Dáil Éireann debate -
Tuesday, 9 May 1995

Vol. 452 No. 5

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

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

Mr. J. O'Keeffe

The Fianna Fáil Bill to reform our bail laws is a timid effort. It does not in any way provide for the major strengthening of the law, a move that is absolutely necessary. It merely seeks to put on a statutory basis the conditions which a court may attach to the granting of bail and to provide a procedure whereby bail money would be forfeited in the event of any of the conditions being breached. To a large extent therefore the Bill only provides statutorily for what is already happening in our courts where judges have for many years used their common law powers to attach conditions to the granting of bail.

A much together approach to criminals is necessary. It must be noted and recorded that our system of granting bail is one of the most liberal in the world. It is clear that for years organised gangsters and notorious recidivists have had little difficulty in getting bail and, in turn, abusing it. For the most serious of offences, such as rape and bank robbery, there is a little ground in our law for objecting to bail even if prosecutors know that an accused is likely to reoffend. The notorious Leixlip case some years ago which involved a running gun battle with the Garda Síochána by criminals on bail was a case in point.

For almost 30 years we have had to stomach the effects of the 1966 O'Callaghan decision in the Supreme Court. It should be remembered that there was another decision in the High Court where Judge Murnaghan had decided in the O'Callaghan case that there were 11 different grounds which could and should be taken into account by the court in deciding on bail. These included the seriousness of the charge, the nature of the evidence in support of the charge, the likely sentence, the likelihood of the commission of further offences by the accused, the possibility of the disposal while on bail of illegally acquired property, the possibility of interferences with witnesses and jurors, the prisoner's failure to answer to bail on a previous occasion and the fact that the prisoner was caught red-handed. It is worth remembering that the accused in the O'Callaghan case had committed the offence while on bail. Despite this, on appeal the Supreme Court reversed the decision of Judge Murnaghan and decided that it was unconstitutional to refuse bail except on the basis of a danger that the accused would not attend court for trial or that he would interfere with witnesses. All other grounds of refusal were found to be unconstitutional.

For many years I have advocated a constitutional amendment to restore full discretion to the courts so that the various grounds of refusal laid down by Judge Murnaghan could once again be available to judges.

The statutory approach has already been tried. When Fine Gael was last in power it introduced the Criminal Justice Act, 1984 which provided for mandatory consecutive sentences for offences committed while on bail. For some time it seemed to have a major effect. The number of persons charged with criminal offences while on bail fell dramatically for a number of years from about 8,000 prior to 1984 to 2,500.

Two problems however emerged. An analysis of those charged clearly showed that the provision for consecutive sentences in the 1984 Act had a deterrent effect on those involved in petty crime. However, it had little or no impact on those involved in organised and serious crime. It would appear that organised criminals who know they are going to jail on one serious offence have no compunction about committing other crimes because they are aware they will only serve a certain period in our overcrowded prisons.

The second major problem is that the number of offences committed by those on bail has again increased dramatically. I mentioned that the figure fell from approximately 8,000 to 2,500 per year but last year it jumped dramatically to 4,500. It is clear that a radical approach is now necessary and this approach must give top priority to the victims of crime.

I am not in favour of a return to the gruesome punishments of the past which involved people being hanged, drawn and quartered, transported or physically abused. Neither am I in favour of the sharia laws of the Islamic fundamentalists which involve beheadings, amputations and other physical assaults. To some extent the restoration of the chain gangs in Alabama is part of this dehumanising approach to criminals but I am in favour of protecting the innocent victims of crime to the greatest extent possible.

There are those who will argue that it is totally wrong to detain an unconvicted person in custody. That is poppycock and nonsense. Everybody will accept, including the Supreme Court, that it is proper to detain an unconvicted person in custody if there is a danger that that person will not attend for his own trial. From every point of view it is even more proper and should be constitutional to give the courts discretion to detain in custody somebody who on past record is likely, before trial, to commit further offences. It is proper at the discretion of the court to detain in custody pending trial somebody who has been caught red-handed. It is proper, in the interests of society as a whole, that somebody in that situation who may have been involved in some heinous crime of murder, rape or bank robbery and against whom the evidence is overwhelming should be deprived of his liberty pending trial rather than giving him the opportunity of killing, raping or robbing some other innocent victim. If we look at the issue in that light we should consider whether the real crime is to release such offenders back into society on bail where they can commit further such offences with impunity.

Overall my view on the Fianna Fáil Bill is clear. It is a well meaning but half-hearted effort which will bring no solace to any victim or any improvement of consequence in the current situation. What is needed is a constitutional amendment to restore full discretion to the courts. I have made this demand for years and now repeat it. I am asking the Minister to urge the Law Reform Commission to give this issue top priority and produce its report with the minimum of delay. I am aware of the value of its reports. It traces the background to an issue and examines the position in other countries. I have no doubt that its report will be of great assistance to those of us who are concerned with the matter in question.

