Private Members' Business. - Criminal Law (Bail) Bill, 1995: Second Stage (Resumed). – Dáil Éireann (27th Dáil) – Thursday, 4 May 1995

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

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

Mr. D. Wallace

Despite the major technological advances of recent times and the general affluence throughout the developed world, the problem of crime seems to increase with each passing year. To make matters worse, violent crime seems to be a particular problem. One might reasonably assume that increasing participation in education would help remove any possible gloss from violence and show it in its true form as the worst possible form of human behaviour. Unfortunately, that has not been the case. Crimes which up to a few years ago were rarely, if ever, heard of seem to have become increasingly common. While changes in value systems and the totally unacceptable glorification of violence on television and videos have contributed to those patterns, the trade in and use of illegal drugs is probably the single most important factor influencing the extent and nature of crime in modern society. As I stressed during the debate yesterday evening, we as legislators have a grave responsibility to ensure the necessary supports and structures are put in place to ensure the tide of crime is initially stopped and subsequently reversed.

Neither the quality nor the commitment of our law enforcement agencies is in doubt and, therefore, we are building on a secure and reliable base for the renewed battle against crime. However, such relative security must not result in either a degree of self-satisfaction or complacency. While one might gain a certain degree of comfort from our relatively low level of criminal behaviour compared with that in other countries, such an attitude is extremely dangerous. The fight against crime within any society rarely remains at a fixed level. If the authorities begin to gain the upper hand in terms of high detection rates and the application of appropriate punishment, the crime level drops. Any indication that criminals are on the winning side can only serve to actively encourage those with criminal tendencies.

Everything I have heard during the debate today confirms my belief that to date the Minister has totally failed to come to terms with the problems posed by current weaknesses in our legislation regarding a Bill of this type. It would be a welcome sign of increasing maturity on her behalf if she reconsidered her attitude to the opportunity presented to her by the diligent work of Deputy O'Donoghue. Using his professional legal background he has put together a set of adjustments, which if implemented, would provide a rapid and effective remedy to the major problems being experienced in this area.

The Minister referred to there being almost a doubling of the number of crimes committed by people on bail recently. That position is totally unacceptable. This Bill is put forward in a constructive manner to deal with this problem which is widespread throughout the country and which is of major concern to people at all levels whether in respect of their personal safety, their property and their homes. Businesses in cities and counties are suffering as a result of the increase in violent crimes. This morning a person accused of committing a serious crime in Cork was given free legal aid and was able to secure bail of £5,000. Surely the system is being brought into disrepute when a person who applies for free legal aid can get bail of £5,000 and has no difficulty finding the money.

I referred last night to the crime problem in Cork and paid tribute to the people who were intimidated recently and threatened in respect of doing certain things, such as selling the local paper, the Cork Examiner. Gardaí and their families are being threatened by some of these people. That position cannot be allowed to continue and those are only the cases of which we are aware. I assure those people of my full support and that of all Members of the House. We will not allow any group in society in dictate how we live, how we go about our business, conduct and enjoy ourselves. Unfortunately, recent events in Cork show that some of those people believe they can dictate terms. As a Deputy representing Cork, I will not be muzzled or intimidated by those people. We have read that one of our colleagues received threatening telephone calls because he made a statement the week before last. We have all received threatening telephone calls in the middle of the night from time to time. If we were to allow that type of intimidation to succeed, we would go nowhere. This Bill has been put forward by Deputy O'Donoghue and the Fianna Fáil Party to address a problem that exists in our society and to give reassurance to the many people who are suffering as a result of people committing crime while on bail.

There are examples in Cork where people have applied to have their cases transferred to the Dublin jurisdiction. Their cases are put at the end of the list and it may be 12 or 18 months before their case comes before the courts. During that time people are out on bail and many are committing crime. They know they will receive the same sentence; they may get a 12 month concurrent sentence, but it will not affect them to any great extent. As that practice is bringing the whole system into disrepute, we as legislators have an obligation to come to grips with this problem. Unfortunately, the Minister is not doing that. We know there are constitutional aspects involved in addressing this problem, but the Constitution does not give any member of our society a right to commit crime. We are not guarding against that and that argument must not be put forward. Our people are entitled to the protection of the security forces of the State, but they do not believe they are getting that. The Minister, who is absent, and her colleague, the Minister of State, should accept the Bill introduced by Deputy O'Donoghue. We all agree with its provisions for change which would give the judiciary powers to deal with the people to whom I have referred.

The Minister has not taken this on board nor brought forward the proposals for a referendum. She appears to have no intention of dealing with the problem which is widespread in the community. That is part of her responsibility, but unfortunately she has not dealt with it. We are familiar with the major crimes which receive publicity, but hundreds of crimes are being perpetrated on people who do not report them because they see people committing crimes while on bail, being rearrested and released. That is unsatisfactory. We have an obligation to deal with this problem as quickly as possible.

