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Dáil Éireann debate -
Wednesday, 3 May 1995

Vol. 452 No. 3

Private Members' Business. - Criminal Law (Bail) Bill, 1995: Second Stage.

I move: "That the Bill be now read a Second Time." I wish to share my time with Deputy Ned O'Keeffe.

Is that agreed? Agreed.

Over the past two years the quality of life in urban and rural Ireland has been all but devastated by wave after wave of remorseless crime. There is not any village, town, city or townland that has not felt the effects of the wave of crime sweeping through this country. Criminal activity on a scale which was once unthinkable has now become a grim and loathsome reality. Cruelty and depravity, of a nature which in the recent past was unacceptable, have become commonplace. This tide of criminal terror has overwhelmed the elderly and vulnerable and turned many of our streets into fearsome incubators of evil. It has been allowed to flourish in an atmosphere of legislative paralysis.

There is a widespread belief that our criminal justice system does more to protect the perpetrators of crime then to deter them. The flourishing body of jurisprudence on the rights of persons charged with criminal acts has all but eclipsed the sad plight of victims. To contemplate the continuation of a system of justice which imprisons the elderly and the vulnerable in terror in their own homes is unthinkable. A system of justice where wrongdoers appear to be licensed to roam the streets to plunder and pillage at will is equally unthinkable. The scales of justice need to be realigned to take cognisance of the reality of life and crime in modern Ireland.

In recent days public attention has been focused on the inadequacy of our bail laws. The RTE "Prime Time" programme highlighted the shortcomings of the present system and invited the Minister to appear and discuss her area of responsibility. She refused.

When the heat was on, the Minister who promised openness and transparency delivered absence. Unfortunately, absence was a welcome advance on the usual committee of procrastination which the Minister establishes in times of political pressure. It is an advance but it is not an answer. Above all else, the Irish people want an answer to one simple question — what is this Government's policy on bail?

On RTE's "Farrell" programme earlier this year, the Minister for Justice said there would be a referendum on bail. There is a grave necessity for such a referendum and I applauded the Minister for stating there would be a referendum on bail in the autumn in tandem with the divorce referendum.

The law relating to bail, relying for the most part on the case of the Director of Public Prosecutions v. O'Callaghan in 1966, is outdated. The reason is that the nature of crime has changed and laws based upon either the 1966 case or the Ryan case of the 1980s are inadequate today. For example, a quarter of a century ago the use of prohibited drugs was virtually unknown here. The concept of drug addiction was foreign. It was unthinkable that Irish cities and towns might go the way of New York, London or Amsterdam. Sadly, the past two decades have seen the menance of serious drug addiction spread its evil tentacles into virtually every city, town and village. Crime, the inseparable by-product of addiction, has become endemic. A tide of violence has overwhelmed the elderly and many are forced to live as prisoners in their own homes. Directly or indirectly, each one of us has been affected by crime and the time has come to bring in measures in our criminal law to deal with what is an entirely new situation.

I ask the Minister, and through her the Government, to outline the Government's policy on bail. When pursued by me on this question in this House, neither the Taoiseach nor the Tánaiste would back the statement by the Minister for Justice that there would be a referendum on bail this year. This leads me to the conclusion that this Government may not have any policy on bail but if it has such a policy, I want to know whether the Minister has the permission of the Tánaiste to come into this House and announce it.

The absence of the Minister from the "Prime Time" programme has reinforced the view held by many in this House that since she embarrassed the Government by announcing an unauthorised referendum, she has been muzzled — and the Tánaiste appears to hold the key. The people deserve better — whatever about the Tánaiste — than a Minister for Justice who is on political probation, guarded by a division of handlers, managers and advisers lest she upstage the Tánaiste or give an unattributable interview as to the full extent of her admiration of the Tánaiste and his methods.

The recent attempted political assassination of the Minister by the Tánaiste reveals the true nature of the workings of this Government and its replacement of policy development with what I can only describe as governmental guerrilla warfare. Meanwhile, crime rampages unabated while members of the Government seek to publicly undermine each other.

The Government has failed to lead in the fight against crime. It has failed to implement any proposal, to announce any initiative or to form any policy. Recent figures show an extremely serious growth in the incidence of crime committed by people while on bail. It is useless, therefore, to point the finger at these benches and say that this measure should have been brought in two years ago. The truth is that the incidence of crime on bail has increased dramatically in the past year and it is the duty of this Government to legislate for that.

Since it cannot lead I invite the Government at least to follow. I invite it to consider the plight of tens of thousands of people who have become prisoners of terror in their own homes. I invite it to consider the thousands of small businesses whose existence is threatened by the ever escalating costs of theft and vandalism. I invite it to think of the victim rather than the perpetrator and to support Fianna Fáil's initiative.

This Bill represents a considered and measured response to the inadequacies of the present laws relating to bail. It represents a necessary and legitimate recalibration of the scales of justice to take account of modern reality. It codifies and extends the law on bail, spelling out in precise terms the powers a court will have. It proposes a number of practical, enforceable and permissable restraints on the nature of the liberty a person charged with a criminal offence may enjoy.

There is an erroneous perception, fuelled to a great degree by the Minister's impromptu announcement of an as yet unformulated referendum, that there is a constitutional right to unrestricted bail pending trial. That is not so. The constitutional status of bail was spelled out with great clarity by Chief Justice O'Higgins in 1975 when he stated (in re Criminal Law (Jurisdiction) Bill, 1975, reported at 1977 I.R. 129 at page 154):

What is termed a right to bail is not a constitutional right but a recognition by the Courts that a person presumed to be innocent shall not have his liberty interfered with unnecessarily pending his trial on a criminal charge.

There is no constitutional right to commit crime. There is no constitutional right to unrestricted bail pending trial and only unnecessary interference with a person's liberty is prohibited by the Constitution. The measures in this Bill are necessary, fair and constitutional. It is not possible for me to provide that the court can refuse to grant bail on the basis of a likelihood of the accused committing an offence while on bail. Only the people through an amendment to the Constitution can do that. The law is very clear, that bail may be refused if the individual is likely to abscond and escape justice or if he or she is likely to interfere with witnesses. It will take a referendum to allow a court to refuse bail on the likelihood of an individual committing a crime and I unreservedly call for such a referendum. In the meantime I have produced a Bill which deals with the situation within present constitutional parameters. If the parties in this House decide to defeat this Fianna Fáil Bill, everyone will know that all of the tears shed about a referendum on bail and tightening bail laws were crocodile tears shed in Opposition and in the case of the Minister, in Government. I always suspected that crocodiles cry most on shore.

