well in various areas. However, there is a certain lack of consistency in this area which needs attention. For example, statutory effect needs to be given to the works undertaken in the community service area, for example, painting, decorating, gardening, the provision of meals on wheels, working with the disabled, etc. We need to spell out the type of work we as legislators would like to see undertaken by those engaged in community service.

Community service should at all times be rigorous and demanding; after all it is a punishment and should not be seen as anything else. One of the major problems with community service is that the public does not see the benefits or the results of community service orders. The concept of community service works will not gain the confidence of the community until such time as people can see that it is of advantage to the community as a whole. National standards should be applied, targets set and guidelines formulated on the type of work to be carried out. This would ensure a better system of punishment within the community area.

In spite of a certain degree of haphazardness, compensation orders are working quite well. These orders have not been introduced in some areas and where they are being imposed the compensation is paid at the end of the period, whether it is six, nine or 12 months. This is very welcome.

The Bill has provoked a welcome and necessary debate on the criminal law by Members on all sides of the House. The Minister should give this Bill a Second Reading at 8.30 p.m. instead of imposing a hammer-like blow with the huge Government majority on what is basically good legislation. The Bill could then be dealt with by the appropriate committee during the summer recess. The Minister would have an opportunity at that stage to tighten up some provisions which may be of concern to him. I am sure he would not allow the Bill to be dealt with by a committee which did not have a majority of Government Deputies present. Unlike last Friday, all he would have to do is ensure that enough Government Deputies were present to vote in favour of any amendments he proposes.

It is regrettable that this debate on aspects of the criminal law, which regrettably have not been addressed to date by the Government for the reasons put forward by Deputy McDowell and his colleagues, is being brought to a close. I plead with the Minister to allow this Bill to proceed to Committee Stage where all Deputies will have an opportunity to contribute on legislation which is for the common good. Nothing has been said in this debate which should lead to this Bill being rejected by the Government, which it will do in half an hour.

Mr. Callely

I wish to share my time with Deputies Batt O'Keeffe and Michael Ahern.

An Leas-Cheann Comhairle

Is that agreed? Agreed.

Mr. Callely

I congratulate Deputies McDowell and O'Donnell for the work they put into the Bill and for affording Members of the House an opportunity to discuss the criminal law. This substantial Bill covers a number of areas in the criminal justice system of concern to many people. The promoters of the Bill are anxious to ensure that all areas of concern are adequately dealt with.

The Government has introduced an unprecedented number of Bills in the criminal law area since it came into office. It has made great strides forward in addressing areas in need of urgent attention. I welcome the commitment given by the Minister for Justice, Deputy Geoghegan-Quinn, that the Government will bring forward legislation dealing with the matters covered in the Bill as quickly as possible.

The sponsors of the Bill acknowledge that its provisions dealing with criminal insanity have been copied from the Henchey report — to which I referred earlier — in order to deal adequately with any specific area. But many developments have occurred since the publication of that report which should be taken into account. I hope Deputy McDowell will not mind my referring to his professional capacity beyond this House. I have no doubt that he would have professional knowledge of such developments and the necessity to take them into account to ensure that we produce effective, appropriate legislation in this area.

The Bill also includes provisions in relation to bail. I have no doubt that there is not one Member of this House who does not have concerns about our present bail laws. I have tabled a number of parliamentary questions to the Minister or made inquiries by way of private letter in this respect. We know that the Government is equally concerned about the law in this area and has referred the matter to the Law Reform Commission. Most members will have had recourse to the Law Reform Commission in other areas where there is need for legislation and have been guided by it. The Minister has assured the House that the Government will have no hesitation, if necessary, in holding a referendum on this matter if it is felt that is the best way to proceed. Indeed, it makes no sense at this point for us to endeavour to tinker with the law in this regard before the Law Reform Commission has reported.

Part V contains a number of provisions about the right to silence. I do not accept it is the right of a career criminal to go about his business without hindrance because most of them know very well how to use or abuse the protections at present provided in our laws for the innocent. At the same time, I wonder whether the provisions in this Part of the Bill do not go somewhat too far since one interpretation would lead one to the conclusion that they would turn this into a police state. For example, I would be very worried by the proposals to involve our courts in the investigation of crime before anyone is charged. Those are two matters I should like clarified when Deputy Michael McDowell is responding or, if he has not sufficient time, perhaps he would put pen to paper in order to do so. While all of us want to see the guilty convicted we must be careful to avoid incorporating anything in our laws which would achieve nothing more than rendering it more likely that we would convict the innocent.