It seems that we may have a constitutional amendment on divorce next November. Our objective should be to ensure that we have an amendment on bail on the same date. It is only by restoring full discretion to the courts by way of such constitutional amendment that we can begin to resolve the problem.

Mr. Flood

I wish to share my time with Deputies Kenneally and Noel Ahern.

An Ceann Comhairle

I am sure that is satisfactory and agreed.

Mr. Flood

I congratulate my party's spokesperson on Justice, Deputy O'Donoghue, for bringing this legislation forward and allowing us an opportunity of having a detailed and through debate on the issue of bail. The fact that it is necessary to bring forward this legislation is evidence of the growing concern at the continuing problems of crime and lawlessness. The Bill gives us an opportunity to examine our bail laws. As has been pointed out by a number of contributors, there is great disquiet at present regarding the operation of the bail laws. Recent incidences, particularly attacks on members of the Garda Síochána, are very disturbing and show a ruthlessness on the part of the criminal fraternity who are obviously intent on thwarting the system of law and order. We should be concerned at this emerging trend.

The weekend attack on the home of a member of the Garda had ominous undertones and indicates the lengths to which the criminal fraternity will go to thwart the law. It indicates a willingness on the part of the criminal to confront the institutions that preserve and protect democracy. It is against that background we are having this debate, and the Government should listen to the views and concerns expressed in this House and outside it about the current state of law and order.

State institutions are under threat and there appears to be no legisative response from the Government—the Tánaiste was questioned about this matter in the House today. A number of issues need to be considered. The Juvenile Justice Bill, which I called for when my party was in Government, must be introduced without delay. As I understand it a great deal of work has been done on this legislation and I hope it will be brought before the House as soon as possible. Legislation to deal with drug barons should also be expedited. A great proportion of crime can be attributed to the operations of drug barons and legislation is clearly required to deal with this problem.

The public demands action from the Government to ensure the criminal element in society faces the full rigours of the law. High standards in terms of law and order are essential. As the trends in crime are changing and becoming more complex, society must be prepared to accept changes which will enable us tackle this growing problem. I think most reasonable people would be prepared to accept a change in the bail laws as recommended in this Bill. People know that the hands of the Garda and the Judiciary need to be strengthened. At present they are fighting the rising crime wave with one hand tied behind their backs, which is unacceptable.

A matter of particular interest to me is juvenile crime. It has been shown that the involvement of juveniles in crime is increasing and is prevalent particularly in built-up areas. A whole range of issues must be tackled in this regard including homelessness, drug trafficking, under-age drinking, vandalism, car robbery and so on. We need to strengthen the hands of the Garda and the Judiciary either through the Juvenile Justice Bill or proposals such as those put forward in this Bill.

If one reads tonight's Evening Herald one will see several references to crime. For example, the front page reports on the Garda seizure of £3.6 million worth of illegal drugs in the Shannon region. Those of us who have been following the issue of the importation of illegal substances and the professionals engaged in the fight against such importation will know that drug seizures make up a very small portion of the total amount of drugs imported—it has been suggested that seizures account for as little as 10 per cent of all drugs imported. That gives an idea of the volume of illegal substances imported.

The Evening Heraldalso reports on the sad story of a woman in a Dublin suburb who refers to her life of hell in her home. As a result of taking part in a neighbourhood watch scheme which cooperates with the Garda in the fight against crime at local community level, she and her family are paying a very high price. They and many families like them are forced out of their homes while the alleged perpetrators are allowed to go free. The report suggests that there is a shortage of gardaí in Dublin which hinders the force in its fight against crime.

Another report in the Evening Herald states that private security men are policing a meeting of the Garda in Galway. I wonder why the protectors of law and order find it necessary to employ a private security firm to guard their meeting. There are serious questions to be answered in this regard.

A point that will be of interest to the Minister of State, Deputy Currie, who, like me, represents an urban area, is the two hour bus stoppage. Bus drivers have been forced to operate a two hour stoppage due to vandalism on buses. All these issues of crime need to be tackled.

Great annoyance is caused in communities when individuals brought before the courts are granted bail and allowed mingle with the people against whom they have allegedly perpetrated crime. That is a serious matter of contention, particularly in urban areas. The proposals in the Bill dealing with restricting individuals on bail are important in the fight against crime. Those proposals give an important support to the Garda and impose conditions which of themselves, though not very punitive, strengthen the hands of the Garda and the courts while dealing with individuals on bail. Because of changing trends and the complexities of criminal activity we must be prepared to sacrifice some of our hard won freedoms if we are to support the institutions and bodies whose responsibility it is to provide law and order and to protect society. If we fail the individuals and organisations in that task, as a Legislature we will let society down and we should not do that. The Government should seriously consider and accept Deputy O'Donoghue's Bill. When we in Fianna Fáil were in Government we took a number of imaginative decisions and accepted legislation from the Opposition. We created history for one Deputy by the number of Private Members' Bills we accepted. There is a quid pro quoin that regard. If we are serious about tackling crime and the Government is serious about working with all sections of the House, it would do well to accept Deputy O'Donoghue's Bill, recognising that ultimately it may be necessary to hold a constitutional referendum on the wider substantive issue. Deputy O'Donoghue's Bill tackles specific and individual facets of bail and it should be possible for the Government to accept this good legislation and support us in our fight against crime.

