Private Members' Business. - Prosecution of Offences and Punishment of Crimes Bill, 1996: Second Stage (Resumed).

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

I wish to share my time with Deputy Shortall.

Is that satisfactory? Agreed.

The Progressive Democrats' Prosecution of Offences and Punishment of Crimes Bill, 1996, is nothing less than a fraud. There is an enormous gulf between the very carefully managed public presentation of the provisions and the actual provisions in the Bill. This pretence is perfectly in keeping with the nauseating populism last night on the Criminal Justice (Drugs Trafficking) Bill engaged in by Deputy O'Donnell of the Progressive Democrats Party or as she was described to me recently "the bland bombshell".

There are five counts on which I indict this Bill for fraud. First, the impression was carefully nurtured among the public in the media presentations that it is intended to make the Director of Public Prosecutions accountable for his decisions. A reading of the Bill makes it clear this is not what is provided for. Sections 5 and 6 which deal with this matter retain the confidentiality of the operations of the Director of Public Prosecutions in his decisions on specific cases. It is proper that this confidentiality and the independence of the Director of Public Prosecutions should be maintained, and it is utterly improper for the Progressive Democrats to come before this House and propose these rubbish provisions on annual reports detailing the number of cases handled and so on, and try to present that in public as an account to this House and therefore to the general public of the way particular cases are handled by the Director of Public Prosecutions. If I took the provisions of this Bill on board I would say there is no need for a preliminary hearing and according to section 13 people should be sent immediately for trial and should be given a fair trial before they are hanged. Second, the Progressive Democrats claim this Bill provides for a major tightening up of the laws on bail when it does nothing of the kind. Examination of the provisions show that what is proposed is either cosmetic or probably unconstitutional, as the Minister for Justice has pointed out. She made it very clear there must be very serious constitutional doubts about the detention of a person for an offence for which that person has neither been tried nor convicted and that is what is being proposed in the Bill. Most laughable of all are the provisions on estreatment of bail. The Progressive Democrats come charging in here on a white law and order charger, and say they will make sure that people who commit crimes while on bail will have their bail estreated immediately. Look at what is provided for in the Bill — it cannot happen until the person has been convicted of a crime alleged to have been committed while on bail and the provisions cannot have effect until after the person has been convicted of the first offence, an application has been made for a further extension of the period during which bail may be estreated and the person has been tried and convicted of an offence committed while on bail. There are a couple of things put in to make it appear as if it is much tougher than it is. Section 11 (2) states:

Where evidence is tendered in accordance with subsection (1) the burden of proof of the facts that a person was not on bail at the time an indictable offence was committed shall lie on the person alleging such fact.

The reason that provision was inserted in the Bill was to allow the Progressive Democrats to say they will be hard on these people who are committing crimes while on bail, that not only will bail be estreated but the onus of proof will be reversed in a case where it is demanded that the bail be estreated. That is what subsection (2) of section 11 is about. I wonder why. Why are the Progressive Democrats suddenly coming in here with this cosmetic provision for the reversal of the burden of proof when it comes to the estreatment of bail? That is not what they say in public because the public would not understand a single word of what that means. They put it in as another bit of macho posturing. The Bill reminds me of the AIDS quilt, every colour is in it, lots of little bits sewn up together to make it look as if——

The Deputy voted for it two years ago.

The éminence grise who writes all the speeches on justice for the Progressive Democrats and sits there, at least has the grace to look uncomfortable when the worst howlers are being trotted out here in the House.

I am not uncomfortable.

The provisions on bail ignore some of the parts of the Law Reform Commission's report on bail which the Progressive Democrats often quote to us. The third count in the indictment for fraud in this Bill is the claim, again sedulously nurtured, on the public airwaves, when the Bill was published, that it removes the right to silence. This Bill does no such thing. Even the most cursory inspection of section 15 will show that the Progressive Democrats, though they do not want to admit it, know perfectly well the reason this provision is in our law. If they read section 15 they will find it is hedged about with restrictions and caveats and conditions.

As it should be.

It does not remove the right to silence.

It curtails it.

Deputy Dukes without interruption, please.

For the Progressive Democrats to pretend it removes the right to silence is absolutely wrong.

Who said we removed it?

Deputies on that side will not bother me.

"Curtail" was the word used.

I ask you, Sir, for the same protection that Deputy O'Donnell so wide eyedly asked you for against the Minister for Justice last night.

The Deputy can be assured he can continue without interruption.

The fourth count has to do with the provisions in this Bill for preliminary hearings before a district justice.

The Deputy voted for that too.

I find that absolutely laughable.

But the Deputy voted for it two years ago.

Why do the Progressive Democrats want preliminary hearings before a district justice? Are the Progressive Democrats saying, because it seems to me that they are——

Why did the Deputy vote for it?

——they do not trust the Garda to interrogate suspects and that they want this done in front of a district justice? I wonder what has happened to the Progressive Democrats old position on the necessity of establishing a prima facie case, on which Deputy O'Malley in 1986 and 1987 was very eloquent when we talked about extradition. In section 13 they seek to remove that requirement and to turn district justices into simple interrogators, if that is the mood the Garda happen to be in at the time, or rubber stamps, if the violence provisions of section 13 of this Bill seem appropriate.