I strongly appeal to the Minister to ensure that every consideration is given to the Bill put forward by Deputy O'Donoghue. We will all gain by accepting this Bill. It is not the first time an Opposition Bill has been accepted. The previous Government accepted Opposition Bills. The Minister and her colleagues should be big enough to accept Deputy O'Donoghue's Bill which proposes constructive changes to enhance the role of the Judiciary in dealing with this serious problem. It proposes that judges should have discretion to decide whether bail should be given. Judges do not have that discretion at present and examples of the problems that arise in that regard were given by a number of speakers last night. The position is unacceptable. We should listen when the public say we are not doing our job in terms of addressing this problem. The Minister would do a good day's work if she listened to Deputy O'Donoghue. I strongly commend the Bill to the House because it is in all our interests that we deal with the problem as quickly as possible.

Mr. Flanagan

Reading through the Official Report of Dáil debates in recent years, with particular reference to Private Members' time, I do not suppose there has been a topic that has had greater airing here than the administration of justice, in particular the administration of criminal justice. Every Member, irrespective of political affiliation, is anxious to contribute to this debate, to ensure we can reduce the very high levels of crime.

There are many aspects to this issue. For example numerous reports produced over the past five or six years recommended changes, some of which found favour with the administration in power at the time, leading to an improvement in our legislative provisions; unfortunately, others have not.

The question of bail is one this House has not addressed, with the speed and urgency required by society. For example, this will have been the third Bill recently to attempt to legislate for a restriction on our bail regime. It cannot be overstated that Ireland has perhaps the most liberal bail regime within western Europe. It is much easier here for any accused to be granted bail pending trial, than in any other western European country. That alone is sufficient justification for examining the operation of our bail laws.

As other Members have said, that almost 4,500 crimes can be committed within one year by persons out on bail goes a long way to weakening confidence in our system of justice. It is quite extraordinary that such a high level of crime is committed daily by people who have been freed by our courts on bail, or who are facing a charge for a criminal offence.

A few months ago a man appeared on trial for murder in London. In the course of the relevant pre-trial submissions it transpired that person already faced a murder charge in Dublin but was out on bail for a sum of £250. While that example is probably extraordinary, certainly not the norm, there are people released on bail who continue to perpetrate crime against persons and property. It is plainly absurd for this State not to enact legislation to allow our courts restrict the freedom of dangerous persons who daily put life and property at risk. Our courts should have full discretion on the matter of bail. It is my understanding — this is the subject of some debate — that to enable us allow our courts invoke full discretionary powers, we need a constitutional referendum, something flagged earlier this year by the Minister for Justice, Deputy Owen, and on which we have heard much in the form of positive debate since. It was a little disingenuous of Deputy Wallace to say that the referendum on bail has not been heard of, since its pros and cons have been aired significantly since the matter was raised by the Minister some months ago.

It is important that we engage in constructive debate on bail prior to adopting what appears to be a very simplistic approach of holding a referendum, gaining the favour of the people, changing our Constitution and allowing our courts to dictate or cater for whatever difficulty might ensue following an amendment of our Constitution. We had sufficient of that in the 1980s. We must learn from the appalling lesson of 1983 as far as constitutional referenda are concerned that we do not insert words into our Constitution unless we are satisfied that their consequences will achieve what we wish and not give rise to the types of problems witnessed in another area in the 1980s. We should not rush into a referendum but, if we are to hold one, so be it. I hope consideration will be given to holding a referendum on bail, perhaps in conjunction with the referendum on divorce later this year. The vast majority of our citizenry would like to see changes in our bail laws and would vote in favour of a referendum to amend Article 40 of our Constitution to afford our courts full discretionary power.

The fundamental test for bail is the probability of an accused evading justice and not standing trial. Bail should be refused whenever it is considered an accused may strike again before trial, or is likely to dispose of stolen goods as a matter of urgency, for example, the proceeds of a bank robbery, or of property stolen from a person's dwelling. It has become much too easy for people to be apprehended, brought before our courts and released on bail, without producing the proceeds of the robbery. Within the lengthy period during which that person is out on bail, the proceeds of the robbery are disposed of with significant gain to the criminal. Nobody can argue that is reasonable or conducive to gaining people's confidence in our criminal justice system.

Turning to a detailed examination of the fundamental tests in the celebrated O'Callaghan case, to which reference was made last evening and which encompasses the kernel of the debate on bail — Mr. Justice Brian Walsh, a sound judge responsible for very many important milestone decisions, whose reputation in the area of criminal law perhaps has been unequalled in the history of this State listed in very concise terms the matters which should be taken into account when considering the granting of bail. They include the seriousness of the charge, the nature of the evidence, the likely sentence on conviction, the fact that the perpetrator of the crime was caught red-handed, the perpetrator's failure to answer bail on previous occasions, the possibility of the disposal of illegally acquired property or goods and the possibility of interference with witnesses. These matters may be taken into account but Mr. Justice Brian Walsh stressed that they were subsidiary to the fundamental test, which is whether or not the accused is likely to stand trial.