Mr. Kenneally

I, too, welcome the introduction of the Bill which is a positive measure and a genuine attempt by the Fianna Fáil Party to come to terms with the ludicrous operation of our bail laws. The Minister made a public promise that there would be a referendum on bail in the autumn. I was dismayed that the Minister retracted that promise, presumably because she could not deliver on it. It is sad if elderly people trembling behind locked doors, and other members of the public, will not be protected as is their right because the coalition partners cannot agree among themselves.

It is my belief and that of my party that a person is innocent until proven guilty and there must be pressing arguments and convincing evidence before departing from that widely held and basic tenet. However, we must also serve the wider population and look to their physical welfare and the safety of their property—two freedoms also guaranteed by the Constitution. It is the task of effectively marrying all those concepts which faces us and this measure is a genuine attempt to do that. We should not remove a person's freedom entirely, not even someone who has been charged with a serious crime, but where a prima faciecase has been established and there are reasonable grounds and compelling evidence to show that the person may be guilty of a serious crime, we should reasonably limit that person's freedom to whatever degree is necessary to protect society. Some people will say that most crimes committed by people while on bail are committed by drug addicts who need to steal to feed their drug habit, but ordinary criminals use the Constitution to make their lives of crimes easier and to escape punishment for their succession of crimes. Once charged with a crime, which will probably earn them a custodial sentence, they stash away a nest egg which will see their dependants through while they are in prison. One might ask why is it necessary to introduce this legislation? It appears from the Government's foot dragging on this issue, it is unwilling to bite the bullet and it has drawn back from promised action. However, something must be done to recover the ground taken over by the criminal element and those with expensive drug habits.

Many people commit further offences while on bail. The Director of Public Prosecutions has brought a number of test cases before the courts seeking to challenge our restrictive bail laws. The courts have decided that constitutionally, there is no basis on which bail can be refused on a probability that an accused, if allowed out on bail, would commit further offences. Bail is currently a right to which every citizen is entitled on the precept that all are presumed to be innocent until they are proven beyond a reasonable doubt to be guilty, but even within the scope of existing interpretation there is room for statutory improvement.

The criteria for refusing bail do not seem to be argued with sufficient vigour before our courts. The Supreme Court accepts that when a charge is serious, is likely to carry a heavy sentence and is supported by cogent evidence, such as a confession or being caught red-handed, the accused should be refused bail. Notwithstanding that, in many such cases bail is granted. In other words, those elements of our bail laws which would allow equality for the prosecution and which have been constitutionally accepted with regard to the rights of the accused are not being applied. The criteria to which I referred should be applied with greater vigour by our courts and arguments for the refusal of bail should be given more weight than they are at present. This legislation spells out in great detail what can be applied by the courts and makes it a good deal easier for the courts to apply stringent conditions to any bail allowed.

Much of the reoffending at present is drug related. It has been suggested that up to 80 per cent of defendants out on bail who reoffend do so in drug related incidents. Unfortunately, this is no longer a Dublin phenomenon, it has spread to every city and town. Small villages are now becoming contaminated in that way. A recent report indicated that ecstasy tablets can now be purchased for as little as £3 each. That is obviously to generate a demand and they will not stay at that price forever.

It is claimed that more money spent on providing practical services for drug abusers will not only lead to their being rehabilitated, but will lower the crime rate generally and the rate of crime committed while accused persons are on bail. We must also seek to stop offenders from reoffending by putting greater responsibility on bailspeople for the actions of the people for whom they stand bail. It would be wrong, however, to assume that only criminals involved in drugs activity reoffend and make use of our liberal interpretation of bail laws. Ordinary criminals are also taking advantage of the loopholes. They have made a mockery of our bail laws which have become a joke and contribute to our revolving door system of law and order which has been allowed to flourish for far too long. The people whose activity I would like to see curtailed are those who commit crime in their full senses. I am concerned that the view is too often taken that every effort should be made to ensure that the civil liberties of the accused are not infringed and we are almost apologetic for having arrested them in the first instance. Too little attention is paid to the rights of the victim which should be paramount and any improvements in our law should be to protect them, not the accused.

I particularly welcome section 6 which allows any member of An Garda Síochána who, with reasonable grounds, believes an accused to be in breach of any term of the order admitting him to bail may, without warrant, arrest the accused person and bring him before the court to which the case has been remanded as soon as is reasonably practicable. That is not just desirable, it is common sense. If the Minister was honest she would agree it is long overdue. In maintaining any type of criminal law system where people are accused of serious crimes it must be accepted that life for them is not similar to that of the ordinary citizen. Their freedom must be curtailed and society must accept that. A genuine attempt to speed up the work of the courts would help to limit disruption for the accused. In the meantime if the accused has to suffer a curtailment of his or her freedom, that is for the greater good and must be accepted.