The measures in this Bill fall into four broad categories. First, it codifies the existing common law position. In this respect there is a need for the Department of Justice at some time, I hope in our lifetime, to codify the criminal law. Restrictions which the courts have traditionally placed on the liberty of a person charged with a criminal offence are set out with clarity. Thus, the need for the accused person to specify where he will reside, to sign on at a Garda station and the requirements that he does not interfere with witnesses all restate the existing law. The requirement that an accused person surrenders his passport is neccessary to remove the undoubted uncertainty in relation to this power.

At the conclusion of the preliminary examination in the District Court in the "X" case the presiding judge, a judge of considerable experience and seniority, refused to insert a requirement that the accused man surrender his passport on the grounds that he did not have power to do so. This Bill removes such doubt and clarifies the law. There can be no objection to that.

The second category are provisions in aid of the victims of crime. The Bill empowers a court to prohibit, as a condition of bail, the accused person from attending at the home, the place of work or any specified place where a victim might socialise until the conclusion of the case. This is a limited and necessary restriction on the liberty of an accused person. It is necessary to realign the scales of justice and prevent victims having to further disrupt their lives whilst awaiting the commencement of the trial. Where a decision has to be taken as to whether the victim or the accused person must suffer social inconvenience in the run up to the trial Fianna Fáil is unashamedly on the side of the victim.

In addition, in further aid of the victims of crime, the Bill seeks to empower a court to exclude an accused person from certain premises and location. If an accused person is charged with robbery at an Allied Irish Bank the court could prohibit him entering any branch of that bank or, if deemed appropriate, any other financial institution. If a person is charged with shop-lifting in Grafton Street the Bill would permit the exclusion of the accused person from a specified street or area until the conclusion of the case. Again this is a limited and necessary restriction on the liberty of the accused person. It is necessary to enable others to pursue their constitutional right to earn a livelihood without the fear of repeated plunder. The third category proposed by the Bill are measures directed at an accused person. The courts would be empowered to make a curfew order between 9 p.m. and 7 a.m. in the case of adults or 7 p.m. and 7 a.m. in the case of persons under 17 years. The courts would also be permitted to require an accused person to enter a bond to keep the peace and be of good behaviour pending trial. This provision is designed to give statutory effect to the fact that there is no constitutional right to possess and consume drugs. It also provides for the monitoring of accused persons to ensure compliance with their terms of bail. If the accused person has a drugs problem the court will assist him in obtaining treatment. If the person refuses treatment and seeks to feed his habit by theft this Bill places obstacles in his way and provides for his re-arrest.

It is important to point out that much crime is committed by people who unfortunately are drug addicts and are on bail. An addict with a modest drug habit will need between £50 and £100 per day to feed his addiction. Many will consume up to £200 worth of heroin each day. Invariably this money is acquired from crime. A drug addict stealing cash through muggings or robberies needs to steal between £18,000 and £40,000 a year. In many instances the amount required will be greater and, in some cases, as much as £75,000 per annum is required. If an addict tries to fund his addiction through the theft of goods from houses or shops the amount of goods he needs to steal will increase dramatically as stolen goods are frequently sold at a fraction of their true value. An addict who wants £20 in cash must steal goods worth £100 or more. The harsh reality is that each serious drug addict is a one man crime wave.

Addiction is an illness and drug addicts are entitled to our assistance and sympathy but they are not entitled to an ongoing licence to plunder and terrorise. If addicts cannot remain on our streets without constant recourse to theft they must be removed and treated.

The Bill prohibits temporary release by the Minister of any person serving a sentence in respect of an offence committed while on bail. The final category of measures proposed by the Bill is directed at persons who offer themselves as a surety for an accused person. Bailspersons will be obliged to enter into a bond to guarantee compliance by the accused person with all the terms of the bail order. Thus it would be the responsibility of a bailsperson to ensure that the accused was of good behaviour. If the accused person committed an offence while on bail the bailsperson would forfeit the money lodged or pledged.

The Fianna Fáil legislation is framed within constitutional parameters. It is careful to strike a balance between civil liberties and the right of the general public to be protected from crime. The Minister should take this opportunity to clarify the Government's position on a bail referendum. No amount of political tension within the rainbow coalition on the issue should deny the people the right to openness and transparency. In the final analysis, the Government should be concerned with accountability, not the saving of political skins. Political foot dragging, prevarication, procrastination and indecision are of little comfort to the victims of crime. The massaging of political muscles to assuage tensions on the issue of bail within the rainbow coalition appears to be the prerequisite rather than tackling crime in a meaningful way. I am coming to the conclusion that this Government is in front of everything and behind nothing.

The measures proposed in the Bill are reasonable, considered and legitimate. They are necessary to restore balance to the criminal justice system. They are pro-victim and anti-crime. I invite support for the measure from all in the House who wish to assist in the battle against crime. The time has come, especially in the light of recent events, to expose this Government's lack of resolve on the issue of crime. The fact that Fianna Fáil had to publish a Bill on bail illustrates the Government's legislative paralysis. The failure of the Government to support this Bill will be a serious indictment of its capacity to govern for the safety of people's bodies, lives and property.

I support Deputy O'Donoghue in bringing forward this Bill. Bail is a concept enshrined in our law to balance the rights of the accused against the rights of society at large to be protected and to live in harmony. From time to time reassessment of the checks and balances enshrined in our laws is required. Crimes of violence against persons and property are on the increase. People do not bother to report some crime because they get little or no satisfaction. The gardaí are frustrated and angry with us, the Legislature, for inaction. They need help. They do not understand why we delay and prevaricate. We are well aware of the many instances in the courts where the gardaí rather than criminal are on trial. Nothing is done to help them.

The present laws, in practice, reflect the Supreme Court judgment in 1966, almost 30 years ago. In 1966 we did not speak every day, if at all, of drugs, muggings, robberies and kidnapping. Sadly today we speak of many of these evils.

Many citizens — the disabled, the old and not so old — live in fear. It is a sad reflection on our Government and on society. The court's reserve judgment, no matter how proper, even now reflects, as it must, laws that are badly out of date.