Part V1 refers to the prison service. This is presented to us as being a provision to make the prison service independent. If one reads Part V1 one will find it does nothing of the kind. It sets up a pseudo administration of the prison service so that it is given the appearance of independence but who makes the decisions? Who makes the financial provision? Who has to approve all the decisions? It is none other than the Minister for Justice. This Bill is nothing more than a cosmetic one that allows the Progressive Democrats to posture about saying they are tough on law and order issues while they know in their hearts and souls — Deputy McDowell has enough decency left in him to, as I have said, look uncomfortable when these howlers are being trotted out in front of us — there is no good reason for doing the daft things proposed in this Bill.

I am not the slightest bit uncomfortable. Why did the Deputy vote for this two years ago?

I am pleased to have the opportunity to speak on this debate on crime which is the biggest issue facing all of us, particularly in Dublin. The crime problem is an extremely complex one. An approach which is solely based on criminal justice measures shows a lack of understanding of the complexity of what is involved. If we decide to tackle the problem of crime, purely through criminal justice measures, there will be an insatiable demand for extra prison spaces. Clearly that is not the way to proceed. We need a co-ordinated and a comprehensive response to the issue which should be primarily targeted at tackling the drugs problem which is responsible for the vast bulk of crime in the city, if not in the rest of the country.

So far as this Bill seems to be a genuine attempt to address some of the criminal justice aspects of crime, I congratulate Deputies O'Donnell and Michael McDowell for the work they have put into its preparation. If anything, they have been too ambitious. The Bill touches on a substantial number of issues, perhaps too many.

The Deputy knows all about that.

As such. I understand the Minister's intention to reject the Bill but I am sure she has taken the opportunity of the debate to note the many points made. Clearly there is some support for a number of the proposals. Before commenting on the details of the Bill I wish to record my disgust at the nature and tone of the comments made by Deputy O'Donoghue during the course of this debate and during the debate on the drug trafficking Bill which is running parallel to this Bill. Deputy O'Donoghue should note that if he continues to act the prima donna that is the way he will be regarded and treated.

There are worse things.

A quick tour of the effect of the drug and crime problem in my constituency or in any of the Dublin constituencies might persuade the Deputy to take the issue and its complexity more seriously than he is doing. The Bill is in eight parts. I do not have time to deal with each part individually but, as in all Bills, some parts are more worthy of comment than others. I am in broad agreement with the thrust of the provisions of Part II relating to the prosecution of offences. The case to be made for the unification of the existing prosecution services is a good one. The delay in bringing cases to trial has been discussed at length here in debates on bail reform and the drugs problem. The public is rightly frustrated and would be prepared to support any measures which alleviate the problem. The unification of the prosecution service seems to be a reasonable step to take in this regard. Neither do I see any reason the Director of Public Prosecutions should not answer to the Dáil for the running of his or her office. This does not mean that we should comment on individual cases but the overall management of the office is of legitimate public concern. I note the Minister is not opposed to this development and is awaiting the outcome of the strategic management initiative. I urge her to act in this area if, on foot of the current review, substantial change is not proposed.

I welcome the Minister's announcement in her contribution to the debate that she will soon be making proposals in regard to bail. However, I think she should consider the proposals contained in this Bill. They are not complete and do not deal with the full complexities of the issue. I have no problem with seeking to deter people going bail for an accused where they are aware that the accused is more likely to default on that bail. I fail to see how this measure could be unconstitutional. I am not a legal expert but I do not see how there could be a problem with it.

Surely the conditions attached to a bail bond, as envisaged in the Bill, are consistent with the central tenet of the O'Callaghan case, namely, that the accused show up for trial and that people who know this to be the case do not take lightly the duty of going bond for them. This issue above all others has been the source of much rancour in the House.

I recognise that our bail law is one of the most liberal in Europe and I would not be opposed to change, but much can be done in advance of a referendum. Deputy O'Donnell's proposals are before us tonight. Last week, my party raised the issue of bench warrants and the difficulties sometimes involved in executing them. Evidence in this area is merely anecdotal but from my experience in speaking to solicitors working in this area, it seems to be a considerable administrative problem that we should take not of. We should also consider other difficulties in this area before we impose new obligations.

In the section dealing with criminal procedure, Part IV, I am concerned about the possibility of withdrawing an accused's right to silence. I am not setting my face against such a proposal; I can see the argument for it. If we have the power to compel witnesses, and often victims, to appear in court — in some cases with possible repercussions for their individual safety — should the accused, and only the accused, have a right to silence? There is not doubt that this is a fundamental change in our judicial system. The right to silence in common law is a fundamental right which has been in place for generations. We should not embark on any reform without first fundamentally examining the implications of it.

Part VI of the Bill addresses the issue of prisons. I fully support the establishment of a separate prisons board, which has been an issue for some years. I recognise the Minister is examining the matter but she should at least be moving towards action on it at an early date. She should not be deterred from doing so by her departmental officials whose own interests in that regard is quite clear. This Part of the Bill also has implications for Part VII and I am sure if the prisons board is established, these other sections will be taken into account.

Sections 22 and 23 seek to impose obligations on the Minister in regard to prison spaces. As the Minister pointed out, these obligations already exist and I agree with her that the Minister in charge should retain some flexibility in this area. I cannot support this particular aspect. I am surprised that such a suggestion should emanate from the Progressive Democrats. The Minister has not mentioned it but I am sure there are considerable financial obligations involved in those sections and I am not sure that those financial obligations have been taken into account in the Progressive Democrat's five year plan for the nation's finances.