Gardaí have been frustrated for far too long in trying to carry out their duties and often consider it is not worth their while bringing a case to court as they know the accused will not be taken into custody, will not have rigid bail conditions set down and when he or she reoffends a mechanism is not in place to adequately deal with the problem. This legislation supports the Garda and we have to be seen to support them in their work. An effective Garda force, a practical code of criminal law and a logical approach to bail and freedom are all part of what make life bearable for people, particularly those in urban areas. I repeat, I do not advocate the elimination of constitutional freedoms but the majority of people who walk our streets, drive throughout our cities and towns, who must triple-lock their doors at night, also have constitutional rights and need to be protected from individual criminals and gangs.

Section 5 (2) (a), (b) and (c) deal with a court order establishing the daily whereabouts of an accused person. That is not unreasonable or great hardship on an accused and should allow Garda time to be better invested elsewhere.

There was a recent media debate in which a Member suggested that any young person charged with a serious offence should be ordered by the court to be home by a given time each evening, which was scoffed at on morning chat shows. Yet, it is a basic fact that if a young person is at home in the evening, under parental supervision, as ordered by the court, he or she cannot be out committing offences such as stealing somebody's car or robbing a local shop. While it may constitute some curtailment of freedom, it is common sense. Even that suggestion was challenged aggressively by the Irish Society for the Prevention of Cruelty to Children. People must be made accountable for their actions and parents must be responsible for their children; that is what good parenthood is all about and if it entails a court order to enforce it, so be it. That aspect of the problem is dealt with in section 5 (2) (h).

To put into perspective an adult problem, any effective garda will know the three ‘Hs"; that is, the hoors, haunts and habits of those persons known or suspected of having committed a crime, in respect of which the thrust of the provisions of section 5 (2) will help them in locating a person on bail.

For the first time the provisions of this Bill constitute a realistic set of proposals to come to terms with the problems of crimes committed by people on bail. The present position brings our system of justice into disrepute. It is not surprising the electorate are frustrated when hardened criminals and others commit dozens of additional crimes while on bail. We need to reassure the public and take realistic steps to tackle the problem and this Bill constitutes a genuine attempt to do so. I ask the Minister to take its provisions on board, they are long overdue, the public seek them and have a right to see them enacted.

Mr. N. Ahern

I am glad to have an opportunity of contributing to the debate on this Bill introduced by Deputy O'Donoghue.

On rereading the Minister's contribution last week, I found she agreed with Deputy O'Donoghue in many respects. While she was not very critical of the Bill she could not see her way to accept it. She gave statistics of crimes committed by people on bail which clearly demonstrated that they have risen dramatically in recent years, thus identifying the enormity of the problem. In addition, she referred to the conditions under which our courts can refuse to grant bail. Nonetheless, she appeared to suggest that, as the provisions of this Bill would not solve all the problems, she could not accept it, contending that she and her Department were engaging in a comprehensive review of all aspects of our justice system which, when completed, would enable them to introduce an appropriate Bill.

I remind the Minister that is not the reality in today's world, it is a case of endeavouring to remedy the weakest link in the chain at any given time. In the real world, this or no other one Bill will solve all our problems. However, we must avail of such opportunities as present themselves in endeavouring to solve some, even if they are the weakest links in the chain.

I do not doubt the Minister's commitment—in her statement some weeks ago—to tackling the problem. Unfortunately, it appeared she was not speaking on behalf of the entire Cabinet and was quickly criticised by some of her colleagues. That did not surprise me, as some Members of political parties while adopting an anti-crime posture at times appear to express greater sympathy for those who commit such crimes than for their victims. I am referring in particular to a couple of Members of the Labour Party to whom I am used to listening here and with whom I serve on Dublin City Council. I think Deputy Joe Costello is one and, at city council level, Deputy Roisín Shorthall in the same category. I regard them almost as the "soft on crime" wing of the Labour Party.

We cannot send out confused messages to the public. We must speak with one voice, be determined and let criminals know we will not refrain from taking tough action against them. While on different issues I suppose we all tend to be locked into "time warps", on law and order issues a few Members are locked into a 1970s attitude, when they probably perceived themselves as having been the radical students of that era. While they may have had reason to be unhappy, at that point we had the heavy gang—within the term of office of a previous Fine Gael-Labour Coalition Government—such people, having cast aside their radical student days, are now members of one of the parties against which they rebelled at that time.

We cannot object to crime while, when enacting laws to combat it, we become totally hung up on individual rights and liberties. The crucial question is whether the maximisation of individual rights and liberties is commensurate with the common good. We must focus on the matter rather than on the individual rights of any potential criminal.