The jurisdiction of the courts to grant bail is covered by common English law, the Petty Sessions Act, 1851 and the Criminal Procedure Act, 1967. The right to liberty is enshrined in our Constitution which is now almost 60 years old. However, it should be noted that the landmark 1966 judgment set out the fundamental test, that is, the likelihood of the prisoner attempting to evade justice. Mr. Justice Murnaghan enumerated 11 matters for consideration in applying that test.

The 1966 objection to bail being granted, which failed, covered only one of the 11 points — No. 4 —"The likelihood of the commission of further offences while on bail". Point No. 10 which was related to bailsmen was not commented on and is now a principal feature of the Bill. For completeness I will quote the 11 points from the case of The People v. Roger O'Callaghan which is reported in The Irish Reports of 14 October-8 December 1966 — at pages 503 and 504:

There are a number of matters which may be, and should be where appropriate, taken into account by the Court in considering whether or not it is likely that the prisoner may attempt to evade justice. These I enumerate as follows:—

1, The nature of the accusation or in other words the seriousness of the charge. It stands to reason that the more serious the charge the greater is the likelihood that the prisoner would not appear to answer it.

2, The nature of the evidence in support of the charge. The more cogent the evidence the greater the likelihood of conviction and consequently the greater the likelihood of the prisoner attempting to evade justice.

3, The likely sentence to be imposed on conviction. The greater the sentence is likely to be, the greater the likelihood of the prisoner trying to avoid it. The prisoner's previous record has a bearing on the probable sentence and consequently must be before this Court.

4, The likelihood of the commission of further offences while on bail. In this connection, a prisoner facing a heavy sentence has little to lose if he commits further offences. A prisoner may consider that he has to go to prison in any event and in an effort to get money to support his family may commit further offences.

5, The possibility of the disposal of illegally acquired property. Stolen property may be stored or cached away.

6, The possibility of interference with prospective witnesses and jurors.

7, The prisoner's failure to answer to bail on a previous occasion.

8, The fact that the prisoner was caught red-handed.

9, The objection of the Attorney General or of the police authorities.

10, The substance and reliability of the bailsmen offered. (This is primarily a matter for the District Justice).

11, The possibility of a speedy trial.

This Bill is mainly about bail terms and addresses some of the causes of crime. Drug law enforcement is very important and requires further resources in terms of manpower, legislation and rehabilitation centres adequately staffed by trained medical personnel. I am sure the Minister agrees with that sentence and the need for more manpower, legislation, adequately controlled centres and trained personnel to deal with a growing and dangerous problem facing society.

Crimes are committed while people are out on bail as the criminal may feel that there may be little or no additional sentencing involved. Criminals and potential criminals are not too worried about bail or sentencing. They defy the Garda Síochána, who know most of them, because when they are caught they get bail and when sent for trial they have a good chance of acquittal. Because of lack of evidence and regardless of whether the Garda know they are guilty, the reason these wrongs remain unpunished is the so called right to silence.

The Government claims to be strong on law and order. If this is so it should modify the right to silence. I ask the parties in Government with liberal agendas to be even more liberal. I ask the Minister to think of the Garda Síochána who seek to carry out "mission impossible"— trying to put known and blatant criminals behind bars. I ask the Minister to think of her own home and family. The Minister, her constituents and the rest of us we have the right to be protected from murder, manslaughter, death, kidnapping, injury, robbery, burglary and theft all of which are now the order of the day throughout the country. We all pride ourselves on the safe havens of rural Ireland but it is as dangerous to live in rural areas as in Dublin. That strengthens the argument of my colleague, Deputy O'Donoghue, in bringing the Criminal Law (Bail) Bill before the House, to ensure the safety of all decent citizens in their homes.

It is the Minister's solemn duty to maintain and protect the rights of the 3.4 million law abiding citizens living in this State. We have the right to a peaceful existence. This comes as a stark reminder following the second attempted kidnap of a family in County Wicklow last night. They were having a quiet night when they were attacked in their home but, because of lessons learned from their previous experience, were safe. I compliment the Garda on calling to the home without delay. I compliment also the lady of the house who had a mobile phone and showed great courage. As far as I can see one would almost need a bunker to be safe.

The Bill deserves the support of the Government parties. In Opposition the parties in this rainbow coalition spoke with diverse tongues, one side espoused traditional law and order values, the other — without expecting to have to make a decision spoke glowingly of the rights of the accused. Will the Minister, whose party espouses law and order, amend the bail laws and take away the right to silence? If the Government still favours law and order this Bill is their chance and all constructive amendments will be welcome. We do not need more reviews, second opinions or any other delaying tactics. We need action and this Bill is only a step on the way to the right to peaceful nights.

This is the first Private Members' Bill of substance to have come before the House since we went into Opposition. When we were in Government many Bills came before the House. This is a solid Bill and has the support of our citizens who look to us to introduce stiffer penalties.

I appeal to the Minister and the Government to act but they will have a difficulty in this regard as Deputy Kemmy will talk about civil liberties and shed crocodile tears. The people are entitled to their freedom and to walk the streets cities and towns. Democratic Left will probably have the same liberal agenda but in the last few days we have seen a major swing to the right when the Minister of State at the Department of Enterprise and Employment, Deputy Rabbitte, who is now known as the banker's friend, said he has no hang-up about banks.

As Deputies will be aware I have some prepared information to give to the House but I wish to refer first to points made by the Opposition. I do not think Members would expect me to ignore some of the things they said. It was not in my nature to do so when I was on their side of the House and I will not do so now. Deputy O'Donoghue as Opposition spokesperson for Justice, with the plethora of advisers and PR people his party has hired, has been given an instruction to ignore the issues and find a few good buzz words. That is not the kind of constructive opposition that Fianna Fáil promised when it found itself pushed into Opposition. I saw constructive opposition not from the Fianna Fáil spokesperson on Justice but from Deputy Ó Cuív who, graciously and with courage, thanked me for introducing a Bill for which he had lobbied so hard behind the scenes when his party was in office. His party failed to introduce it and Deputy Ó Cuív had the good grace to welcome the Bill.