It is unfortunate that the framers of the Bill did not address just one of the many issues they have raised in it; the Bill would have been all the more effective if they had done so. It attempts to deal with too many areas while not dealing with any one of them satisfactorily. There is too much in the Bill; that which is good is not adequately developed while that which is bad had not been sufficiently thought through. I repeat my earlier remarks, however, and commend those responsible for putting a genuine effort into the preparation of the Bill.

I wish to share my time with Deputy Molloy.

I am sure that is satisfactory and agreed.

I am pleased to see this Bill before the Dáil. It is a matter of regret that apparently it will be voted down by the Government's current majority. The arguments in regard to the various sections were put extremely well and fairly by Deputy Shortall in her contribution and I wish to contrast that with the polyfilla rubbish we heard from Deputy Dukes. Deputy Dukes is not a fool and it is regrettable that he came in here tonight exhibiting himself as if he were a fool. It is unfortunate that he did not wait to listen to more of what Deputy Shortall had to say because whenever she touched on a section that he had referred to, she said virtually the direct opposite in each case to what Deputy Dukes said. That shows that the Government's opposition to this Bill is political rather than practical and it is regrettable that the Government and the Minister for Justice, who had made such heavy weather of her office for the past 15 months, should turn down a measure that is so obviously needed, that is well prepared and which, if it has any defects, is open to amendment. The Bill is being turned down simply for political reasons and we will have committees, review groups, etc., examining all aspects of it but nothing will happen.

Quite some time ago I was Minister for Justice and I recall the atmosphere of the times, both inside and outside this House, was that virtually every measure one brought forward was opposed and howled down. No support was forthcoming for my efforts as Minister to cope with what was then developing as a very serious subversive crime problem. Happily, at that time, what is called in the trade "ordinary decent crime" was not as prevalent, as widespread or as vicious as it is today. It was a difficult task to undertake at that stage when virtually everything one tried to do was opposed at great length and frequently with great bitterness.

The present Minister for Justice, whatever woes she may feel have befallen her, finds herself in the directly opposite situation. She is criticised in this House for her unwillingness to do enough and, at times, her unwillingness to do anything. She has been handed a Bill, extremely well prepared by Deputy O'Donnell with the assistance and advice of Deputy McDowell, which deals admirably with a number of the most pressing issues currently facing this country. If the effect of the Bill were understood by every citizen, the support for it would be overwhelming — 95 per cent plus — because its provisions are reasonable, necessary and, so far as I can judge, constitutional. It was interesting to hear Deputy Dukes complaining that the Bill is not tough enough and alleging that there are sections in which various items are hedged around by conditions. That has to be the case in the system within which we operate.

The first Part of the Bill relates to prosecution of offences and proposes sensible changes in the law and in the practice of prosecution. Those changes are urgently needed. It has been a marked feature of the situation in this country for quite some years that the prosecution service is not what it should be, that many prosecutions fail due to error and, most important, that many prosecutions which should be brought are never brought. Part of the reason for that is the fragmented and disparate nature of the prosecution service. Section 4, in particular, overcomes that and seeks to give this country, for the first time, the sensible measure that exists in almost all countries of a unified prosecution service as opposed to the unsuccessful system we currently have.

One of the areas in which our prosecution system falls down most obviously and readily is in that of white collar crime. There are few prosecutions for white collar crime unless it is of a simple or straightforward nature. There are even fewer convictions for such matters. Our prosecution service seems to operate on the basis that the appropriate people to prosecute for crime are ill-educated and socially disadvantaged people who commit straightforward crimes of violence, larceny or something of that nature. It seems there is no acceptance that elaborate frauds by wealthy and senior people need any examination as far as prosecution is concerned. We have a curious legal and prosecution system which seems to suggest that only the disadvantaged and smaller person suffers while the big and powerful people can more or less do what they like. There has been recent examples of that in our beef industry.

Another example, related to the beef industry but which also relates to many other economic activities, is the lack of prosecution for tax offences. Tax evasion is regarded in most democracies as a serious crime. Thousands of people are serving lengthy sentences in the United States for tax offences. In this country, nobody is, or has ever been, imprisoned for tax evasion. Much of our society seems to regard these matters, which amount, if carried out on a large scale, to stealing from the public Exchequer, as being all right and that it has some imprimatur from on high. One of the reasons for this is that nobody has ever been prosecuted for it. If something is wrong, how can it go unprosecuted? Tax evasion does go unprosecuted and it seems this trend will continue.

I am aware of elaborate frauds in this State which have been investigated by the Garda but they either had insufficient evidence or if they had some, could not convince the Director of Public Prosecutions to take a prosecution. If anyone wants to see a fully documented crime of tax evasion set out in a judicial document, they should read the beef tribunal report, which outlines how a group of companies set out to deliberately defraud the Revenue and succeeded in doing so for many millions of pounds. What is amazing about that, and this further compounds the mess we are in, is that not alone was there no prosecution but that around the time it came to light, the then Government introduced a statutory tax amnesty where people who committed tax evasion could not alone avoid prosecution but also the payment of the vast bulk of the tax they owed.

If tax owed by those in that category on a personal basis is taken as being around 50 per cent, which is the normal figure, and add interest and penalties to that figure over a period of years, the tax payable would normally be 100 per cent of the amount of gain that accrued to the evading individual. However, instead of having to pay 100 per cent, or perhaps even more, as it would be in some cases, the most he, she or it ever had to pay was 15 per cent. It appears that some of those fully, publicly and judicially documented cases of tax fraud were able to avail of the statutory tax amnesty and this sends the wrong message.