No doubt Deputy John O'Donoghue would agree with me that it is important that we expand the fundamental test for granting bail to include the many subsidiary tests that Mr. Justice Walsh considered to be appropriate and necessary. However, in the course of his judgment in 1966, Mr. Justice Brian Walsh counselled a certain amount of caution when he stated that the grounds mentioned were merely guides to a decision on the probability of the accused evading justice, that the possibility of the disposal of illegally acquired property and of interference with prospective witnesses and jurors came within the general heading of the evasion of justice and were to be used as grounds for refusing bail only when it is reasonably probable that these events will occur if bail is granted.

A difficulty that has arisen from a practical point of view is that objections to bail on any grounds should not be made in isolation, must be supported by sufficient evidence to enable the court arrive at a conclusion of probability and must be open to questioning by the accused or his or her legal advisers. That is the difficulty facing the courts in this matter and it is not met by Deputy O'Donoghue's Bill. There are only a few basic differences between this Bill and that introduced by Fine Gael last year which sought to allow the courts to take into account the likelihood of an accused person reoffending while on bail. That matter must be taken into account by a court when deciding whether to grant bail because it is the nub of the problem. An appalling statistic shows that in 1994, 4,416 crimes were committed by people while on bail. The figure for 1983 was 8,300, but the problem was addressed to some extent by the Criminal Justice Act, 1984, which was frequently used as an excuse for not changing our liberal bail laws in that Ministers claimed it had addressed the problem.

Following the implementation of that Act the number of persons committing crimes while on bail reduced significantly. For example, in 1990 the number had reduced to 2,494. However, in the early 1990s the figures increased significantly. In 1993 the figure was 2,800, but in 1994 it was approximately 4,500 indicating to legislators, the gardaí and others engaged in the enforcement of legislation and in the detection of crime that the 1984 legislation was not addressing the problem. As a result, the Fine Gael Party introduced a Private Members' Bill last year which was rejected by the then Minister for Justice. Fine Gael and Fianna Fáil have not been the only parties to attempt to tackle this problem by way of all party consensus. Some years ago the Progressive Democrats published a Bill which stated that a bailsperson could risk losing bail if the person committed an offence while out on bail. While that was a reasonable suggestion, it did not find favour with the Government at the time no more than this Bill will find favour with the Minister. The reason for this was explained by the Minister last night and a similar reason was given by her predecessor, Deputy Geoghegan-Quinn, when rejecting last year's Fine Gael Bill. The Minister stated that she is awaiting a report from the Law Reform Commission.

As there is general consensus on the need to change our bail laws, the Minister should ensure that the Law Reform Commission completes its deliberations and publishes its report as soon as possible. I acknowledge that the commission is busy publishing reports, many of which have been gathering dust on shelves for years, but it should urgently address this matter. We cannot allow a position to continue in our criminal justice system that is giving rise to a great deal of concern and weakening confidence in the system. I hope, therefore, that in response to this debate the Law Reform Commission will inform the Minister when it is likely to conclude its deliberations and publish its report, including recommendations that will be made available to the House to assist us in the enactment of appropriate legislation. The commission must set a deadline in this regard. If it is experiencing difficulties in regard to resources, expertise or consultancy matters, the Minister should address them as soon as possible. I am sure it is not necessary for me to say that the Law Reform Commission should have the total support of the Department of Justice in completing its deliberations with minimum fuss and delay.

While there is need for change and we agree the courts must be given full discretion in the matter of bail, nevertheless there is a danger of over simplifying the manner in which we change our laws. It is not sufficient to say that people who commit crime while on bail should be taken off the streets, locked up and the keys thrown away. Our Constitution upholds the right to personal liberty and freedom of the individual and this will give rise to considerable debate in the run-up to a referendum on bail. Any abrogation of the fundamental right to personal liberty must proceed and be accepted only in exceptional circumstances. We are not dealing with a matter that can be rushed through willy nilly. Neither are we dealing with a black and white issue for which there is a yes or no answer. The restriction of personal liberty of the individual upheld by our Constitution is fundamental in the matter of human rights. Bail is not something that can be granted as a favour by a judge pending trial. Bail is not a privilege, it is something to which in most cases people are entitled and to which a restriction must be applied only in special circumstances. The presumption of innocence is much more than a mere procedural rule or technicality. In the course of giving judgment, Mr. Justice Brian Walsh frequently stated that the presumption of innocence must be more than a mere technical device or procedural rule on a piece of paper. The presumption of innocence and the fundamental right to personal liberty go hand in hand.

In putting the matter to the people we must strike a balance between the restriction on personal liberty and the need to reduce the number of crimes committed by persons released on bail pending trial. However, even without a referendum we can take action on the number of crimes committed by persons while on bail. We can do so by ensuring immediate access to the courts and holding trials at the earliest possible opportunity.

I understand my colleague, Deputy Byrne, is to share some of my time so I will bring by remarks to a conclusion.

Mr. E. Byrne

The Deputy can have his full time if he so wishes.

Mr. Flanagan

I think this is a matter on which Deputy Byrne has views worthy of airing in the House. I know his contribution will be constructive.

