I move: "That the Bill be now read a Second Time."
The Minister for Justice is due to move the Second Stage of a Bill on Thursday next designed to tackle the menace of drug trafficking in our society. What useful purpose will this Bill serve if, in the meantime, nothing is done to restructure our creaking criminal prosecution service, to change our bail laws, to confront the issue of the so-called right to silence, to modernise and speed up criminal court proceedings, to bring our law on sentencing up to date and to tackle the revolving door chaos in our prisons? These are issues the Minister can no longer ignore. I do not pretend the chaos in our prosecution system in the courts and in prisons is the fault of this Minister, but it is her responsibility. We will support the Minister's Bill on Thursday, but in return we request her to support action on the real problems in the criminal justice system
This Bill is the real agenda on the prosecution and punishment of criminal offences. It provides for major changes in our laws relating to the prosecution of offences, criminal procedures relating to accused persons, the extent of the right to silence, bail, control and management of the prison system, sentencing and the law relating to pardons, remissions and temporary releases. Its philosophy is integration, speeding up trials, modernising criminal procedure and eliminating loopholes in the existing law which are well known to everyone and to this Government. A great deal has been said about the revolving door policy in our prisons. There has been a frustrating debate with repetitive dialogue by legislators who all agree that major changes are needed to come to grips with a defective criminal justice system. The debate has been marked by an extraordinary degree of consensus, yet there is apparent paralysis and a frustrating inability to make the changes we all agree are needed.
Members will be aware that I have a particular interest in the role of the Director of Public Prosecutions in the prosecution of offences. During the past two years I tabled dozens of questions to the Taoiseach on the functions and operation of the office of the Director of Public Prosecutions. It was only after two years persistently questioning the Taoiseach that he eventually agreed to an internal inquiry into the operations of the office of the Director of Public Prosecutions as part of the Strategic Management Initiative. I welcome this.
It should not be so difficult for a Deputy to extract statistical information on the rates of prosecutions in the Director of Public Prosecutions office. A greater degree of accountability is required in the public interest. It would not prejudice the necessary independence of the office of the Director of Public Prosecutions. For my efforts in the past two years I have been accused of politicising the office of the Director of Public Prosecutions and of "political sniping at the Director of Public Prosecutions under privilege." I make no apology for my efforts in this matter because no arm of the criminal justice system, particularly the key area of decision-making as to whether to proceed to prosecution, can be permitted always to be independent, devoid of accountability and closed to scrutiny by any person at any time.
This Bill provides that the Taoiseach can make regulations under section 10 of the Prosecutions of Offences Act, 1974, to allow for the establishment of a unified prosecution service. The Director of Public Prosecutions publicly called for the establishment of a unified prosecution service in the September 1995 issue of Communiqué, a Garda management magazine. He referred to the “absurd duplications and delays which were brought about by the current system whereby the decision-making function, which is his responsibility, and the actual running of the case is divided.” The Chief State Solicitor's offices run the cases in the courts on the instructions of the office of the Director of Public Prosecutions.
My Bill provides that these criminal prosecution functions of the Chief State Solicitor's office which is under the control of the Attorney General on behalf of the Director of Public Prosecutions, will be carried out in future under the control and management of the Director of Public Prosecutions, either directly or indirectly. This provision would increase the efficiency and speed of prosecutions and eliminate the lengthy and protracted correspondence between the offices of the Chief State Solicitor and the Director of Public Prosecutions.
Section 5 provides for an annual report by the Director of Public Prosecutions to be made to the Oireachtas. This would give a statutory basis to a recent suggestion by the Taoiseach that this might be possible. Section 6 provides that the Director of Public Prosecutions will be a capable and compellable witness before Oireachtas committees on the functions, policies and procedures adopted by his office. This section would not impinge on the independence of the Director of Public Prosecutions in that he could not be questioned on a particular case.
Recently I publicly criticised the Director of Public Prosecution's agreement to participate on a phone-in radio programme when he had not appeared before a Committee of this House and was reluctant to do so. When he stated publicly on the airwaves that he had not been asked to attend a Dáil Committee, I arranged for the Select Committee on Legislation and Security to invite him to come before it with a view to discussing prosecution policy generally. The invitation was issued in November and as far as I know, there has not been a reply from the director.
When I read the article in Communiqué on the prosecution service I immediately sought to raise these publicly expressed views of the Director of Public Prosecutions with the Taoiseach, who has direct responsibility for him in the House. Predictably, the question was transferred to the Minister for Justice and when she replied to it in due course I was flabbergasted to hear her say that she had not discussed these publicly expressed comments with the director nor did she intend to do so. She said that she had met him socially, but that the independence of his office precluded her from discussing this matter with him. Is it any wonder the criminal justice system is in the state that we find it when the Minister for Justice feels precluded from discussing with a very senior independent office holder of 20 years standing proposals which he has made publicly on the prosecution service?