The 1993 tax amnesty was the second such amnesty in a five year period although the amnesty in 1988 was declared to be the last this country would ever see. The second tax amnesty was unusual in that the Minister for Finance of the day and the Revenue Commissioners, both of whom have the statutory responsibility for the management of taxes and taxation in this country, were vehemently opposed to it. However, against their advice and wishes, it was still forced through this House.

I wonder who benefited most from it?

We know some people benefited from it——

I know I did not.

——although I do not know how many. Those who benefited, with the imprimatur of this House, if they lived in another jurisdiction would not alone get no statutory amnesty but would be in prison for a long period. However, we still allow this to continue. There is something remiss in our prosecution system, which is why section 4 in particular will make a major contribution in trying to overcome it. We are a sick society if we think we can allow that practice to continue or do without section 4 or a measure akin to it.

While section 4 may be one of the most important parts of the Bill, there are also many other significant areas. The current bail question can only be described as a scandal. There is almost nobody who is not on bail. People who are recently arrested for spectacular and much publicised murders — I am not prejudging their guilt — were let out on bail within weeks, and in some cases, days, of their arrest and charge. Is that right? The vast majority of people do not think so. I have been aware of the constitutional problem confronting us from as far back as 1971 when I was in the Department of Justice and I could not find a way of changing it without holding a referendum. I am glad 25 years on to be able to come into the House and read section 7 which would patently be constitutional, not conflict with the principle of the decision in the O'Callaghan case in 1966 and help to change the situation. I wish I had the ingenuity of those who thought up and drafted this section which I would not have turned down, rather I would have been glad to avail of it and enact it into law. How much of the crime that has occurred since then would have been avoided? How many murders, rapes and bank robberies have been committed by people while on bail? The question could more accurately be put the other way around: how many of them have not been committed by people while on bail? It appears the majority fall into the first category.

The condition that the person released on bail should be of good behaviour would be a powerful deterrent if a breach led to the estreatment of bail. The Minister should greatly welcome such a proposal. Whatever about the other sections to which she may have objections this is the solution to the bail problem that has afflicted us for 30 years. While it was not so bad in the first 15 to 20 years it is appalling at present.

In the past month or two I read in the newspapers about a case in Galway where a person convicted of serious crimes was granted bail, which the courts feel they cannot avoid because of the decision in the O'Callaghan case, within hours, if not minutes, of his conviction and was, by all accounts, involved in a further serious crime within a short time. What right does such a person have under the Constitution to bail? As a convicted criminal, he has no such right, but under this silly system with which we are encumbered and which this Bill seeks to change and loosen up even he must be granted bail. This allows him to commit further serious crimes.

The Part which deals with procedure is necessary. As someone who practised and dealt with criminal matters in the District Court for a number of years, I realise that much time is wasted and the unnecessary procedures do not do an accused or anybody else any good in the sense that they tie down large numbers of gardaí and others unnecessarily. This would be done away with under this Bill in a way which would not do any violence to anybody's rights.

The proposal of a formal interrogation before a judge should be accepted by the House. I also spoke about this matter when I was in the Department of Justice. The atmosphere at that time was totally different. Within hours I was howled down. The following morning the newspapers were full of shock horror reactions. I was asked how I could possibly contemplate making the slightest movement towards what is called the inquisitorial system which is the norm throughout most of the civilised world. Apart from ourselves, Britain and some but not all of the common law countries of which there are relatively few, every other country operates the system proposed in section 14. I do not see democracies throughout the world held up as being grossly unfair or acting without any regard for the rights of accused persons.

In France an examining magistrate supervises the questioning of an accused. If an accused fails to answer, this is admissible in evidence and may be taken into account at his subsequent trial. I do not see anything unfair in this. It cannot of itself lead to his conviction, it can only be corroborative, but it is powerfully important. I can see no valid reason for turning this proposal down.

A further section states that an accused should not be allowed to state in his defence at his trial that he has an alibi if he failed to mention this when questioned or had a reasonable opportunity to do so. That is perfectly fair. Nowadays there are people who do not open their mouths when questioned about a particular offence which it is alleged——

They are advised by their solicitors to do so.

Solicitors are entitled to advise their clients to avail of the law. They would be foolish and negligent if they failed to do so. If it is alleged that a person committed a crime at 3 p.m. on a Monday in Grafton Street in Dublin and he says nothing when questioned, he should not be allowed at his trial to produce a string of witnesses to swear that at the time mentioned he was with them in O'Connell Street in Limerick. He should not be allowed to concoct an alibi at that last minute.

Provision is made in section 11 of the Criminal Justice Act, 1984 for consecutive sentences where a person is convicted of further offences committed while on bail. I am told that this happened in the first two or three years after the Oireachtas enacted that Act. I cannot understand why it stopped. This was a useful and effective provision. Section 19 of this Bill would require the prosecution to bring it to the attention of the court. That is a valid proposal.

If I had more time I would speak at length about the prison service. The proposals in the Bill in that regard are essential and make eminent sense. It is regrettable that the prison system and service have degenerated to a degree about which none of us can be proud. I fail to understand how a young drug free person could be sentenced to prison for an offence that has nothing to do with drugs and become a drug addict while in prison because drugs are forced on him or her. This is happening in Mountjoy Prison in particular.