Any changes that we contemplate in our bail laws, whether by way of legislation or by constitutional referendum, must not trample in any way on the fundamental liberties of our citizens enshrined in the Constitution. Having said that bail is not a privilege and that the fundamental rights of personal liberty must only be abrogated in the most special of circumstances, I have two major concerns about any proposed referendum that I believe are worthy of consideration at the highest level. The first concerns the undue delay that all too often takes place between the time of charging an individual and the subsequent trial. This is responsible for the huge number of crimes being committed by people on bail. When a person is charged with an offence, they are given bail and are then on remand for any period up to a year before they are brought to trial. There is almost an inducement offered to a person due to appear before a court to engage in the commission of further crimes.

One statistic indicates that 82 per cent of criminal trials involve convictions on a plea of guilty. The timescale involved is in itself an inducement towards the commission of further crimes. It has nothing to do with bail and little to do with a constitutional referendum but much to do with the manner in which we order our business in the courts system. Where a person is caught red-handed following the commission of a crime, it is possible to ensure that that person's trial is held within two, four or six weeks at the most. Other than in cases where a difficulty arises, there is no reason the business of our criminal courts cannot be processed in a more streamlined way without the endless delays that frequently occur.

There is a huge backlog in our courts system with which Deputies from every area are familiar. In too many of our criminal trials there is a protracted delay between the time of arrest and the subsequent trial. We need to introduce a scheme of acceptable timeframes having regard to the circumstances of individual cases. That is my one caution in regard to any referendum. We must not restrict a person's liberty by remanding them in custody before trial when it may be a year or more before that trial takes place. I believe that is unconstitutional.

The second concern I have, which is equally important, has to do with the need for a special remand centre for the custody of persons who are innocent because they have not yet been convicted in any criminal court. Such a remand centre could be in a separate arm of the prison system. It will be costly and may be unpopular but I believe it is essential because the fundamental thread of our criminal justice system is, the presumption of innocence until a person is proved otherwise by way of hearing in a court of law. It is fundamentally unjust to treat the innocent in the same manner as we treat those people who have been convicted. It is simply not good enough for us to remand people in custody under the same conditions and in the same prisons as people who have been convicted of serious criminal offences.

I welcome the debate initiated by Deputy O'Donoghue. Despite what Deputy Dan Wallace said, the House does not have to enact this legislation simply because on previous occasions Fianna Fáil accepted Fine Gael Private Members' Bills. That would be totally contrary to the way we should be engaging in our business. There are merits in the Bill and some of its sections may be incorporated ultimately in the legislation that will follow as a result of the report of the Law Reform Commission and, presumably, the referendum. I ask Deputy O'Donoghue to await the Law Reform Commission report and I am sure he will agree with my reference to the urgency in that regard.

In conclusion, the right of innocence until proven guilty is the basic thread upon which our criminal justice system is founded. While we must accept that the bail system is not operating in the best interests of society, the fundamental rights and liberties of the citizen must not be trampled upon.

Acting Chairman (Ms F. Fitzgerald)

I call Deputy Eric Byrne who has approximately three minutes remaining to him.

Mr. E. Byrne

I am sure my Fianna Fáil colleagues will show some generosity towards me as the previous speaker has overrun his time.

Mr. Flanagan

I have to take issue with that. I was waiting for Deputy Byrne.

Mr. E. Byrne

There is no problem. We are in Government together and we will support each other but I believe in the Opposition supporting backbenchers like myself in obtaining a fair allocation of time.

In an era of spiralling crime rates politicians are often forced to weigh individual liberties against the public good. That is a delicate tightrope on which we have to walk. Last year, approximately 4,500 crimes were committed by people while on bail. That is a huge increase on the numbers for the previous year. I recognise that our bail laws are being abused by large numbers of people who view being out on bail, given the possibility of their incarceration for a long period of time, as a licence to continue to commit crime. However, I am opposed to Deputy O'Donoghue's Bill, not merely because of the constitutional limitations. Nor is my opposition based on party political considerations. I have no doubt that Deputy O'Donoghue has made a genuine attempt to address what is an extremely complicated issue.

I welcome the debate this Bill has initiated but I would point out that a similar debate was held in 1984 prior to the introduction of the Criminal Justice Bill which introduced several provisions relating to offences committed while on bail. Eleven years on, these provisions have had little effect on the problem. There is wide agreement that our bail laws must be examined with a view to preventing abuse. However, I have reservations about some of the suggested mechanisms to do that.

Under the Bill a court may impose wideranging conditions on a person released on bail. In some cases, those conditions could almost amount to effective house arrest pending trial. For example, section 5 (e), if imposed, would prohibit the accused person from attending at any location at which the victim of the crime is known to socialise until the conclusion of the case. This section would also prohibit an accused person from attending at any specified business or residential area or address until the conclusion of the case.