Deputy O'Donoghue's way of dealing with it was to find a few buzz words, for example, "muzzled", "embarrassed", "lethargy" etc. It was as if he was given a Thesaurus as his first present as spokesman on Justice and was working his way through it until he found many derogatory words to use. I got a good sense of what Deputy O'Donoghue, as a solicitor, thinks of our justice system when I heard his "top off the head, seat of the pants" reaction to Mr. Justice Geoghegan's judgment last week — he said it was a bit troublesome and expensive for people going through the system to go from the District Court to the Circuit Court. That amounted to undermining the justice system that the former leader of his party, the great Éamon de Valera, introduced; it is his Constitution we are talking about and Deputy O'Donoghue should remember that.

I wish to comment also on the comment of Deputy Ned O'Keeffe. It was not today or yesterday that the Garda expressed anger and frustration at the way our bail laws operate, and Deputy O'Keeffe should know that better than anybody in any other party because his party had it in its power during the past seven years to do something about it. Deputy O'Donoghue absolved Fianna Fáil of responsibility for the increase in crimes committed by people out on bail to the point where he tried to imply that the incidence of it only started to rise in the past few months since his party left office. However, the figures have been increasing since 1990 — I will deal with them in my speech. If Deputy O'Donoghue does not know that, he does not deserve to be in the position he is in because it is his business to get such information. Whatever criticism is levelled at me, or any member of this Government, it cannot be said that somehow or other until January 1995 our society was free of crime and free of people committing crimes while on bail. The statistics show, sadly, that crime is growing inexorably here as it is in all democratic societies. It is my job as Minister for Justice to operate under existing powers and find ways to reduce the level of crime in our society.

The Minister should increase the powers.

Earlier today Deputy O'Donoghue asked questions of the Taoiseach as if there was a panacea, one single legislative step that I or another Minister for Justice could take. Does Deputy O'Donoghue think that if there was one answer Ministers of Fianna Fáil or of any other party would not have incorporated it in a Bill? Hundreds of Acts are used to fight crime in our cities, towns and rural areas.

What about the people in Wicklow last night?

When speaking about the attempted kidnap of his friends last night, Deputy Ned O'Keeffe had to restrain himself and remember to praise the Garda Síochána for their action in that incident. In thousands of instances, the Garda have been effective in stopping crime in this society. Fianna Fáil has, like my party, been in existence almost since the foundation of the State and its members would do well to avoid creating the impression that somehow or other the Garda Síochána are not doing their job. Every time Fianna Fáil Deputies criticise something that has happened they are subliminally saying the Garda are not doing their job, and they had better remember that.

What about Lansdowne Road?

All we ask is that the law be strengthened.

There are all sorts of illnesses in our society but the one that Deputy O'Donoghue is certainly suffering from is strategic amnesia.

That argument will only last so long.

I suspect the Deputy does not talk very much to his colleague, the former Minister for Justice, Deputy Geoghegan-Quinn, because there was not one reference to actions she took, or should have taken, when she was in Government. If I can find a cure for the Deputy I will let him know.

That is an outrageous statement. All I ask is that the Minister strengthen the law.

It should be clear by now that I share the public concern that our bail laws are being abused and I had this concern before becoming Minister for Justice. Every Member knows people who have suffered from crimes committed by persons on bail. The number of crimes committed by such people has increased from 2,494 in 1990 to 4,416 last year, while the last Government was in office. My concern is to tip the balance against the criminal and protect the public.

I was glad to hear Deputy O'Donoghue call for a referendum on this issue. He said there had been a public debate in recent times about bail but it was I, as Minister for Justice, who started the debate, not Deputy O'Donoghue or anybody else.


I welcome Deputy O'Donoghue's support and I am glad he shares my concern — I assume he is speaking for Fianna Fáil. As a Deputy and a solicitor he knows that at present the only two grounds on which bail can be refused are if there is a danger that the accused will not attend court for trial or a danger that he or she will interfere with witnesses, jurors or tamper with evidence. They are the only constitutionally permitted grounds. Any proposal which might, in effect, operate to reduce the possibility of an accused obtaining bail which is unrelated to those two grounds is likely to be unconstitutional. Deputy O'Donoghue's Bill, where it goes beyond re-stating existing law — and much of the Bill is a re-statement — is just such a proposal. On these grounds the Government must oppose it. If there were a simple and foolproof way of strengthening our bail laws without a constitutional change I have no doubt that previous Ministers and Governments would have done it.

The Minister does not have the support of her Government. She does not have the support of Deputy De Rossa or Deputy Spring.

This Government's policy document, A Government of Renewal, provides for “an examination by the Law Reform Commission of legislation to allow courts to refuse bail where the court considers it desirable to do so”. I am awaiting a report from the Law Reform Commission on the law on bail and I hope to receive it soon.

The fact that the report was awaited was the reason my predecessor, Deputy Geoghegan-Quinn, rejected a Private Members' Bill which contained provisions on bail last year.

Deputy O'Donoghue must have forgotten to talk to his colleague, but, perhaps, if he is not speaking to Deputy Geoghegan-Quinn, he will consult Deputy O'Dea.

The Minister proposed it. Why not accept it now?

In the meantime, pending the Commission's report, all the advice available to me is that any substantial and effective changes require a constitutional amendment. I have instructed the officials of my Department to examine a form of wording for such an amendment. This will mean that I will be able to bring my proposals before Government for approval soon.

Deputy O'Donoghue referred to what he called my impromptu statement on the "Farrell" programme. Perhaps the Deputy does not bother about what I say in interviews, but I would have thought it was the logical thing for a spokesperson to do. If he followed the two extensive interviews I gave to the Garda magazines, and others, he would realise that my statement was not impromptu. I had clearly and carefully flagged my intention——

Deputy Costello's statement and that of the Labour Party was impromptu.

Deputy Costello is not the spokesperson for the Opposition. I made it clear in those interviews that it was my advice that a constitutional amendment on bail was needed and that I was hoping to proceed with it. In short, I share Deputy O'Donoghue's concern that the bail laws be tightened but the approach taken in this Bill is unlikely to be found constitutional.

Do Deputy Eric Byrne and Deuty Kemmy agree?

The areas dealt with are ones which could ultimately make a contribution to the rationalisation of the law, but it is impossible to divorce the question of possible statute law initiatives from the constitutional context in which they would take place. In the absence of facing up to the constitutional issue any legislative proposals are unlikely to do more than tinker with our law. Clearly, that is not a sufficient response to the problem.

I recognise that for their own political purposes some people seek to introduce a divisive element into every debate, but there is no mystery or confusion surrounding my approach to the question of amending the Constitution in relation to bail. This is ultimately a matter for the people to decide — I hope Deputies have respect for them — and I will bring my proposals before Government on this matter as quickly as possible.