That is a scandal.

That person will come out of prison a drug addict and his or her life will have been destroyed. This type of activity is reprehensible. I thought one of the functions of imprisonment was to keep inmates away from opportunities that would give rise to crime or anti-social behaviour. It has been suggested, but not denied or confirmed authoritatively, that it suits the authorities in some prisons to allow prisoners to spend most of their time in a doped haze from drugs because they are less difficult and troublesome. Whatever the reason, it is an incontrovertible fact that large numbers of prisoners are getting drugs, including many who did not use them before being sent to prison. That must be the greatest of all the scandals attached to our prison service. What Dr. Whitaker recommended some years ago should be implemented now. As the section that deals with prisons incorporate the gist of his recommendations I would like it enforced.

The final part of the Bill deals with the rather sensitive question of pardons, remissions and temporary releases. I am pleased the Bill proposes that they should be put on a statutory basis and that a proper public register should be kept of those who avail of pardons, remissions or temporary releases, the abuse of which brought our criminal law into disrepute and led to widespread cynicism.

I was amazed to hear from the Minister for Justice in the past 12 months that it is not now the practice to consult the judge who imposed the sentence before it is varied or remitted by the Minister, which was the practice in the past. I recall when the number of remissions was much lower and a not insignificant proportion of them emanated from judges who wrote to the Minister stating that something had come to light since the case was heard which, if had been known at the time, would have resulted in them imposing a much lesser sentence or not convicting the person concerned and, since the time for appeal had expired, justice should be achieved if the person were released. Such power was given to the Minister for Justice under the 1951 Act and earlier legislation because it was foreseen that mistakes could be made, but that is not the position today. It is now par for the course for defendants to make petitions and get letters from Deputies to show to the gardaí when executing warrants.

I urge that the Bill be accepted because many of its provisions are necessary. If some parts need amendment, Deputy O'Donnell and other members of my party would be glad to facilitate that. The Bill should go to committee. If it does not, the majority of Members will be shown up as not being serious about the rise in crime which is the most serious problem facing us.

I wish to share time with Deputy McGahon.

I am sure that is satisfactory.

I am pleased to have an opportunity to contribute to the debate and compliment Deputies O'Donnell and McDowell on their work on this Bill. I know what it is like to prepare a Private Member's Bill and seek to have it debated. I endorse many, but not all, the Bill's provisions.

It is important to debate the issues raised in the Bill so that the Minister is aware of the views of all Members. I am sure the introduction of this Bill and the drug trafficking legislation we discussed earlier accomplished this. There is a clear division between those genuinely interested in the drugs problem and those using it to play political football. There are also other divisions in the House. For example, Members from large metropolitan areas tend to be more aware of the extent of the drugs problem than those from rural areas, although the problem does extend to towns and villages. A division between Members representing different constituencies is understandable. However, the other divisions are neither understandable nor acceptable. The division between those seeking to use and distort the crime and drugs issue for political gain transcends all party allegiances, but only one Deputy appears to do it on a continuing basis. He is now the subject of critical analysis by the electorate. It is unfortunate that Deputy O'Donoghue——

I thought Deputy Ferris was referring to a member of his party.

——is the chief spokesperson on justice matters for his party. Deputies Woods and Lawlor addressed the issue from an informed and concerned perspective, but Deputy O'Donoghue seems to have descended into vitriol. I fail to understand why he uses every opportunity available to him to take on the Tánaiste and his adviser, Mr. Finlay.

Who wrote the Deputy's speech?

He is well able to write his own speeches.

Mr. Finlay appears to have acquired public enemy No. 1 status among the Fianna Fáil Party. His very existence seems to drive them into torrents of fury. They foam at the mouth at the very mention of his name. A replica of Mr. Finlay is probably placed on the table at Fianna Fáil meetings.

I am concerned at the reference to a distinguished person outside the House——

I accept that and I am defending him.

——who has no recourse against accusations made against him here. While the Deputy may compliment him others may take a contrary point of view.

They have and that is why I am defending him.

Then let us not refer to him at all.

No doubt members of the former Taoiseach's clique are given extra long primed pins which they use to cut holes in this person.

Let us compromise and call him Svengali.

Unity is one of the fundamental tasks of any party leader, particularly the leader of the Fianna Fáil Party. Deputy O'Donoghue has laid out his wares and he wants a referendum on bail. Regardless of what we discuss, whether this Bill, drug trafficking legislation or other legislation on the criminal justice system, Deputy O'Donoghue pulls out his computer printout and hops on the bail bandwagon. Like some members of his party, he is new to this issue and thinks he has all the answers. As numerous speakers said, Deputy O'Donoghue's party held the Justice portfolio for seven years. I am sure the Minister dreams of what she could do if she was in office for seven years.

They seem to have forgotten about poor old Deputy Geoghegan-Quinn and Deputy Ray Burke who did nothing while in office.

What about the period 1982-87?

Where was Deputy Molloy during that time?

A Deputy

He was in Government.

He was a member of the Fianna Fáil Party for 25 years.

I have little difficulty dealing with the Bill as it highlights the other measures on bail which can be taken prior to holding a referendum. This is not to say that a referendum will not be held in the long term.

The Labour Party's new line is the long term.