Do we expect the Garda Síochána to monitor people who have been released under these restrictive bail conditions? I do not know whether the Garda Síochána have the resources or would like to mount surveillance on those on bail. It is a question of whether the available resources could be put to better use elsewhere. I recognise the need to protect the victims of crime from further harassment or injury but is this the way to do it? If these conditions were imposed on a person living in a small rural village, he could find himself under effective house arrest.

Acting Chairman

The Deputy's time is exhausted.

Mr. E. Byrne

I wonder if the Fianna Fáil side would be kind enough to give me two minutes?

Mr. Kirk

We will give Deputy Byrne time as we understand the misunderstanding that arose between Deputy Flanagan and him.

Mr. E. Byrne

The difficulty is that I was at the Committee of Public Accounts.

Acting Chairman

The Deputy has five minutes.

Mr. E. Byrne

I thank the Opposition for that allocation. The person could be prevented from going to work because the victim might be in the same employment. The result would be devastating for the alleged perpetrator who may eventually be found not guilty of the crime. Rather than creating two possible innocent victims we should examine new ways of providing victim support. In this regard I urge the Minister to give priority to drafting a charter for victims of crime. We should review also the criminal injuries compensation system and re-establish a restitution fund as promised in the programme for A Government of Renewal.

Undoubtedly elements of Deputy O'Donoghue's Bill merit consideration. In particular, I welcome the thinking behind section 9 regarding the estreatment of bail as such a provision would act as an effective deterrent to the vast majority tempted to commit crime while on bail. I welcome the stipulation that a person released on bail should be prohibited from contact with prosecution witnesses, which I accept is difficult to implement and monitor, but would reduce the incidence of intimidation. However, I have reservations about the Bill as a total package. It is only in the past number of years that bail and limitations on bail has come on the political agenda.

To date much of the debate has been a knee-jerk reaction by politicians who are sick and tired of having their constituents placed under siege by criminals. I understand the reaction because I too am sick of seeing elderly people in my constituency, Dublin South Central, barricading themselves in their own homes and drug pushers plying their obnoxious trade with seeming impunity. I am tired of watching the gardaí trying to protect the public with effectively, one hand tied behind their back. Yesterday Deputy O'Donoghue referred to the criminals strolling on our streets as incubators of evil and I agree with him but any attempt to restrict the individual's freedoms without due consideration and full public debate might give rise to a far greater evil. We should carefully look at the operations in other countries, for example in Germany an accused person is very often held for years in so-called examining custody pending trial. That solves the problem of persons committing crimes while out on bail but sadly it is a form of internment for those incarcerated. Ill considered moves to restrict bail, unless accompanied by crime prevention measures are little more than a cop out.

The issue of bail arises only at the end of the criminal process and I would like to see far more attention being paid to the start of the process. I would like to see the extension of community policing, with gardaí based in the community liaising with community activists and the relevant professionals and agencies. I would like to see the early introduction of the Juvenile Justice Bill with its emphasis on early intervention procedures.

While I share the concerns which give rise to the Bill I fear that unless we establish effective intervention mechanisms, restrictions on bail will treat the symptoms rather than the causes of crime which is currently plaguing our towns and cities.

We should look very carefully at the causes of crime, not just the symptoms. We must tackle the kernel of the problem and the revolving door system operating in prisons. However, it may not necessarily involve bail. Let us get the drug addicts who are robbing to feed their habits into jail and on a methadone programme, on serving their sentence they should be released into a similar programme so that they do not rob, mug and break into homes of my constituents.

Dr. Woods

From the way Deputies are treating the Bill, it is quite clear it is a very important issue and that the question of bail is crucial. I congratulate Deputy O'Donoghue on bringing this Bill before the House thus providing the opportunity to highlight one of the great problems of society.

Sir, I wish to share my time with Deputy Kirk.

Acting Chairman

Is that agreed? Agreed.

Dr. Woods

We are suffering from high and unacceptable levels of crime. Ordinary decent law abiding citizens can no longer walk the streets without fear of being mugged, robbed or set upon. I am very familiar with this as are my constituents. This is a growing problem and a major issue for all Members. One cannot park one's car or enjoy the sanctuary of home without the fear of the car being stolen or the house being broken into. Young and old alike are subject to threats and menace with guns and knives. Large areas of Dublin city are dominated by the activities of ruthless criminals who prey on disadvntaged young people and intimidate local communities. These are strong words but they arise from hard experience. I cannot list the experience because I do not want to identify the area or the people involved but they are current. I appreciate a great deal of the work of the Garda Síochána to try to tackle these problems but much more needs to be done by all concerned.

Drug trafficking and serious crime is at the heart of these developments. It is time to say stop. The situation has deteriorated dramatically over the past six months and this is probably due to the fall in the price of drugs and their wide availability. The price of ecstasy tablets is reported to have fallen over this period from £30 each to £3 each. The pushers are involving many more young people and the support services cannot cope with the number of addicts in Dublin. This issue is above party politics and a threat to the whole community. I heard the Minister give a defence against this current level of crime and suggesting that former Ministers should have taken action.

We are often told by some members of the media that we should get used to the fact that we are not in Government but Fianna Fáil is used to that and well trained for Opposition as well as experienced in Government.