Since becoming Minister for Justice I have not been content to adopt a "wait and see" approach. The issue is far too pressing and important to do that. Much of the advice available to me has indicated that it is unlikely that real, substantial and effective changes in this area can be made while the constitutional position remains as determined in the O'Callaghan case. A measure of the validity of that advice will be seen from what I will say later about some of the provisions. It was in the context of that advice——

Take a chance.

I find it unbelievable that a member of the Fianna Fáil Party, the great party of Éamon de Valera who founded the Constitution, would ask me to take a chance and bring forward a measure that would be deemed unconstitutional. Shame on him.

Take a risk; it would not be the first time a risk was taken in this House.

Éamon de Valera would turn in his grave if he could hear the Deputy. I instructed my officials to work on forms of wording which an appropriate amendment to the Constitution might take.

The fundamental question to be addressed is whether our bail laws under the conditions laid down in the O'Callaghan judgment are operating satisfactorily. There is a widespread view that they are not and it will be clear that I share that view. The nub of the problem is that, as things stand there is a clear temptation for serious offenders facing the likelihood of a long period of imprisonment on other charges to use their time on bail to commit further offences.

What is the Minister going to do about that?

There is clearly a need for balance in this area. I do not believe anyone would regard it as desirable to stand the present situation on its head and bring about a situation where, irrespective of the seriousness of offences likely to be committed, a general presumption would arise against the granting of bail. That could result in the incarceration of a large number of unconvicted persons, many of whom might subsequently be found not guilty. Other European countries are trying to reduce the number of unconvicted persons in custody on human rights grounds. We have by far one of the lowest remand rates among Council of Europe countries and this has its positive side in terms of the general desirability to keep the proportion of unconvicted persons in custody as low as possible, but it is probably that those figures arise at least in part because our bail laws are among the most liberal of these countries.

There is an absolutist view that no person should be held in custody prior to conviction, but, however liberal our bail laws might be perceived to be, we do not go that far. The courts may refuse bail to a person who is unlikely to turn up for trial or will attempt to pervert the course of justice. Most people would support that approach as a minimum, but that involves the courts imprisoning someone who may be guilty of a crime on the basis of a view of the likely behaviour of someone if he or she were to be released on bail.

It is not proper to suggest, therefore, that a situation where the courts can deprive unconvicted persons of their liberty on the grounds of belief about future behaviour would represent an entirely new development. The issue which arises is whether the court should have that power on the basis of its view of likely criminal behaviour unrelated to the questions of turning up for trial or perverting the course of justice.

The argument against such an approach is sometimes stated in terms of the damage this does to the presumption of innocence. Since the fact that a person is refused bail does not lessen the burden of proof necessary to secure a conviction at the trial, the presumption of innocence is not affected. That is the situation in the cases where bail is refused by the courts. What is at issue is whether society should reserve the right to protect itself by allowing a person to be deprived of his or her liberty while awaiting trial because of the fear that the person involved will commit further offences if released. In practice, any view of likely future behaviour would generally be based on past, probably persistent, behaviour. This is an issue which cannot be addressed in terms of abstract statements of principle. The conflicting rights of the accused and potential victims have to be reconciled in practice, not in theory.

Take for example the case of a repeat offender who has frequently committed serious offences while on bail but who has always honoured the bail by turning up for trial. As things stand, the courts may well be convinced that there is a strong probability that the offender in question will perpetrate further serious crimes — and add to the list of victims — if bail is granted but, because of the record of turning up for trial, the courts have no choice but to grant bail. When the proposition is put in those stark terms it will be clear why many of us believe that the system has to be re-balanced in favour of society and victims. This is all the more so as all of the recent evidence points to the fact that the initial success of the provisions of the Criminal Justice Act, 1984 about mandatory consecutive sentences for offences committed while on bail is being eroded. After that Act the number of detected offences committed by persons on bail dropped significantly but, unfortunately, they have been on the increase in the last few years. Between 1990 and 1994 the number increased from 300 to 4,000 approximately.

It will be clear to anyone who has studied this area of our law that the task of devising an appropriate wording for a constitutional amendment is complex. A key issue which obviously arises in relation to any wording is an assessment of its likely practical effect on the willingness of the courts to grant or refuse bail.

Strictly speaking, there is no constitutional right to bail. As the then Chief Justice said in the O'Callaghan decision: "What is termed a right to bail is not a constitutional right but a recognition by the courts that a person presumed to be innocent shall not have his liberty interfered with unnecessarily pending his trial on a criminal charge". For all practical purposes this might be seen as a distinction without a difference because in reality the granting of bail is the means whereby the right to liberty is not interfered with unnecessarily.

I mention this point in the context of formulating a wording for an amendment to the Constitution because we would have to assess what balance the court would decide on between the fundamental right to liberty enshrined in the Constitution and an amendment the effect of which would be, for example, to allow the court in considering whether to grant bail to take into account the likelihood of the commission of further offences. While many of us may take the view that we are not interested in bringing about a fundamental change in the bail regime for petty offenders and, broadly speaking, we want to go after those where there is a substantial risk of the commission of serious offences, we would have to be satisfied that any wording which we might adopt would be likely to achieve that end. I do not pretend that it will be easy to devise a formula to achieve a satisfactory wording but I do not accept either that it would be beyond the wit of the Government and this House to do so.

I am not overlooking the practical considerations which arise — for example in relation to implications of proposed change for prison accommodation. Obviously those implications would be greater or lesser depending on the precise nature of any proposed change.

I have tried in this debate to outline some of the background against which I am progressing this matter. I assure the House that I will do everything in my power as Minister for Justice to ensure that this process will bring about real results, that a problem which might be seen to have been around for the best part of 30 years, and which many now regard as unsustainable, will be tackled as effectively and comprehensively as possible. That commitment was not given by any Minister for Justice in the last seven years.

I propose now to turn to some of the detail of what Deputy O'Donoghue is proposing. Where I raise questions about his approach this is not done in any way as nit-picking. I well appreciate the pressures on individual Deputies in bringing forward legislative proposals and I hope that what I have to say may have some value in encouraging an informed debate on the difficult issues which arise.