On the contrary, this issue can only be dealt with by way of a referendum. However, the proposals must be limited so that there is no infringement of the rights of ordinary citizens. Deputy O'Donoghue presumes everybody is guilty, particularly if they are not members of his party.

All of us cannot be perfect.

Deputy O'Dea criticised the Minister of State, Deputy Burton, for saying that alleged drug traffickers also have rights. I am glad he is in the House as I was astonished at his criticism given his experience in the area of law.

He was a small Minister in Government.

The Minister said she will shortly announce her proposals on bail.

She seems happy with the position within Cabinet on this issue.

I doubt it.

This upsets Deputy O'Donoghue who does not have access to the Cabinet. However, when he had access to it he did nothing about this issue.

What did the Tánaiste and Minister for Foreign Affairs, Deputy Spring, say in The Kerryman? It was not an interview, he wrote the article.

We know what friends of the Deputy wrote about Bishop Comiskey and they had to eat their words.

Deputy McDowell can presume what he wants. The last person the Minister would like to go into battle on her behalf is Deputy O'Donoghue. The reality is that Deputy O'Donoghue cares little about any of these issues. The issue of bail is his path to political stardom.

He wants to take over Bertie's position.

Some provisions of the Bill are worthy of comment. I agree in principle with the establishment of a prison board, although the Minister has said there are difficulties in this area which will have to be ironed out. I am very taken with the proposal to unify the prosecution service, as we all remember the inefficiencies and difficulties in the Attorney General's office. By unifying the two offices we should be able to do away with some of the bureaucracy which currently delays trials coming to court. I see no reason the Director of Public Prosecutions should not publish an annual report and be answerable to the Oireachtas committee system. I would understand a reluctance to comment on individual cases but we should be satisfied that taxpayers' money is being correctly spent.

While it contains many positive proposals, there is too much in the Bill. This is a critical but complimentary analysis. The Bill is overstretched in terms of the proposal in Part IV to remove the accused's right to silence. I am not saying the House will not eventually support such a provision but before we commit ourselves to such a fundamental reform of the law it should be discussed at length by us in committee. A similar measure is already in operation in Britain and we as a Legislature have much to learn from that country.

I accept that they worked hard, but the framers of the Bill would have served us better if they had worked exclusively on one Part instead of stretching their efforts over too many issues in this complicated area which deals with people's rights and the right of the State to ensure people are prosecuted and given sentences appropriate to the crime. One cannot adopt a blanket approach to this issue and ignore people who are innocent until they are proved guilty. I have difficulties with the Bill and have no option but to oppose it.

I understand Deputy Paul McGrath is also sharing time with Deputies Ferris and McGahon.

Even though I am a Fine Gael backbencher, I am not entirely out of sympathy with the proposals in Deputy O'Donnell's worthwhile Bill. The Minister said the Bill is like the curate's egg, good in spots. I ask her to incorporate these good points in the Government legislation which will shortly be brought before the House. Earlier today during the debate on the Criminal Justice (Drug Trafficking) Bill I said since I am cynical of all political parties. I would like to see an end to confrontational politics on a delicate subject such as crime which should be above politics and would like committees to be given more teeth so as to evolve a united approach to this issue. Unlike Deputy Ferris, I do not dismiss Deputy O'Donoghue's efforts although I would label them political opportunism, something all of us in this palace of varieties which passes for entertainment or pantomime must engage in.

My views on law and order are fairly well known.

I never heard them.

The Deputy has been associated with me — I have been described as being to his right.

Deputy McDowell does not watch ordinary television and he certainly does not buy the Sunday World.

While my views are regarded as extreme——

Hang them and flog them.

——and often dismissed by the more intellectual and academic Members, I am as close as any Deputy to the feelings of the ordinary person on the street. People are not concerned about economic issues but about the level of crime, which we all have helped to create. As a cynic I express my cynicism about a party which was in Government for seven years and eight months and which now engages in a mock battle and expresses mock outrage in an attempt to make the Minister, Deputy Owen, responsible for the level of crime. This problem has been growing for many years and was prevalent when the biggest mobster in Europe was gunned down on the streets of Dublin. Yet the Fianna Fáil Party which was in Government at that time did nothing about the problem. Everything is relative. When Deputy O'Malley was Minister for Justice the level of crime was burgeoning and he did not bring in the draconian measures most people accept we need today. I do not believe in the right to silence in cases of serious crime. People should have a duty to account for their movements if there is any possible link with a crime, because it is the right to silence that sticks in the craw of most citizens. There should be no bail either in connection with serious crime until the person charged is cleared, particularly in the case of murder or rape.

Deputy O'Malley adverted to the huge amount of drugs available in Mountjoy Prison. He instanced the case of a young boy who never took a drug in his life but came out of Mountjoy an addict. That is an indictment of all parties who have been in Government in recent years. The only way to deal with that problem is to deny prisoners the right to visitors, if what Deputies say about Mountjoy is true. That would be an additional penance on the prisoners which, it is hoped, would make them afraid to go back into that prison. It would, perhaps, add to their burden, but there should be no admittance of family or friends of people in Mountjoy Prison while the question of drugs remains over that establishment.

I am apprehensive about the Minister's statement that she would abolish penal servitude. If there were to be a referendum, I believe the views of the people of Ireland would make me look like an altar boy instead of an extremist. I include Deputy McDowell who has been compared to me as an extremist.