The sponsors of this Bill have provided us with a very useful opportunity to discuss a number of matters of concern to us. I accept the Minister's view and that of the Government expressed in her contribution earlier, that the most effective approach would be to await Government proposals in these areas. Anybody familiar with the record of this Government on criminal law reform will be confident that such proposals will be produced as speedily as possible. I might remind the House of that record. For example, we have had the Criminal Justice Act, 1993 which in many ways represents a victim's charter in our criminal justice system when, for the first time, unduly lenient sentences can be appealed. A court is obliged to take into account the effect of the crime on the victim before deciding on a sentence for a violent crime. In addition, the courts now have statutory power to order an offender to pay compensation to the victim.

Perhaps the most important criminal law reform, for which all Members of this House had pressed, was the Criminal Justice (Public Order) Act, 1993, whose provisions, at long last, allow the Garda and the courts to deal effectively with those who misbehave in our society without any regard to the rights of others. Another legislative measure worthy of mention is the Criminal Justice (No. 3) Bill, the provisions of which, for the first time, enable our courts to confiscate the profits of the so-called godfathers of crime. That legislation will also enable us play a proper role in the fight against international crime. The Bill had long been awaited and was welcomed by most Members of the House. While we may have concerns about any one aspect of any Bill before the House — and it is only natural that we would — the confiscation of profits of the so-called godfathers of crime represented a very welcome step.

I have mentioned those three examples but there are many more which might be cited as evidence of this Government's commitment to a major programme of criminal law reform. In such circumstances I am more than happy to accept the Minister's assurances that, where the present Bill deals with areas in need of reform — which we all recognise — the Government will bring forward effective proposals as speedily as possible. Those of us who have been involved in reform of the criminal law system since this Government assumed office will recognise the Minister's willingness to accept suggestions from all sides of the House in relation to amendments and so on. We have witnessed that willingness in particular in the committee of which I am convener, that is the Select Committee on Legislation and Security. Here I should like to record my appreciation to the Minister and the Minister of State, present this evening, who have devoted much time and effort, who were open and frank with Members of the House on all aspects of legislation with which they have dealt and which should not go unnoticed. It is only proper that I should record their great achievement in getting all Deputies to participate enthusiastically——

Mr. Flanagan

The Government side will have no problem since Friday last; they will all be over. Today I saw 25 Fianna Fáil Deputies marching out of here at 4.50 p.m.

An Leas-Cheann Comhairle

Deputy Callely without interruption.

Mr. M. McDowell

Deputy Flanagan was suggesting that an electronic tagging system be installed.

Mr. Callely

I will choose not to comment on the electronic tagging system although I am sure there will be much comment on it. There could be a benefit from having it installed in this House.

As convener of the Select Committee on Legislation and Security I am happy to say that we always had a quorum and full attendance on the part of Fianna Fáil and Labour Members. No doubt most Members will agree that the four new legislative committees have proved very successful in having Members participate in the best interests of drawing up effective legislation and which included the full and frank contributions of the Minister and her Minister of State.

While joining many other Members in commending the sponsors of this Bill it is my belief the House will accept the approach outlined by the Minister for Justice, that it would not be appropriate to accept the Bill as presented to this House. I hope Deputy Michael McDowell will comment on Members' concerns about the capacity of the Bill to deal adequately and effectively with matters on which we appear to be united. It is only a matter of bedding them down in a correct and proper fashion and waiting for the Law Reform Commission to report on other areas on which they have been asked to report. I would like to contribute further but my time has run out.

Mr. M. Ahern

Like other Deputies I am glad of the opportunity to debate the issues in the Bill. It gives us all an opportunity to influence the proposals which the Government intends to bring forward. One of the greatest causes for frustration for the Garda and the general public are our bail laws. As a result of the Supreme Court decision, bail can only be refused on two grounds, where a person is unlikely to turn up for trial or is likely to interfere with witnesses. The fact that an accused is likely to commit further offences, no matter how serious, cannot be used by the courts as a ground for refusing bail. We have one of the lowest figures in the Council of Europe countries for the number of prisoners on remand per head of population and the obvious explanation for this is that we have one of the most liberal bail regimes.

This is why I am glad the Government recognised the serious problems in this area and referred the matter to the Law Reform Commission. I suspect that the only real solution in this area — rather than tinkering around with existing law as the Bill proposes — is to change our Constitution. I welcome the Minister's assurance that the Government will have no hesitation in putting an amendment to the Constitution before the people if it concludes that this is the most effective approach. I am sure the people will have no hesitation in supporting such an amendment.