My analysis of the Bill is that it has two main features: it seeks to put on a statutory basis the conditions which a court may attach to granting bail and to provide a procedure whereby bail money would be forfeited if any of the conditions are breached. As I mentioned earlier, there may be advantages at some stage in enshrining in our statute law the conditions which may be attached to bail provided, of course, they are in conformity with constitutional considerations. However, I wonder whether, with the exception of condition (i) in section 5 which I will deal with later, there is anything new of substance being proposed by Deputy O'Donoghue. In practice at present courts use their common law powers in many cases to attach conditions to granting bail — for example, reporting regularly to a Garda station. Most of the ten conditions in section 5 are of a kind in practice applied by the courts in particular cases at present. Any suggestion, therefore, that the Bill contains a whole series of new conditions which can be attached to the granting of bail would not be well-founded.

In making any changes to the law in this area it should be borne in mind it appears to be the case that the grounds on which conditions may be applied to bail at present must relate in some way to the grounds under which, constitutionally, bail may be refused at present: a danger that the accused will not attend court for trial or will interfere with witnesses, evidence or jurors. For example, while an obligation on an accused on bail at present to report regularly to the gardaí might act as an incentive to be of good behaviour generally, the legal rationale of such a condition would be likely to be based on the consideration that compliance with that condition would lessen the chances of failure to turn up for trial.

The question of whether it would be feasible to go beyond this approach in statute law and link conditions of bail to a view by the courts of likely or possible future criminal behaviour, unrelated to the offences which the person is accused of, raises complex issues and this is a matter which I expect to be dealt with in the Law Reform Commission's report which was requested by the last Minister for Justice, Deputy Geoghegan-Quinn.

Perhaps the most significant feature of the Bill is that it would allow the courts to apply a condition to bail requiring the accused to enter a bond to keep the peace, be of good behaviour and abstain from any form of criminal activity. Moreover, a bailsperson would be made responsible to the court for compliance with this condition and breach of this condition could lead to forfeiture of the bail money. Under the Bill breach of any other condition could also lead to forfeiture of bail money. However, I propose to concentrate on the questions of ensuring good behaviour and the position of the independent bailsperson as these probably give rise to the greatest difficulty, although similar considerations might apply in relation to the other conditions.

In relation to the bail money put forward by the accused I suspect that threatening to forfeit that in the event of the commission of an offence while on bail is unlikely to be a greater guarantee of good behaviour than the present arrangement where the person in question must receive consecutive sentences in relation to offences committed while on bail. The proposal that the courts should be able to forfeit bail if it is proved that the accused committed other offences while on bail is not a new one. It was examined some years ago in my Department and not proceeded with primarily on the basis of doubts about its constitutionality.

The Chief Justice in the landmark O'Callaghan case in 1965 said: "it must be borne in mind that the single question in all bail applications is: is the applicant likely to stand his trial. If yes, then he should be granted bail and set at liberty".

The import of the Supreme Court judgment in that case, and confirmed in the subsequent Ryan case in 1988, was that the likelihood of the accused committing further offences while on bail was not a ground which the courts could use to refuse bail. What is proposed in Deputy O'Donoghue's Bill would, at the very least, involve the court at the time of granting bail with the question of likely future criminal behaviour unrelated to the question of whether the accused is likely to stand trial or attempt to pervert the course of justice.

The advice available to me is that, under our present constitutional requirements, the courts would be unlikely to countenance such an approach. A condition which could, in effect, make it very difficult to secure a guarantor could be seen by the courts as a denial of bail and thus in conflcit with the right to liberty of the accused. An analogy can be drawn with the fact that the courts have said that the amount of money to be set in bail cases should not be such as to amount to a denial of bail.

Another aspect of the proposal which might give cause for concern on constitutional grounds is that a condition requiring a recognisance to be of good behaviour would be the equivalent of the accused being bound over to keep the peace. Indeed that would seem to be the effect of the wording used by the Deputy in condition (i) of section 5. At present this sanction is normally imposed when an accused has been found guilty of an offence. Under the Bill it would be imposed at a stage where the accused is presumed to be innocent. There must be at least some doubt whether it would be permissible under the Constitution to require an accused to enter into such a bond when he or she has not been tried for an offence.

Some practical issues also arise in relation to the proposal. The accused would have to be convicted of the other offences committed while on bail before the bail could be forfeited. Conviction might not occur until long after the trial for the original offence in respect of which bail was granted. This would require that the bail be "frozen" until after the trial for the subsequent offence or offences even where the accused had turned up for trial for the first offence and complied with the fundamental condition of bail.

In some cases the offences committed while on bail might not be detected for some considerable time after the trial for the original offence. In turn the trial for these offences might not take place for some time. One approach might be to "freeze" bail for a specified period after trial in all cases to allow for the possibility of offences committed on bail coming to light. It might be argued that, in all cases except where cash bail has been imposed by the court, the bailsperson would not be deprived of assets for that period. However, such an arrangement would tend to intoduce a fairly open-ended commitment for the bailsperson and the merits or viability of such an approach would be debatable.

Again, I expect that the issues to which the proposals put forward by the Deputy give rise would be among those dealt with in the forthcoming Law Reform Commission report. A point worth repeating is that there are doubts as to how far we can proceed with such proposals in our statute law, whether desirable or otherwise — I accept some of them are desirable — without being in conflict with the Constitution.

Finally in relation to the detail of the Bill, section 10 proposes that a person serving a sentence of imprisonment in respect of an offence committed while on bail should not be granted temporary release unless for grave reasons of a humanitarian nature and, even then, only of a limited duration justified by those reasons. That section is almost identical to a provision in the Criminal Justice Act, 1990, dealing with the temporary release of prisoners serving sentences for what had formerly been capital offences.

While I can assure the House that in assessing any case for temporary release due regard would be had to the fact that an offence was committed while on bail, the inclusion of such a blanket provision in the case of offences committed on bail would be too inflexible and disproportionate. To take a practical example, I do not believe that it would be right that a Minister for Justice should be precluded from granting temporary release to an offender with a drugs problem for the purposes of residing in a treatment centre where a relatively trivial offence had been committed by that person while on bail and where there was a chance of tackling effectively the offender's drug problem.

Lest the Deputy is concerned that no legislation is being prepared, there are a number of Bills completed or nearing completion in my Department. I know that all Members of the House, particularly the Opposition Justice spokespersons, will co-operate in advancing my programme of legislation. I commend Deputy O'Donoghue for the work he has put into this measure. I will note with interest the rest of the debate on his proposals, but for the reasons I have explained I, regrettably, cannot commend the Bill to the House.