In Alabama in America they have had to return to the chain gang system, and 17 years ago in Florida I saw a chain gang working on the street. We turn to America for advice when it suits us. We invited the President of America here to try to unite the country, so we should not just dismiss what they have had to do. We should learn from their system. In 1976 they abolished the death penalty, but every State in America has had to bring it back. Over 30 to 40 years we in this assembly have removed deterrents because of the bleeding hearts and the do-gooders in society. If a society has no deterrents it will disintegrate. We are witnessing the disintegration of Irish society and it is incumbent on us to erect deterrents that we removed over the years.

I thank my colleagues for sharing their time with me and thank Deputy O'Donnell for introducing this Bill. I am fully aware of the lack of backup and research facilities available to Opposition spokespersons and the great difficulty they have in operating properly in this House. It is important that Opposition spokespersons should have the resources and the backup they need to do an adequate job in preparing a Bill like this. Many other Bills have been introduced by Opposition spokespersons and we should compliment them on putting in so much effort. In the short time I was an Opposition spokesman I found it extremely difficult to cope with the amount of work that had to be done. I had to rely on the good will of various experts in their fields for help and give backup that should have been provided by the Government.

It is important that some of the issues mentioned in the Bill be discussed. All Members have a contribution to make on them. I agree with some of Deputy McGahon's comments. The question of bail is very topical and needs to be addressed and I am delighted the Minister has given a commitment to address it and bring forward her own proposals.

It is ironic that so many Members of the Opposition pour their wrath on the Minister, Deputy Owen, as if, in 15 months in office, she should have been able to resolve everything. It is crazy to think that parties who were in Government for seven or eight years did not introduce any of the laws they are now advocating. Let us not fool ourselves that the public are deceived, because they are not. They realise what the position is, and we should give them more credit for their intelligence than we do.

In her short-term in office the Minister has addressed many issues and she has clocked up worthwhile credits as Minister. I have no doubt that by the time another 12 months have passed Deputy Owen will be remembered as a Minister for Justice who made a worthwhile contribution.

As public representatives we have a responsibility to help people realise the problems of society and take the necessary action to solve them. Crime is a huge problem at present. Some Deputies have behaved irresponsibly by publishing articles and issuing statements concerning crime, some of which have been downright deceptive in their use of statistics. One such article was published recently in a local paper by a colleague, Deputy O'Rourke, criticising the reduction in Garda numbers in her area at a time when crime is increasing. She quoted the figures relating to 1993-95, which were particularly apt in that they show that the Garda numbers in that area were declining. The article got banner headlines and many people were frightened by the implications of its content. Let us look at the real facts. I could, perhaps, also be blamed for using figures to suit myself, but it is reasonable to look at the figures over, say, ten years. Garda strength in the Longford-Westmeath division in 1985 was 251 gardaí, including sergeants and inspectors. In 1987 the number had risen to 257. It was at that stage that Fianna Fáil came into power. By 1991 the number had been reduced by 41 from 257 to 216, a substantial reduction. To be fair some of those can be explained. A Minister for Justice had been resident in the area at the time and when he was no longer a Minister for Justice part of the security was removed. That would have accounted for a reduction of ten gardaí at most, not 41. There were 216 in 1991 and the number was reduced to 191 in 1993. From the time Fianna Fáil came to power in 1977 until it left office the number was reduced by 65. The former Minister, a senior Minister for most of the time and subsequently a junior one, criticised this Government for reducing Garda numbers by 60. That is hypocrisy of the highest order. She said crime rates are rising and something must be done about it.

Her seat must be in danger.

She will run for President.

When she was Minister crime in Longford-Westemath rose by 25 per cent from 1989 to 1990.

Was that her fault?

No, but the Deputy suggests that the rise in crime is the fault of this Minister.


The tone of the article was that this Government was not doing anything about it. It was the fourth highest increase in the country. At the same time Garda numbers were reduced in that area. It is hypocritical to say this Government is any better or any worse than any other Government as far as Garda numbers are concerned.

If the Deputy was up to date with what is happening in Athlone she would be aware that the crime figures for January-February this year show a reduction of one third compared to those for January-February 1995 and there is a 75 per cent detection rate for January-February 1996.

What is the reason for that? The snow, I imagine.

The reason is criminals are in jail.

Not for long.

We need the figures over a ten year period, one or two months does not help.

In 1987 there were 1,800 indictable offences in Longford-Westmeath and in 1994 it was 1,900. There were fluctuations in the period.

The Deputy also referred to Garda numbers in the Athlone area and castigated the Minister for allowing them to drop from 71 to 65. In 1987 there were 76 gardaí in the same area and 69 in 1991. It did not suit her to say anything about that.

The Garda have a difficult job to do. My father and brother were gardaí when gardaí were on duty 24 hours a day. They lived in their own community. The biggest change in policing in rural Ireland is that gardaí do not live among the community in which they work. They have lost touch and do not get the information they need. Local communities are unhappy with the Garda presence in their area and want them to live in the areas where they work. I do not know how that will be achieved as we cannot force people to live in particular areas but we need community policing.

I welcome the Bill and compliment Deputy O'Donnell on the ingenuity she displayed and the hard work she put into the Bill. I am not as cynical as Deputy McGahon but I am saddened, although not surprised, by the Government's response. It is proof positive that the Government has abandoned the idea of bringing in the necessary legislative and administrative changes to combat crime.