The Government must realise that when in Government the responsibility lies with the Minister and the Government. This issue is above party politics. The upsurge in drug related crime in Dublin city over the past six months is due to the greater availability of drugs. It is time to give the Garda the funding they need to put the godfathers of crime and the suppliers of drugs out of action. As an island nation we have a great opportunity to control the supply of drugs and we must do so. The gardaí must be given the necessary resources to mount and sustain intensive surveillance and intelligence gathering by experienced detectives in specialised units. That was done recently with some success but the Garda do not have the resources to do it extensively. If I had my way, I would start at Howth and work through to Dublin city and clear the drugs out——

Mr. Durkan

Like Sherman going through Georgia.

Dr. Woods

It is as bad as that. Come and live in Dublin and with the threats and menaces; come and see the subversion of our youth. The methods used by the Garda proved to be effective before in tackling drug barons. They must be used again before the suppliers of illicit drugs corrupt more of our young people. It is estimated that over three-quarters of all indictable crime committed in Dublin is related to substance abuse. That is an indication of the seriousness of the problem. If we solve the drug problem we will reduce the incidence of crime.

A recent survey carried out in Mountjoy Prison showed that over 80 per cent of offenders were on drugs ranging from cannabis to heroin. The average offender received 10.4 separate sentences. The Government must read these clear signals and take effective action. We need an action plan to remove the godfathers of crime, who are well known, from our streets and stop the traffic in drugs.

Mr. Durkan

It has been known for several years.

Dr. Woods

Quite a few of them have been taken off the streets. If the Minister wants to do a party political thing he should do it somewhere else. As far as I am concerned, this issue is above and beyond party politics.

Mr. Durkan

The Deputy is doing the party political thing.

If the Government propose to vote down this Bill it will be seen as a vote in favour of the habitual criminal and those responsible for the proliferation of illegal drugs. There will be ample opportunity on Committee Stage to propose amendments where necessary. A number of Members accepted that the principle of the Bill is a good one. If in the fullness of time the Minister wishes to incorporate reports on the subject the House will be glad to debate the matter. Why is it that every time we propose to do something we must wait for various reports?

In limiting the power of the Minister for Justice to grant a temporary release to those serving sentences for crimes committed while on bail, the Bill seeks to ensure that the provisions of the Criminal Justice Act, 1984 relating to consecutive sentences for crimes committed while on bail are put into effect. These measures were intended to be an effective deterrent to those who might be tempted to commit crime while on bail and an appropriate punishment for those who so offend. It has been estimated that more than 80 per cent of the prison population is addicted to drugs. This suggests that a similar level of indictable crime is committed by drug abusers, and that has been our experience. It must be recognised that there are limited custodial facilities in the State and that a reasonable balance must be struck between the use of these facilities for those on remand and those sentenced to terms of imprisonment.

The proposals in the Bill must be seen in the context of a wider range of measures to deal with drugs in particular. I agree with the points made by Deputy Byrne in this regard. The problems related to drug abuse must be tackled by taking stern measures against those responsible for their importation and distribution within the State on the one hand and the provision of appropriate treatment and support for those who are prey to the godfathers of crime and who have drug addiction problems on the other. There is a need for a comprehensive approach to this problem and, regardless of the cost, it is essential that we undertake that task now.

On the need to deal with the godfathers in the drugs trade, the Minister must urgently introduce special measures to assist the law enforcement agencies in tackling the drugs trade. After 20 years of applying special measures to those engaged in subversive paramilitary crimes, it is clear that similar measures are needed to deal with the subversion of our youth and the society we have known and cherished. The Minister must ensure that the Garda and other agencies such as the customs authorities have all the necessary resources available to them and that the powers for the enforcement of the law are sufficient to defeat those who import millions of pounds of drugs into the State and who have unlimited resources to further their criminal activities. Consideration should also be given to increased powers of detention in the context of the investigation of crime through application to the courts to deal with people suspected of dealing in drugs and who represent the most serious threat to the community and public order. We need to treat these godfathers as subversives.

At the same time resources should be made available to stem the tide of drugs being imported into the State. Increased resources should be directed to surveillance of our coastline which is frequently used to import drugs into Ireland and Europe. As Ireland is being used as a base for this European-wide problem, the European Union should make available all the necessary resources and substantially support us in dealing with this problem.

On the problem of drug addiction, it is important that any punitive and restrictive mechanisms put in place are matched by appropriate resources to treat addicts and to support communities which have a particular problem with drug addiction. It is important that those of us who favour reform of the bail laws are not blinded to problems such as poverty, disadvantage, unemployment, inequality and drug addiction, which are major contributory factors to the high level of crime, particularly in urban areas. It must be remembered that 80 per cent of offenders in Mountjoy Prison were unemployed when they committed the crime for which they were sentenced. In the absence of measures to deal with these underlying problems it will be impossible to effectively tackle crime. For this reason it is important to emphasise that the Bill should not be seen in isolation but rather as part of an overall package of measures to deal with the unacceptable level of crime which must be tackled by the Government.