I was surprised to hear on a radio programme last evening that the magazine or newspaper owned by the chairman of a semi-State body—I think it was the Independent Radio and Television Commission—appeared to conduct a campaign for the legislation of certain drugs. At a time when board members of certain semi-State bodies are threatened with removal from office because of their affiliations with the Fianna Fáil Party, perhaps because some civil servants may have been critical of them or whatever, I find it extraordinary that an acknowledged ministerial adviser— probably a very good one in many respects—should conduct a campaign for the legislation of drugs while we here continue to discuss that basic problem. One wonders whether this gentleman would avail of our airwaves to continue to push that campaign.

I reiterate that we must speak with one voice, demonstrate that we are tough, mean what we say and are prepared to tackle the problem. Crime has gone through the roof over the past two decades or more. One could advance many excuses; for example, that Governments and the Garda at many times in the past 25 years were more concerned or preoccupied with the security position in Northern Ireland. It it is about time we looked to the protection of our citizens in the South, in many respects the weak and vulnerable. While the type of large dramatic £2 million robbery always hits newspaper headlines, it is the type of petty crime committed at the street corner against a senior citizen, perhaps somebody going to collect a pension or shopping, almost rubbished by some as merely constituting petty crime, that really instils terror in our citizens.

Now that the security position has changed I hope politicians can together address this problem in a meaningful way and give society its basic right to protection. I am disappointed the Minister did not accept this Bill. While it does not give all the answers, she agreed it gives some. I hope she adheres to her promise that if constitutional change is required she will provide for it next November.

Kathleen Lynch

I wish to share my time with Deputy Eamon Walsh.

An Ceann Comhairle

I am sure that is satisfactory and agreed.

Kathleen Lynch

On researching the Bill I realised it deals with a very narrow area of crime and that the debate would be repetitious and wander into other areas. However, I did not expect to be brought down memory lane to the 1970s by Deputy Ahern. I do not recall Deputy Ahern being very loud about the injustices committed against innocent as well as convicted people then. It is amazing how in an effort to promote an argument people use, and in this case abuse, history. Members of Fianna Fáil at that time did not protest about people being held for too long or about people being abused while in custody. I am shocked that Deputy Ahern knew so much about this.

In proposing how to deal with people who have committed crimes or whom we suspect of committing crimes, we should examine Deputy O'Donoghue's Bill in the context of its effects on for instance people from Caherciveen, a small community with which I am very familiar. To all intents and purposes, the measures proposed would involve virtual house arrest. The Garda would have the right to arrest people out on bail without warrant and have them brought before the nearest court. I could not imagine that happening in practice. Nor could I imagine the Garda knowing the exact movements 24 hours a day of those out on bail. Deputy Ahern referred to the drain on security forces in the context of Northern Ireland. Where would we get the necessary resources or gardaí to virtually live with a person while out on bail?

We appear to have quickly forgotten the position — only recently sorted out —of the Guildford Four and the Birmingham Six. In those cases, it was a question of "guilty and we will prove you guilty" as opposed to the proper system of justice which prevails here. If at any stage I am confronted with the system of justice about which I speak, I hope I will have the protection of our Constitution.

We do not have figures for white collar crime. Even if such people were caught, this Bill would not apply to them because, after all, they are gentlemen and would have committed the crimes in the interest of their lifestyles. As the Bill will relate only to those who commit petty crime and who cannot afford lawyers to attend a bail hearing, the matter must be given careful consideration. When the Criminal Justice Act, 1984 was introduced figures for crime committed by people out on bail reduced and although they have increased again they have not reached the level recorded prior to the introduction of that Act. Last year the figure, at 4,416, was half that recorded before the introduction of the 1984 Act.

We are not tackling the problem correctly. The former Minister for Justice, Deputy Geoghegan-Quinn, estimated that a more stringent bail regime would necessitate the provision of 600 additional prison places at an estimated capital cost of approximately £80 million with annual running costs of £20 million. That is a very conservative estimate because, if only half those who were given bail in the first six months of last year were held in custody, a total of 1,000 additional places would have been required with the inherent capital and annual running costs. Are we really prepared to take the matter seriously and expend such a large amount of public money and energy on a system to keep offenders off the street?

Would innocent people have a right to compensation for being kept in jail? Are we to go down the road of the French where a person can be interned for up to four years while awaiting trial? The main issue in all of this relates to the trial. While there have been improvements in recent years because of the efforts of the previous Government, there are still large waiting lists in our courts system. Should people who have to wait up to two years to have their cases heard in court be kept in jail in the meantime? How could that be justified if they are innocent? Should we not examine the causes of crime?

It is extraordinary that every time the crime rate increases we examine ways of punishing the criminal rather than ways of treating the victim. Why have we not initiated a witness protection programme? Why should people give evidence against hooligans and thugs without being afforded protection? Cases were instanced today of people living in terror in their homes. Why are we not looking after those who support us? We should look at the causes of crime and consider having better rehabilitation programmes. Surely that is where the answer lies but there were huge cutbacks in education funding for prisons in recent years.