On the question of the publication of an annual report by the Director of Public Prosecutions, the publication of such reports giving statistics relating to the category of complaints received by his office, the numbers of prosecutions initiated and the outcome would not compromise either the independence of the office or the good names of the people involved or alleged to be involved, since they would not be named. The annual publication of such a report would be a very useful exercise. The only method of extracting statistical information of this kind is by the tortuous obstruction filled route of tabling parliamentary questions.
From my experience of talking to the victims of crime and from the experience in other jurisdictions, what victims want is basic information. They do not necessarily want a greater degree of involvement in the trial, such as the right to address the court directly on sentencing, which happens in some US states and does not seem to work very well, they want information on the progress of the investigation, when the case will go to trial, the date to be set and some idea of what will happen on the day.
The parents of a child who was due to give evidence against an adult in a sexual assault case contacted me recently about their concerns. Because the child is under ten years, his parents wanted him to give his evidence by video link, which is available under present law, but there is no such facility in the court where the case was scheduled to be heard. His parents were very concerned about him publicly confronting his alleged abuser and were considering withdrawing him from the case if he had to do so.
From the allegation to the trial, our system of justice should include the victim. This is not the case and the necessary independence of the office of the Director of Public Prosecutions is being used to needlessly cloak the office in secrecy and unaccountability.
The question of bail forms a major part of this Bill and it is worth considering the background to the difficulties and complexities faced in amending our bail laws. The Constitution does not mention the word "bail" but the constitutional dimension of the bail issue stems from judicial interpretation of Article 40.4.1º which states:
No citizen shall be deprived of his personal liberty save in accordance with law.
By a process of judicial interpretation over the years, this Article has come to be a guarantee that no person should be deprived of his or her liberty by "stooping to methods which ignore the fundamental norms of the legal order postulated by the Constitution".
Prior to the O'Callaghan case in 1966, the right to bail pending trial was flexible. In favour of granting bail was the overall policy against remanding an accused in custody pending trial where bail could be granted in safety. Against bail, the courts looked to the seriousness of the crime, the likely penalty, the strength of the case, the prospects of a speedy trial, the criminal propensity of the accused, the attitude of the prosecution and the capacity of the accused to abuse bail to interfere with the evidence of witnesses. In other words bail was largely discretionary depending very much on the attitude of the judge and the facts of each case but the O'Callaghan case changed all that. The Supreme Court swept away the previous ad hoc judicial approach and excluded completely from consideration any suggestion that the accused might abuse his liberty to commit crimes. This notion, said to be of preventative justice, was stated to be unknown to our system of criminal law. This case forms the basis of the current difficulties and complexities about a change in the bail laws.
The Supreme Court rejected out of hand the suggestion that bail was a privilege. It was a right, they said, which would only be abridged for lawful reasons; in other words that the accused would abscond or interfere with witnesses. This has been described in Kelly's Irish Constitution as a spectacular liberal bridgehead on the territory of the State's claim to have accused persons remanded in custody pending trial. It is a very liberal approach and, perhaps, an experiment in liberalism which may have been appropriate to the low crime rate in the 1950s and 1960s. Was it a bridgehead too far? Many people feel it may well have been.
In 1989 the Director of Public Prosecutions sought to persuade the Supreme Court to evacuate the O'Callaghan bridgehead. That was not successful. Chief Justice Finlay said: "the criminalising of mere intention has been usually a badge of an oppressive or unjust legal system". Where do we go from here? These issues cannot be brushed aside and the Progressive Democrats would not seek to imply that the matter is a simple one. However, we should not be paralysed in the face of such difficulties.
The traditional notion of innocent until proven guilty must be balanced against the fact that nowadays many criminals are persistent offenders. Evidence of this high recidivism is that prisoners in Mountjoy have received, on average, ten separate sentences and that the number of convictions ranged from one to 93. In 1994, the number of offences committed by persons while on bail was 4,416.
The Progressive Democrats strongly believe that the bail laws must be reasonably amended. Bail should be hard to get in the case of an habitual offender who will abuse it to commit other crime. Recently the High Court upheld the constitutionality of the law relating to "binding over" persons in respect of their future conduct. The Bill proposes that bailsmen be required to become sureties for the accused and stand to forfeit significant sums where the accused commits offences while on bail. In this way, many habitual muggers, car thieves, drug addicts and house burglars would find that they simply cannot get bail to carry on their life of crime. This amendment is possible without a referendum because it falls short of a reversal of the O'Callaghan case and, surely it provides a sufficient balance between the interests of the public and the rights of the individual. There is no doubt that the present system of bail is too lax. It is not followed in other jurisdictions with similar legal systems to our own.
The extent of bail abuse is such that over 4,000 such crimes were committed in 1994. Our proposals would not interfere with a potential referendum to be held on the matter. The Law Reform Commission report, recently published, thoroughly examined the whole area of bail in this and other countries but it was significantly not asked to make recommendations for change. This is a matter which needs political direction and it is a sore point within the Government parties.