Our laws on criminal insanity date back to the last century and are clearly in need of reform. This is a very complex issue and I am pleased to note the Government is giving priority to bringing forward proposals which will go beyond what is proposed in the Bill. People are worried that a guilty or insane verdict is a soft option. I am not sure that that is the case in practice but there is a pressing need to update and clarify the law in this area.

I accept the objection the Minister for Justice had to the section which would require the keeping of a register, to be available for public inspection, on temporary releases. This would go against the grain of the process of rehabilitation and would serve no social good.

I congratulate the Minister on publishing last week a five year plan for the management of prisons. This is the first time such a document has been published. It is frank and enlightened and contains proposals to put an end to the so-called revolving door syndrome of unsupervised releases. I hope we get an opportunity at an early stage to debate that plan either in the Chamber or in the Select Committee on Legislation and Security.

The part of the Bill on criminal procedure contains some worthwhile proposals which merit further consideration. For example, the provision on depositions in the District Court is open to abuse and, indeed, is being abused. I understand this is a matter the Minister will deal with in a miscellaneous provisions Bill which she will be bringing forward in the autumn.

I am worried about some of the provisions in that Part which impinge on the right to silence. In particular I oppose the idea of involving our courts in the investigation of crime before anyone has been charged.

I do not think anyone could doubt the Government's commitment to criminal law reform. Only this morning the House dealt with Seanad amendments to the Criminal Justice (No. 3) Bill and that legislation goes to the President for signature. This was the latest in a long line of criminal law reform and contains draconian sanctions particularly against drug pushers.

The Minister has promised further measures and, on a personal level, I regard the introduction of a new juvenile justice Bill as a priority. I understand that this will be a substantial Bill and will replace in its entirety the Children Act, 1908.

I commend the sponsors of this Bill but, for the reasons the Minister gave in her response, I cannot support it.

An Leas-Cheann Comhairle

I regret I cannot call Deputy O'Keeffe. In accordance with an order of the House today I must call Deputy Michael McDowell to conclude the debate.

Mr. M. McDowell

I regret that Deputy O'Keeffe has been excluded by the bell from contributing but doubtless he will find another opportunity when the much heralded ministerial Bill comes before the House to make a contribution.

I thank the Members who contributed to this debate. I was surprised by the reaction because apart from aspirants to the office of Minister of State who took the departmental line, I noted carefully that the general thrust of Private Members' contributions, particularly those who spoke without the assistance of scripts, was supportive and positive towards the Bill. It would be difficult to reply to many of the points made in the short period available to me but on the bail issue there is no doubt that there is grave dissatisfaction on all sides of this House.

The O'Callaghan decision, which was much criticised here, was handed down at a time of greater innocence, greater optimism and jurisprudential development when the Supreme Court was in an activist stage. Doubtless in the 1960s it made sense to experiment with a more liberal regime when many people were spending up to a year in custody awaiting trial. We should bear this in mind in the context of any proposal to amend the Constitution. To remand somebody in custody and at the end of six, eight or 12 months to put them out on the street and say to them you are sorry you cannot go ahead with the case or, alternatively, say that the person has got a verdict of not guilty, is a huge injustice.

It is easy for people to demand further incarceration of people in custody while their trials are pending. From my perspective I am dubious about the desirability of a referendum. It may be macho to suggest we will reverse all this but it would be far better to experiment along the lines proposed in Part II of this Bill, to make bail more realistic and to put a legislative mechanism in place. To deny bail simply on common sense that somebody will not go bail for a person whom he or she really believes will commit an offence while on bail is much more sensible than allowing bail to be denied wholesale because the Garda tenders evidence to the court that there is a fear the accused would commit a further offence while on bail.

A point worth bearing in mind on the bail issue from the civil libertarian point of view is that the greatest cause of injustice is where somebody makes a false confession. Experience has shown that the greatest single factor in inducing people to make false confessions is the suggestion that they will not be going home to their wife and children that evening. If a bullying garda — I hope there are not too many of them — or an over-zealous garda tells an individual that if he or she does not make a statement they will be in jail for the next six months irrespective, because the granting of bail will be opposed — it happens in jurisdictions where the police have a significant role in deciding whether people do or do not get bail — there is a huge danger that people will make confessions to offences they did not commit. People are genuinely frightened about bail being denied to them in those circumstances. That is my one concern about a referendum which would sweep away all of the O'Callaghan decision and throw the baby out with the bath water. It was an over optimistic decision and was defective. In general terms, the principle that people should not be put into custody merely because they are accused of a crime is an important one. At the same time, the proposals set out in Part II of the Bill make a significant shift against abuse of bail which, when taken in conjunction with the consecutive sentencing provisions of the 1984 Act, would reduce substantially the possibility that people would commit further offences while on bail.