Anyone who witnessed the recent events in relation to drug-related crimes would have to admit that drugs are having a major impact on society and are the cause of crime. Drug-related crime is usually vicious because of the extremes to which people are prepared to go to fund their habit. The question of bail and where we would put the people to whom we refuse bail must be very carefully considered. In recent weeks, Fianna Fáil made statements to the effect that this Government intends to engage in reckless spending and will lose control of the public purse, yet it produces a Bill such as this. Money should not be a barrier when it comes to protecting people or providing places of detention for criminals but this Bill does not provide the answer.

If we had spent as much time discussing the causes of crime, as we have in discussing bail, we would probably have achieved something in the last decade. We would not now be discussing bail as it was discussed in 1984 in virtually the same circumstances. Bail only becomes an issue at the end of the criminal cycle. Unless we implement effective intervention mechanisms and speed up our pre-trial procedures, we will simply end up providing more prison places and putting more restrictions on individual liberties without having addressed the central issue, namely, crime prevention.

Mr. E. Walsh

During his contribution Deputy Ahern asked that we consider speaking with one voice. If we were to follow that logic, we would get into a dangerous area where dissent would not be allowed. It is important that we maintain the tradition of examining every legislative measure governing the way we live. If we speak with one voice we might develop a regime such as that which existed in Germany in the past. I am not suggesting that Deputy Ahern would advocate that type of regime, but that is the danger that faces us if we do not question and debate issues that are of great importance to us. Bail provides for a fundamental right of liberty and to deprive people of that is a serious matter and should be considered so.

We are being asked to respond to a serious challenge to law and order. The natural reaction is to do whatever is necessary to deal with the people perpetrating serious crimes. However, we must also consider the consequences for everybody who appears before the courts because when we legislate, we legislate for everybody. Unfortunately, when we cast the net into the sea we catch many things that we never expected. If the mesh is too small, we are sorry afterwards for having taken things we did not want. There is a danger that we might bring people into the judicial system who were never intended to be brought before the courts and, as Deputy Lynch so eloquently put it, what do we do with people who are found not guilty following trial? They may have been locked up for some time and deprived of bail. We must consider whether such a person has the right to bring proceedings against the State for wrongful incarceration. Changing the rules in regard to bail is not just a simple process of bringing forward a Bill, although there is a need to deal with the problem.

Unfortunately the scales of justice have tipped in favour of the criminal, particularly the drug barons and those who commit crime to feed their habit by using the weaknesses in the system. That is a serious matter which must be addressed. The majority of people who commit crime while on bail are drug addicts awaiting trial. They continue to commit crime to feed their habit. The denial of bail in such cases should be seriously considered because it may help to break the cycle of crime.

Deputy Lynch also referred to the numbers of people who commit crime while on bail. The number increased from 2,494 in 1990 to 4,416 last year. That is a substantial increase and we must consider what we can do about it. Many gardaí who work hard to bring people to justice become very frustrated when they see them walk free from the courts to immediately engage in criminal activity. With great difficulty the Garda obtain as much evidence as possible to bring people to court only to find they are released on bail thereby allowing them to commit further crimes against society.

The items we must consider where bail is permitted, fall under two headings. Bail can be restricted where there is a danger that the accused will not attend court for trial. That is a reasonable proposition because if there is not a mechanism to ensure that people face the courts, our judicial system has failed. Bail can also be refused if there is a danger that the accused will interfere with witnesses or jurors. This is another serious matter as it could prevent the justice system from bringing the perpetrators of crime before the courts and sentencing them to an appropriate penalty.

Obviously the Constitution must be looked at when we consider changing these rules. If we intend to change the Constitution, we must examine the wording carefully because in the past we found that reactive thinking produced complicated wording and prevented people taking appropriate measures in relation to this and many other subjects.

I agree with the Minister's statement that we should await the report of the Law Reform Commission which will provide valuable information we should take into account when making decisions on the question of bail. The policy document, programme for A Government of Renewal, provides for examination by the Law Reform Commission of the subject and allows the courts to refuse bail when they consider it desirable to do so. The Minister is currently awaiting this report.

The Minister also indicated to the House that her officials are examining a suitable form of wording for the amendment to the Constitution. I hope this will not take too long. Unfortunately criminals are usurping the privilege that people are innocent until proven guilty. It is serious when the home of a Garda Síochána, a member of the force that defends society, is attacked by criminals, people who have nothing but the destruction of society, as we know it, as their aim. This form of intimidation of the Garda Síochána, and in this case the senior member of the force on the case, is reprehensible. This House would do well to mark that and reassure the Garda Síochána that whatever can be done to bring these people to justice will be done.

A number of other points should be considered when discussing bail. We are making the assumption that all criminals should be sent to jail. On many occasions we have considered the possiblity of introducing other measures such as community service orders, curfews and other forms of attachment such as financial penalties. These are important measures when considering the problem of habitual offenders or those who commit crime while on bail. We should ask what is the best form of punishment for the crime, being deprived of liberty or some other punishment. There is a simple answer. I assume the courts are adequately empowered to deal with all aspects of crime.