Mr. Kirk

I thank my colleague, Deputy Woods, for sharing his time with me and I congratulate Deputy O'Donoghue on the introduction of this Bill, one of a number of measures dealing with crime and its related problems. There is general agreement in the House that the Bill is being introduced at an appropriate time. It is obvious from Deputies' contributions that crime is a major problem in the greater Dublin area. However, as a Deputy who represents a rural constituency I can assure the Minister of State that crime is also a problem in other areas. For example, in the Louth-Meath area, which is in close proximity to Dublin, the crime problem is particularly acute. One of the reasons given for this is that criminals from Dublin are moving out to areas where there is less security.

This debate has clearly identified an area of great public concern. Crime is one of the main issues about which the electorate are very concerned. Crime levels in both urban and rural areas are now unacceptably high. In the past rural areas were perceived as tranquil and desirable places to live. However, this is no longer the case and many elderly people living alone in isolated places are in constant fear of intruders.

The forces of law and order, particularly the Garda, are overworked and understaffed. It is accepted that a certain amount of crime goes unreported because people know that the Garda are not in a position to deal with it due to a shortage of staff: Some crimes are not given priority simply because of a lack of manpower. The possibility of recruiting additional gardaí has been under consideration by the Department of Justice for a long time. The time has now come to recruit these extra gardaí and put them on the streets. Otherwise we will not have the wherewithal to cope with the increasing level of crime.

Consideration must also be given to the adequacy of our laws; hence the importance of Deputy O'Donoghue's Bill. Last night the Minister said the number of crimes committed by persons on bail increased from 2,494 in 1990 to 4,416 last year. Those statistics graphically underline the seriousness of the problem with which this Bill endeavours to deal. If the Government, and in particular, the Minister for Justice seriously considered the Bill and agreed to accept it they would do a very good day's work for the victims of crime. They would also clearly indicate that despite the fact that it originated in the Opposition benches the Bill had merit and was timely and appropriate. It will also send a message to the general public that all parties in the House are committed to taking immediate steps to reduce the level of crime here.

I spent a period in the Chair last evening and I had the opportunity to hear at first hand many of the worthwhile contributions made by Members on both sides. A constant theme running through the contributions was that much of our crime is drug related. We have the serious difficulty that those who are addicted to drugs have to get the resources to feed their addiction. A person who is addicted to drugs and does not have ready access to the type of resources needed to feed that addiction inevitably turns to crime. There is no doubt that that in itself is a huge dynamic in our crime statistics. That is not to say I do not have compassion for those who are addicted to drugs. They need care, compassion and consideration.

Acting Chairman

Perhaps the Deputy would bring his speech to a close.

Mr. Kirk

I had just begun to get into the debate but I respect your judgment and appreciate your position.

Mr. Costello

I regret that I have to stop Deputy Kirk. I welcome the Bill as a useful contribution to the debate on legislative measures to tackle crime. I welcome also the focus on drug-related crime and the disadvantaged circumstances behind much of it in rural and urban communities. The programme, A Government of Renewal, a policy agreement between Fine Gael, Labour and Democratic Left, made provision 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 note the Minister for Justice considers that some of the proposals in Deputy O'Donoghue's Bill are tainted with possible unconstitutionality and that she has instructed her officials to examine a form of wording for an amendment to the Constitution. It appears the proper procedure for both Deputy O'Donoghue and the Minister would be to await the publication of the Law Reform Commission's proposals shortly. It seems silly that the Government should on the one hand request the Law Reform Commission to produce a report on bail laws and to have the proposals pre-empted by a decision or for the Government to be pressurised by a Private Members' Bill to act precipitively.

There is an enormous difference between the two possible approaches. Changing the laws on bail, as proposed by Deputy O'Donoghue, would condition and restrict the liberty of the accused before trial. If we were to change the constitutional entitlement to bail we would effectively deny liberty to the accused before trial. These are the central issues involved in the two different approaches.

Clearly the matter is so complex and of such magnitude that any decision should be taken only after full consultation between the Government parties and, indeed the Opposition parties and certainly after a close examination of the report of the Law Reform Commission.

There is a strong entitlement to bail expressed in Article 40 of the Constitution. It has been upheld and defined in the O'Callaghan judgment in the Supreme Court by Chief Justice Cearbhaill Ó Dálaigh that bail should be denied an accused only on two grounds, where there is a likelihood of interference with witnesses and where there is a likelihood of a person absconding and not standing for trial thereby perverting the course of justice.

The entitlements of the citizen are protected by the Constitution and by that interpretation by the Supreme Court. Under common law and the Constitution there is a guiding principle of the presumption of innocence until proven guilty. That has benefits. It has resulted in a situation where a very low percentage of our prison population are in on remand compared with the percentage who are in prison after final sentence. Prior to the O'Callaghan judgment offenders were remanded in custody for up to 18 months awaiting trial: justice delayed is also justice denied. Irrespective of whether a person is found guilty or not guilty subsequently there is no redress if that person has spent 12 months or 18 months in prison. That is a strong point in favour of being careful about the whole question of remand, entitlement to bail and denial of liberty.