I wish to share my time with Deputy Wallace.

I am sure that is satisfactory.

I congratulate Deputy O'Donoghue for taking the initiative and introducing this urgently needed and essential legislation in Private Members' Time. I am sure he will readily acknowledge this is only one of a number of Bills which will have to be introduced as a matter of priority to try to restore public order in Dublin and throughout the country. There is no doubt about the growing concern at the manner in which criminals out on bail simply abuse the liberty afforded them to commit numerous other crimes secure in the knowledge that while they build their nest eggs the additional penalty on the day of reckoning will be minuscule. There is equally no doubt that in the Dublin area, in particular, most crime is drug related and most crimes committed on bail are simply to feed the habit. Estimates put eight out of every ten crimes in this category.

Last year three known criminals in that category out on bail committed an additional 14 or 15 known aggravated burglaries around an area of the northside of Dublin city over a period of a few weeks. They were so brazen and crazed for a fix they rarely wore balaclavas and were frequently filmed on security cameras. They terrorised the local communities. The family members and staff of the small family businesses they targeted were extremely traumatised. It is regrettable, but it is little wonder, that a number of those business people have since tried to sell up and move out. The Minister will agree that this is just one of numerous examples of crimes committed in the Dublin region which her party colleagues have brought to her attention during the past four to five months since she took office. Since I entered public life I have become aware of examples too numerous to mention, particularly during the past four to five years. Neither Deputy O'Donoghue, I nor anybody else is trying to hide from the fact that this problem has existed for some years and is increasing.

All fair minded people accept that in a democracy it is a fundamental principle of common law that a person is innocent until proved guilty. Also, a balance must always be struck between individual personal liberty and the need to protect society. Notwithstanding that, recent evidence of the flagrant and blatant abuse of bail clearly shows that the pendulum has swung very definitely in favour of the habitual offender and away from the innocent victim as well as from the well-being of society as a whole.

As clearly articulated by Deputy O'Donoghue, judges in deciding on bail are bound to a strict adherence to the rulings in the case of the Supreme Court judgment of 1966. To change that practice would require a constitutional amendment. I loudly applauded the Minister when she publicly announced recently that she would hold a referendum on our bail laws in the autumn.

The Deputy should continue to do so.

Regrettably, however, she was promptly put in her box by a rap on her knuckles from her Labour colleague——

I was not.

——followed by a deafening silence from the Taoiseach and the Tánaiste. Tonight she tried to retrieve some ground and I commend her for that. I am still not convinced about what is in store. I appeal to the Minister to come clean and take this political monkey off her back. It is time for her to publicly clarify her position. She said tonight she is in favour of an amendment and has people working on the wording of it. Has she been silenced in following through and clarifying her recent public statement by dissension within the Cabinet or maybe she has the courage of her convictions to tackle the issue head on at the Cabinet table? Where does she stand now?

Did the Deputy listen to what I said?

I listened and I read the script. There is little consolation for the victims of crime and the many terrorised communities across the length and breadth of the country in being told the Minister cannot move because the colours of the rainbow are clashing. Not only was it essential, against this background of political procrastination that Deputy O'Donoghue should introduce a Bill to tackle this serious problem, it was his duty to the people to do so.

Why did the Deputy's party not introduce one last year?

If it was so simple to introduce, why did not the former Minister for Justice, Deputy Geoghegan-Quinn introduce it?


The Deputy, without interruption.

The Minister must face the reality, she is Minister. She has a problem in that she is unable to accept——

If Deputy Geoghegan-Quinn were present she would tell Deputy Fitzgerald——

The Deputy without interruption.

The Minister does not appear to want to listen to the harsh truths. Maybe she will be silent and I will tell her some more of them.

I am trying to be logical.

There is a good deal of logic in what I am saying and quite a deal of waffle and evasion in what the Minister said. As made clear by our spokesperson, the measures in the Bill deal with some of the areas where the bail system is being abused. As Deputy O'Donoghue acknowledged, they can only address some areas because, in the absence of a referendum, we must operate within current constitutional parameters. I read the Minister's speech carefully and she has not definitively said the proposed provisions are unconstitutional, she said there are questions about constitutionality. I warmly welcome the provision in section 5 to give the court discretion to attach to the granting of bail a wide variety of conditions. While there is scope for general application, the main thrust of the Bill is that those conditions are intended for habitual offenders. They are wide-ranging and target many of the ways in which the habitual criminal or the drug addict can and does abuse his rights while on bail.

It is almost irrelevant now to refer to consecutive sentencing for criminals who commit crime while on bail although the Minister referred to it. If it had any meaning and effect, the three menaces to which I referred who committed 14 to 15 crimes while on bail over a short period would have been removed from society for the rest of their natural lives. Among the conditions listed are powers that restrict the movement of the criminal, and they were never more needed. The new power to forfeit a sum pledged by a bailsperson if the accused commits a crime while on bail will not deny the criminal his constitutional rights. Deputy O'Donoghue rightly pointed out that there is no such thing as a constitutional right to bail and I will not repeat the quote he gave from the judgment. On the contrary, in Dublin it will have the effect of driving a wedge between the habitual hardened criminal and Ireland's modern day A1 Capones, the real leeches feeding off the hardened criminal's addictions who have found no difficulty up until now keeping the criminal merry-go-around moving at an accelerating pace secure in the knowledge that their bail money would be returned to them after the trial. I refer to the so-called independent bailspersons.

Most of the crime committed in Dublin is drug related judging not only from estimates reported in newspapers and quoted by others, but from the experiences of victims in my constituency. The measures requiring a person on bail to keep the peace and abstain from any form of criminal activity including drug abuse are therefore heartily welcome. There is nothing more intimiding or demoralising for a law abiding community or the Garda Síochána than a local hardened habitual criminal out on bail thumbing his nose at all and sundry or, even worse, marauding his community, crazed out of his mind from drugs, targeting his next hit and prepared to go to any lengths of brutality or threat and intimidation to pull it off.

That kind of scenario has the effect of bringing the law and judicial system into disrepute, the criminal perceiving himself to be almost above the law. Indeed the law-abiding community views him in that way, resulting in ordinary, decent people losing confidence in the overall system, invariably leading to deepseated cynicism and anger on the part of ordinary, decent, law-abiding citizens.