It is easy to say that people must face the judicial system and suffer the penalties imposed on them without any regard to the controls that should be in place by parents. In many cases, young people who are not of an age to be brought before the court in their own right are brought before the juvenile courts. They are involved in joyriding, intimidation, serious house break-ins, robbery, thieving and so on. Many of the difficulties communities are experiencing could be addressed by severe penalties and restrictions on the households of the young criminals. We should try to design a system that recognises the good in people and consider those elements when deciding penalties for the crime.

There are problems in every Dublin constituency and recently in the Cork area we witnessed an outbreak of crime that one could not possibly have envisaged. The media is now considered a suitable target. Drug barons seek to intimidate the media and make them report crime in a particular way. This is a sinister step and unless we take dramatic action against drug barons the very fabric of our democracy could be endangered. They have powerful weapons at their disposal, large sums of money, international networking and unlimited control in the area of weapons and easy prey. Young people who have been exploited by drug barons behave like zombies when hooked on drugs and will do anything for them. There is a serious danger to democracy and we should put every possible means to deal with the drug problem at the disposal of the Garda Síochána. The Select Committee on Security and Legislation formed a sub-committee to deal with the drug crisis. Members hope that the sub-committee will put people on notice that we are determined to co-ordinate efforts to put an end to this serious problem.

We appreciate the various services dealing with this crime wave. The Naval Service has been successful in bringing to light large quantities of drugs being dropped at sea, the diligence of the customs service at airports and sea ports has uncovered large quantities of drugs being brought into the country and the gardaí hunt for places where drugs are stashed away for distribution. We need to give a signal that we support the operation of the security forces. A coordinated approach will enable more information to flow between the three services and we need to give them what is required to deal with this problem.

I pay tribute to the people involved in community watch, they are brave enough to come forward with information and supply the gardaí with important intelligence. They are very seldom identified and operate quietly in the community. They pass on small pieces of information to the gardaí, often not knowing the significance of the information. This is an important resource and we should use it well. We should ensure that they continue this work that enables the system to work effectively and protects us from the criminal elements.

Mr. M. Ahern

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

An Leas-Cheann Comhairle

Is that agreed? Agreed.

Mr. M. Ahern

I commend Deputy O'Donoghue on introducing this Bill which is a major contribution at two levels, first in addressing the issue of bail which the Minister for Justice handled disastrously. Without adequate preparation or even the courtesy of seeking the opinion of her Cabinet colleagues she promised to hold a referendum on the issue of bail but not long afterwards she realised the blunder and since then she has tended to remain silent on the issue. I hope this is not indicative of her actions behind the scenes. We are all well aware that in town and country the incidence of crime committed by people on bail has risen sharply in recent years. It is abundantly clear that the bail laws need to be tightened. However, a balance must be struck between the rights of the individual to personal civil liberty and the need to protect society from criminals. I agree with Deputy O'Donoghue that the best way of doing this within the present constitutional parameters is to give the court discretion to attach a wide variety of conditions to an order granting bail. This would have the effect of putting bail conditions on a statutory basis which the courts could apply to habitual criminals. The conditions include the power to exclude the accused person from a particular area, make a curfew order and forfeit the sum pledged by the bailsperson if the accused commits a crime while on bail.

It is evident that most crime is committed by people who are addicted to controlled substances. In the Dublin city area it is estimated that they are responsible for upwards of 80 per cent of crime. I do not know the figure for Cork but there is an increase in crime committed by people involved with drugs. It is sad to see society developing in that way. As we know, those addicted to drugs do not take the consequences of their actions into consideration. They will do anything to get the next fix. Doctors who treat these people say they are not responsible for their actions when they are addicted to substances such as heroin. We must try to limit the opportunities for people who are likely to commit offences if they are on bail and one way of doing so is to have stricter bail laws.

The Bill provides for the court to require an accused person to keep the peace, be of good behaviour and abstain from any form of criminal activity including the commission of an offence under section 3 of the Misuse of Drugs Acts, 1977 to 1984, for the duration of the recognisance. The Bill also empowers the court to require an accused person to attend a designated location on specified days and times for the purpose of providing a urine sample which may be analysed to ascertain if the accused is in breach of the aforementioned by consuming a controlled drug other than one prescribed by a medical practitioner as part of a recognised drug treatment programme. However, tests should also be carried out at unspecified times and at unspecified locations.

Where an order is made in relation to drug offenders the court will be obliged to inform the accused person of the location of the nearest centre for drug addiction treatment and direct that an appointment be made for the person, if requested. If there is a breach of any of the conditions imposed by the court on granting bail, it will be empowered, subject to certain conditions, to retain all or part of the sum pledged by the bailsperson. This provision should be acted on as there is no point in setting down conditions unless they are adhered to. The law dealing with bailspersons would be further tightened by this Bill to ensure not alone the sufficiency of the bailsperson but also his ability and commitment to ensure that the accused will comply with the terms of the bail order.