On the contributions made about the right to silence, it is peculiar that those who took the departmental line expressed views in their scripted comments which were dubious and cautious on any change. The right to silence is a misnomer. What is recognised by our law is the constitutional right not to be forced to incriminate oneself by one's words.

The right to silence is loose phraseology which is misunderstood. Nobody is suggesting that people should be put on a rack and forced to confess to their offences; what is being suggested is that if a person does not mention something when an investigation is ongoing and produces it as an explanation to rebut circumstantial evidence at his trial the jury should be entitled to ask why the person concerned did not give this explanation at a time when it would have been much more rational to do so. That would be a reasonable change and we should adopt it.

An accused person has the right to sit through a criminal case on indictment, which is a serious and solemn matter, and say at the end of it that he does not propose to respond or participate, that he should be counted out of the process, that it was very interesting to listen to the case against him. This leaves a jury wondering whether the person has an explanation or what it could possibly be. Bearing in mind that an accused person was not allowed to give evidence until the 19th century, we have now reached the stage where it would be entirely rational to tell an accused person that he is obliged to participate in the trial and asked at the end of the case to give his side of the story. No substantial injustice would obtain if such a provision formed part of our law. The courts would protect people and ensure that they would not be prejudiced unfairly by reason of their being compellable to give evidence at their own trial.

All a jury would be entitled to do, if they do not give evidence, is draw an adverse inference against them. It would not be unfair to draw such an inference from their silence. If somebody wants to give an explanation as to why they will not answer questions — perhaps they want to protect somebody else — let them say that under oath and let the jury draw an inference as to whether they believe it but somebody should not be allowed to sing dumb at the end of a long trial and escape justice due to non-participation. I agree with Deputy Flanagan in that regard.

Deputy Flanagan mentioned a number of alternatives to a term of imprisonment. Perhaps this is due to the absence of a statutory framework but I am convinced that the judicial system does not deal adequately with the possibility of handing down partly suspended sentences. It would make sense and cure recidivism if accused people were sentenced to four years' imprisonment plus four years for a spate of burglaries and if they realised, having spent four years in prison, that they would be "done" if they committed another serious offence thereafter when the second period of four years would be reactivated. Creative sentencing would have a more significant effect than many of the proposals which have been suggested from time to time.

In relation to the record of the Department of Justice, it has been stated that this Government has been more active than previous Governments, which is true. During the term of office of the Fianna Fáil-Progressive Democrats' Coalition I was vocal about the absence of legislative activity on the part of the Department. I am aware that I riled some of the civil servants in pointing this out. To be fair it all depends on the political masters of the Department but its record has been patchy in reforming our criminal law.

I agree with several of the contributions that we would be better off if we had a specialist criminal law revision committee along the lines of the English model rather than a general Law Reform Commission. The English experience proved beneficial. By contrast our Law Reform Commission would have plenty of work to do in other spheres. The Whitaker report contained a specific recommendation that a specialist body should be charged with the responsibility of reforming our criminal law. This would be a good idea.

The Progressive Democrats brought before the House a Private Members' Bill which dealt with the question of public order. It received a frosty response initially from the Minister but by the end of the two week debate there was a change in tone and we were informed that she would introduce her own Bill. Although some of her remarks about our Bill were tough the Bill produced by the Minister mirrored much of what we had said. I do not say this with rancour; the issues which are important in reforming our criminal law are not those which are media driven such as appealing lenient sentences. As far as I am aware, no lenient sentence has been appealed since that Bill was introduced. It is a dubious change in our law that a particular sentence may be increased when there is a public outcry, especially when it is driven by ignorance of the facts which determine the judge's decision. However, it has had no practical effect.

I am also dubious about the law which provides for the confiscation of the assets of drug traffickers, not that I am against it — I am in favour of it — but I do not believe that the money will be found to be confiscated. Compensation orders have now been put on a statutory basis but everybody who has practised criminal law during the past 20 or 30 years and before knows that the Judiciary made compensation orders on its own account for decades and that the practical effect of that change is not as significant as the real issues such as bail and the right of silence which relate to serious crime.

Every single portion of this Bill was tendered seriously. If it is possible to bring a suspect into a police station and interrogate him or her for four hours on the trot and produce a record at a criminal trial I can see nothing wrong with bringing them before a district justice and asking them the same questions in open court where there can be no arguments about inducements or threats. There would be clear evidence as to what the questions and answers were. It would be far better if the businessman who cannot produce any satisfactory explanation as to what happened to the £100,000 that disappeared from his company's accounts was confronted with that question in open court in circumstances where the jury would know that the account given was verbatim taken in fairly controlled circumstances and that there were no inducements.