The fundamental question the Minister and Government must face now — if they are to act responsibly — is what to do with a system that is blatantly abused, simply does not work and promotes wreaking havoc on crime-torn communities. To procrastinate — and there was nothing in the Minister's remarks this evening but procrastination, when she spoke about a referendum to be held some time in the future when this or that committee will have agreed the requisite wording — within the present climate of crime and context of bail, is a clear dereliction of duty and abdication of her responsibilities.

The Bill introduced by Deputy O'Donoghue should be taken on board by the Minister, as her immediate predecessor. Deputy Geoghegan-Quinn and her Fianna Fáil predecessors did whenever good legislation, such as this, was introduced on the Opposition benches.

The position is so serious in regard to abuse of bail, pending the implementation of legislation such as this and holding a referendum — if it requires legislation, in turn, so be it — the Minister should immediately set up a courts executive to target long delays in criminal cases between the initial arrest and charge and the date of plenary hearing of such criminal cases. I know the Incorporated Law Society advocates the establishment of such an executive to cater for civil cases but Members must place emphasis on criminal cases.

Why not appoint an additional two or three judges to deal with criminal cases in the greater Dublin area? Such a twopronged approach would have a major impact on ensuring that hardened criminals, habitual offenders, drug addicts, committing crime after crime while on bail, could be removed from society within a much shorter space of time.

I thank Deputy Liam Fitzgerald for sharing his time with me.

I commend Deputy O'Donoghue on the introduction of this Bill, which constitutes a major contribution at two levels, first, in addressing an issue on which the Minister's performance has been disastrous when, initially, without adequate preparation or consideration for the opinions of her Cabinet colleagues, she promised to hold a referendum on the issue, a major blunder which may have resulted in her having learned a lesson even to some extent, since she has been largely silent on the matter ever since. The sad fact is that our citizens cannot afford the time it is taking the Minister to come to terms with the basic prerequisites to significant legislative reform on bail.

In the absence of any meaningful contribution on the part of the Minister, the introduction of this Bill by Deputy O'Donoghue is very welcome. A detailed examination of its provisions clearly reveals the quality of its legislative proposals.

Before addressing the more urgent areas in need of reform on the granting of bail, I must stress to the greatest possible extent the grievous threat an increasing crime rate poses, resulting in our having no option but to place the State's full resources in the battle against crime. While that objective may involve extra security personnel, better equipment and improved custodial facilities, equally it is the responsibility of this House to ensure that appropriate legislation is enacted to allow the various State agencies to operate most effectively. Our laws on bail are a specific example of circumstances in which excellent police work can be seriously undermined when guilty parties are given further opportunity to engage in crime. Ultimately the burden of such legal inadequacies is borne by our law-abiding citizens.

The proposed changes address two main problems with our current legislation. First, they provide the Judiciary with greater flexibility with regard to the circumstances in which they can refuse to grant bail. Second, they allow for sanctions against a person on bail where such bail provision has been abused. The provisions of this Bill provide the House with an excellent opportunity of taking much needed action against committed criminals since every day these reforms are delayed, leads to increased opportunities for habitual criminals. Do we really wish the present unsatisfactory position to continue when Deputy O'Donoghue's comprehensive, prudent proposals would lead to an immediate, substantial improvement overall?

To be the victim of crime is the worst nightmare for any ordinary, decent member of society. Assault at the hands of a violent criminal is even harder to endure and from which to recover, but it must be almost totally impossible to come to terms with such victimisation when that crime is committed by someone who should properly be in custody at the time of its committal. There is little point in Members offering sympathy and understanding to victims of crime when it is our prime duty, as legislators to endeavour in every possible way to devise a fair, equitable and efficient system of justice. In the case of repeated lawbreaking incidents by experienced criminals, brazenly availing of loopholes in our bail provisions, it is outrageous to sympathise with their victims while failing to introduce the necessary amending legislation.

Sadly, the Minister does not appear to have grasped that simple reality. It is sometimes claimed that we do not have sufficient places in our prisons to accommodate an increasing number of convicted criminals. Such an excuse is simply unacceptable, constituting passive acceptance of some perceived economic limitation as an excuse for allowing criminals to go largely unpunished for their crimes. One cannot overemphasise the need to ensure our citizens live in a safe, secure society. Surely the right to freedom from attack and abuse is as basic as that to free speech? Modern society places extreme pressure on our policing and judicial systems in particular in combating problems associated with the distribution and use of illegal drugs. While, thankfully, the position here has not yet reached the levels experienced in many other countries, the trend in relation to drug abuse is most worrying.

This Bill affords us an opportunity to convey a much needed message to three different constituents in this State. First, we can say to the committed criminals that we are taking more determined steps to ensure that they are hindered in every possible way from prepetrating further violence or crime on their fellow citizens by tightening our bail provisions. Second, we can send the message to our law enforcement agencies that we will provide them with every possible facility to ensure they have the upper hand in dealing with the cynical, committed criminal. Finally, and most importantly, we can say to each and every law-abiding member of our society that we are taking every step possible to protect their safety and wellbeing.

All Members will have seen and read of recent events in relation to criminals in Cork, of their intimidation of and threats to members of the Garda Siochána, their families, and other members of the community providing a service in a certain part of our city; the threats to certain people if they sold The Cork Examiner. I am very glad they did not give in to such threats. I assure them this evening that, irrespective of our political affiliations, they have our full support. Indeed, we assure the Garda that all the necessary resources will be made available to them in this task. If we allow such people to take over our cities and threaten our law-abiding citizens in this manner, God help us, where are we going?

We are not playing politics, we are here because this issue is of major importance to the electorate generally. The Minister, and all Members, know that such criminals are flouting the law, committing crime while on bail, in the full knowledge that the same sentence will be handed down by the court. We know also that criminal cases are being transferred from Cork to Dublin, and are put at the end of the queue, so that anything from eight to 12 months may elapse before they are heard. Yet we know people are commiting crime while on bail, which is totally unsatisfactory and it is the responsibility of the Minister for Justice to deal with that matter.

In regard to the Minister's remark about her predecessor not being in the House tonight, for the short time she will be Minister for Justice I hope she achieves half as much as her predecessor, and it will be the people outside this House who will be the judge of that. The Minister has a great deal of work to do to catch up with her predecessor, and I wish her every success.

I thank the Deputy.

Debate adjourned.