It is important to protect the presumption of innocence that underpins the judicial system and the right to liberty but it is also necessary to protect society from criminals determined to commit crime on bail while awaiting trial. The Bill is aimed at preventing well known criminals who have been apprehended and brought before the court being immediately released pending trial. The present law is based on a Supreme Court judgment in 1966 but the level and nature of crime today has altered considerably since then. So much crime is now drug related and the fact that addicts awaiting trial are frequently at liberty gives cause for serious concern when experience tells us that not only are they likely to commit crime while on bail but are almost certain to do so.

Deputy O'Donoghue framed the legislation within the present constitutional parameters and the change to provide that bail could be refused on the basis of the likelihood that further offences would be committed would require an amendment to the Constitution. The Minister for Justice, Deputy Owen, gave a public promise that a referendum would be held on bail in the autumn but she failed to receive the public backing of either the Taoiseach or Tánaiste. Her commitment to a referendum rang hollow against the background of the failure to attempt to introduce legislation within the constitutional parameters. She has engaged in political foot dragging, prevarication and indecision. They are of little comfort to the victims of crime which is escalating day by day.

The Government is in front of everything and behind nothing. It is talking but not acting. It is time to do something rather than say on radio and television what it will do. In Cork and around the coast drugs worth millions are confiscated. In addition to changing the bail laws we must extend the power of the Navy. The Naval Service needs new boats and facilities if it is to control entry to Ireland via the coast. The Navy is doing tremendous work under the strictures imposed on it. The Government should get its act together and give the necessary powers to the Naval Service and customs officers working on the south coast to allow them continue the fight against the importation of drugs. Otherwise there will be a continued growth in the sale and use of drugs and Ireland will be used as a gateway to Britain or the Continent.

I commend the Bill to the House and hope the Minister will take it on board and ensure that it is enacted immediately.

Mr. B. O'Keeffe

I thank Deputy Ahern for sharing his time with me and congratulate Deputy John O'Donoghue on bringing this important Bill before the House. The public is anxiously waiting to see whether the Government will support this timely legislation.

Today I spoke to a man who lived in the United States for 20 years. During that time he lived in many cities, including New York, Washington, San Francisco and Los Angeles. He returned to Ireland two years ago and his commentary on life here is a sad one. He told me that he had seen more crime in the streets of Dublin during the past two years than he had seen in the United States during the past 20 years.

Mr. Currie

Was he sober?

Mr. B. O'Keeffe

He was. The statistics prove that we are now living in bandit land. Our children live in fear, old people, particularly those living in rural areas, are terrified in their homes at night and ordinary citizens are apprehensive about walking the streets of our cities. We seem to have enshrined in our Constitution and legislation protection for individuals accused of crime. It is important to protect the rights of these individuals on the basis that they are innocent until proven guilty but in doing so we seem to have forgotten about the rights of the victims of crime. This Bill seeks to address this problem.

The Minister's inaction and her inability to appear on the "Prime Time" programme has sent the wrong message to ordinary people and the perpetrators of crime. What are people to think when the Minister states publicly that she intends to hold a referendum on this matter and is then silenced by the lord and master, the Tánaiste and Minister for Foreign Affairs, Deputy Spring? How can people have confidence in a Government in which there is so much dissension on the basic measures which need to be taken to reduce the level of crime on our streets? There is no cohesive effort being made by the Government to deal with this problem, it has no outspoken and unanimous view on it. The public is well aware of this and that is why this Bill assumes such importance. Since the Government came into office five months ago we have heard nothing but announcements about reviews, hiring specialists and carrying out research programmes, all of which lead to procrastination rather than the urgently required determined action. In many ways the Government has failed to take a lead in the fight against crime, to implement proposals, to take initiatives or put together any cohesive policy. It is important to now call on it to ensure that this determined action is taken from here on in.

The Garda Síochána are very frustrated at their lack of power to apprehend criminals and have them convicted. In many ways tá siad ag snámh in aghaidh easa. They are asking what is going on and why they are not given the necessary resources and manpower. There is nothing worse for the Garda Síochána than to see people with previous convictions being let out on bail during which they will continue their life of crime.

Before referring to the necessity to change our bail laws, I wish to refer to the extremely serious problems in the court system in Cork. It is now estimated that 90 per cent of criminal cases in Cork are transferred to Dublin. The automatic right of people to apply to have their cases transferred to Dublin is causing untold problems and delays. Today a Circuit Court judge in Cork received nine applications for the immediate transfer of cases to Dublin, thereby creating a logjam in the Dublin courts and leading to the schedule for the Cork courts not being completed. The Circuit Court sits in Cork from 7-17 February, 9-12 May, 13-20 June and 31 October to 10 November. Even though there is a long waiting list in Cork only a certain number of cases are scheduled for each court sitting. The whole administration of justice in Cork is disrupted by the automatic transfer of these cases to the Dublin Circuit Court. My information is that because of what is happening, with the automatic right of transfer of cases from Cork to Dublin, there is a delay in Dublin from 18 months to two years. What happens during that period while people are out on bail? There is substantial evidence to suggest a tie-up between people on bail and their continuing to commit crime.

Debate adjourned.