People speak about civil liberties; I am mindful of these. Given my background as a barrister I am more mindful of them than people who think that lawyers are too concerned with these issues. Civil liberties apply to everybody; to the woman in her 70s living in an estate off the South Circular Road in Dublin who does not open her door any more at night and to old age pensioners who are beaten on the streets by young muggers feeding a drug habit. They also apply to those who live in corporation flats in this city whose lives are blighted by anti-social behaviour on the part of a small minority who live in the same place. Civil liberties apply to the victim as much as to an accused. The balance is wrongly struck against the victim and in favour of the perpetrator of crime. It is time this House stood up to the perpetrators of crime and redressed the balance in favour of the victims. That would not involve sweeping away centuries old and much cherished civil liberties, but would be a conscious effort on the part of a group of people who represent the victims of crime to address the real issues. This Bill does not address notional issues, but real problems with our criminal law and should be given a Second Reading. The Government should stop looking to review bodies on matters such as this. It is time it introduced legislation to deal with the crime wave and stopped avoiding its responsibilities because, to use the Latin maxim, salus populi lex suprema est, the welfare of the people is the supreme law. If the Government is not willing to counter the crime-wave, it ought to accept proposals from those who are.

Question put.

The Dáil divided: Tá, 41; Níl, 62.

Tá

• Allen, Bernard.
• Barrett, Seán.
• Boylan, Andrew.
• Bradford, Paul.
• Browne, John (Carlow-Kilkenny).
• Bruton, Richard.
• Carey, Donal.
• Connaughton, Paul.
• Crawford, Seymour.
• Cullen, Martin.
• Currie, Austin.
• Deasy, Austin.
• Deenihan, Jimmy.
• Doyle, Avril.
• Dukes, Alan M.
• Durkan, Bernard J.
• Finucane, Michael.
• Fitzgerald, Frances.
• Flaherty, Mary.
• Flanagan, Charles.
• Gilmore, Eamon.
• Harney, Mary.
• Higgins, Jim.
• Hogan, Philip.
• Kenny, Enda.
• Keogh, Helen.
• McDowell, Michael.
• McGahon, Brendan.
• McGinley, Dinny.
• McGrath, Paul.
• McManus, Liz.
• Molloy, Robert.
• Noonan, Michael.
• (Limerick East).
• O'Donnell, Liz.
• O'Keeffe, Jim.
• O'Malley, Desmond J.
• Quill, Máirín.
• Rabbitte, Pat.
• Ring, Michael.
• Sheehan, P.J.
• Timmins, Godfrey.

CLASS="CP">Níl

• Ahern, Bertie.
• Ahern, Dermot.
• Ahern, Michael.
• Ahern, Noel.
• Bell, Michael.
• Bree, Declan.
• Brennan, Matt.
• Broughan, Tommy.
• Browne, John (Wexford).
• Burke, Raphael P.
• Byrne, Hugh.
• Callely, Ivor.
• Davern, Noel.
• Dempsey, Noel.
• de Valera, Síle.
• Ellis, John.
• Fitzgerald, Brian.
• Fitzgerald, Liam.
• Flood, Chris.
• Foley, Denis.
• Gallagher, Pat.
• Haughey, Seán.
• Higgins, Michael D.
• Hilliard, Colm M.
• Howlin, Brendan.
• Hughes, Séamus.
• Jacob, Joe.
• Kavanagh, Liam.
• Kemmy, Jim.
• Kenneally, Brendan.
• Kenny, Seán.
• Killeen, Tony.
• Kirk, Séamus.
• Kitt, Michael P.
• Kitt, Tom.
• Lenihan, Brian.
• Leonard, Jimmy.
• Martin, Micheál.
• McDaid, James.
• Moffatt, Tom.
• Morley, P. J.
• Moynihan-Cronin, Breeda.
• Nolan, M. J.
• Ó Cuív, Éamon.
• O'Dea, Willie.
• O'Donoghue, John.
• O'Hanlon, Rory.
• O'Keeffe, Batt.
• O'Leary, John.
• O'Shea, Brian.
• O'Sullivan, Toddy.
• Pattison, Séamus.
• Power, Seán.
• Reynolds, Albert.
• Ryan, Eoin.
• Ryan, John.
• Ryan, Seán.
• Smith, Brendan.
• Taylor, Mervyn.
• Treacy, Noel.
• Wallace, Dan.
• Walsh, Eamon.

CLASS="CP">Tellers: Tá, Deputies O'Donnell and E. Kenny; Níl, Deputies Dempsey and B. Fitzgerald.