What is the effect of the denial of bail? There is only one effect, the loss of liberty. Loss of liberty in our criminal justice system is the ultimate sanction. Since the abolition of capital punishment there is no further criminal sanction than the deprivation of liberty by imprisonment. Effectively it is not an alternative to probation, a fine or whatever. If we deny bail we deny a person his or her liberty. Effectively it is the ultimate sanction after conviction in the normal course of law.

The other side of the coin is that it has the effect of leading to preventive detention. If a person is denied bail on the grounds that they have already committed an offence and are likely to reoffend, we are effectively taking action to prevent them committing an offence by detaining them. There are all sorts of innuendo in respect of internment in Northern Ireland and what it might lead to. That would be the ultimate in the other direction.

One of the benefits of the bail system is that it allows the courts to proceed normally and the Garda to prepare the books of evidence and so on.

We have fewer people on remand in our prisons than most of our European neighbours and it seems to many citizens that the system is tilted in favour of the criminal rather than the law abiding citizen. When it became apparent in the late 1970s and early 1980s that some people were taking advantage of our very fair bail laws and committing crimes while awaiting trial, we introduced the Criminal Justice Bill in 1984 to provide for mandatory consecutive sentences for offences committed while on bail. That legislation has been extremely successful. In 1983 the number of crimes committed by people while on bail amounted to about 8,300. In 1990, according to the figures given by the Minister, the number was 2,494. The other figure that the Minister did not give was that in 1993 the number was only 2,800, still far less than one third of the number in 1983. In 1994, however, the number jumped to 4,416. Effectively, that mandatory consecutive sentence process, initiated by the Criminal Justice Act, 1984, was extremely successful up to and including 1993. Only in last year's figures do we see a sudden unexplained aberration. Has the Minister any suggestion as to what the reason might be?

Let us look at the 1994 figures. The offences committed by people on bail are as follows: 1,648 burglaries, 2,217 larcenies, 547 miscellaneous crimes and four indictable offences. If one looks at the profile of offences that made up the total in 1994 one finds that approximately 90 per cent were either burglaries or larcenies. We need to examine who committed these crimes and what category of crime was committed. I have no doubt that they were drug-related crimes. There has been a huge increase in the proliferation of drugs in the last few years. Increasingly we are finding hauls of drugs in virtually every county on the south coast, Waterford, Wexford, Cork, Kerry, Galway and Clare, as well as in Dublin where drugs are regularly imported and available. Perhaps we are addressing the wrong issue when we do not know the nature of the new crimes being committed and whether the sudden change in numbers that occurred in 1994 can be explained as an anomaly or a sign of worse thing to come.

To my knowledge drug addicts are, of their nature, seeking drugs at all times to feed their habit. They are not people who commit a crime for a specific reason, settle down and might not commit another crime for weeks or months. The crimes of drug addicts are daily crimes, and I refer to drug addicts in disadvantaged areas. Consequently, they will continue to commit crimes irrespective of any legislation we pass. If we could provide some way out of the addiction we would not have a repetition of crime, and until that is done we might as well lock up every drug addict in the city of Dublin or in any part of the country because they will commit crimes to get money to buy their drugs and feed their habit. It is as simple as that. It is a question of law enforcement on the one hand and of providing treatment facilities for drug addicts on the other.

In the city of Dublin we have three satellite centres for methadone maintenance and one national centre in Pearse Street. There are 420 drug addicts on methadone substitute in the three satellite clinics and 190 at Pearse Street. There are at least 5,000 known drug addicts who have come, at one time or another, looking for services in the city. At the very best we are dealing with approximately 10 to 15 per cent of the population who need an alternative means of living without committing crimes. Unless that alternative is provided we have no hope of stemming the need for drugs, and once there is a market, people will have to find money to purchase drugs to satisfy their craving.

We have a small number of detoxification units. I understand we are about to double that from ten to 20. As yet we do not have a system whereby general practitioners are in the conduit system with the satellite clinics so that people who are already responding to treatment can be phased into the general community, and that must be done as soon as possible. We have no in-patient treatment for drug abusers other than Coolmine Community Centre. Other treatment centres are of a private nature. However, it is necessary to take drug addicts off the streets for a month or six weeks or more so they can undergo a detoxification programme and initial counselling and therapy. There are major problems in dealing adequately with the drug problem and until we face up to those we are not likely to make much progress. We should have a multifaceted approach by co-ordinated interdepartmental and interagency groups locally and nationally. We should also consult with European Union member states, now that there are no longer custom officers at the borders, to formulate an integrated system of pooling resources and prevent the proliferation of drugs in all member states. That is the key to the drug problem. It does not matter what powers we put in place to solve the problem of drug addiction. Where the drug addict is not in a position to control his or her own life, putting powers of great magnitude into the hands of the Garda might be counterproductive.

Debate adjourned.

Dáil Éireann debate - Thursday, 4 May 1995