Deputy McGrath detailed the crime figures for Longford-Westmeath but we are all aware of the crime figures nationally. The Garda report for 1994 tells a frightening story. Never before was there an all pervasive feeling that the system has broken down. There was never a time when the people felt so fearful and helpless or when those who work in the system felt so disillusioned and abandoned. This Bill will not transform the position magically. Deputy O'Donnell and I will not fall out if I say the Bill will not shake the foundations of the State or be a magical elixir that will transform matters overnight, but it will bring about significant improvements if the Government decides to accept it and it is amended in committee.

There is a glaringly obvious need for procedural and legal change to make the system coherent and workable and to restore some degree of confidence to the public and those at the coalface. There are some changes in the Bill but the Minister has set her face firmly against them. I do not have anything personal against the Minister but she seems — perhaps through no fault of her own in that she may be hidebound by the ambiguous attitude to crime of some of her colleagues — to have raised prevarication and indecision to an art form and has signalled that the Government is rock solid in its determination to pursue a policy of indecision and incoherence in this area.

I welcome the proposals on bail. How much longer will the people endure the vaudeville which has passed for Government policy on bail? Before the Law Reform Commission reported last March the Minister announced there would be a referendum on bail. We supported that, but some of her colleagues did not. There is no great secret about who did not support the Minister for Justice. The Minister for Social Welfare, Proinsias De Rossa, made his opposition well known and the Tánaiste, Deputy Spring, was exceptionally dismissive. He was not dismissive to the Minister to her face but, as usual, he spoke out of the side of his mouth. The great ventriloquist dispatched his puppet to the media to say that the Minister for Justice was "the weak link in this Government". I am sorry the Minister is not here to hear me quote that. The Tánaiste dispatched his Svengali, Mr. Finlay, who is a first class honours graduate of the Joseph Goebbels school of news management, to describe a ministerial colleague who is doing her best as the "weak link in this Government". That is his attitude to improvements in the bail laws.

After that blast the Minister was forced to shelter behind the Law Reform Commission, which earlier she had been happy to ignore when she unilaterally announced a referendum last March. However, nothing lasts forever and eventually, after considering the matter for a long period, the Law Reform Commission reported. I am disappointed with its report which did not come to any conclusions or make recommendations. I believe the reason it did not do so was that it took an exceptionally narrow interpretation of the brief it had been given. Be that as it may, the Law Reform Commission reported and eventually the ball was back in the Minister's court.

The Minister and the Taoiseach, who were unable to justify further inaction, resorted to insults. The Taoiseach resorted to insults on the Order of Business on a number of occasions. He said that Fianna Fáil had referred the matter to the Law Reform Commission as a "delaying tactic". If the Taoiseach regards the Law Reform Commission merely as a device where awkward problems can be referred as a delaying tactic, he should say so clearly and unambiguously. However, that is the import of what he said on the Order of Business in relation to the decision of the previous Government to refer this fairly intractable problem to the Law Reform Commission.

The Taoiseach and the Minister repeatedly told us they were debarred from taking action until the Law Reform Commission reported. When it did so, they said the matter had simply been referred to the commission in the first instance as a "delaying tactic". We have heard about having things two ways, but the Government is seeking to have things three ways.

The proposals in this Bill represent a reasonable compromise which, incidentally, would enable the Government to escape from its self-inflicted paralysis in this area. It is a wise and welcome suggestion to make an independent bailsman responsible for the conduct of the accused while on bail. It has been the experience — although not invariably the case — that the person who puts up bail, the independent bailsman, is somebody closely connected with the accused. If that person does not trust the accused, whom he or she knows better than the authorities or the Judiciary, to behave while on bail, why should we expect society to trust them as happens at present?

The only response from the Minister to that suggestion was that "it is by no means clear that there would not be constitutional problems"— a double negative. Can the Minister say where she got that advice? Will she publish it because my advice is to the contrary? I have been told that this proposal is patently constitutional.

The Minister made the argument in the House on a number of occasions about preventive detention. Of course, the weight of the arguments about preventive detention would be substantially lessened if there was a fast track system where people got to trial earlier. There are sensible and logical proposals in the Bill for such a system and again, the Government seems to have set its face against them.

I also agree with the proposals relating to preliminary examinations and the absolute right to insist on depositions. The absolute right of an accused person to have depositions taken is inappropriate in the circumstances which prevail in criminal law administration today. The procedure set out in the 1967 Act for the protection of the accused is now being abused by clever, resourceful and mostly habitual criminals to frustrate the process by delaying their trial for an inordinate period of time. Who benefits from the Minister's refusal to accept this proposal? Habitual and resourceful criminals who constantly and skilfully play the system benefit, society, law abiding citizens and victims do not.

The abuse of the depositions system is a fairly powerful weapon which resourceful criminals have developed to frustrate and delay the system. What mandate does the Minister have to enable them to continue to abuse the system in this way? Generally, the innocent do not abuse the system in this way. It is predictable who will resort to these tactics. Clever, resourceful and skilled criminals have reduced the preliminary examination system and the taking of depositions to a parody.

As far as I could ascertain from the Minister's speech, her only answer to the arguments that were well made on this side of the House in favour of these proposals was to say that Deputy O'Donoghue proposed a more radical proposal some weeks ago — a type of hybrid proposal — and that she would welcome the views of Deputies as to which proposal is best. In the meantime nothing will happen. The merry-go-round continues and a powerful weapon developed, by and large, by the guilty to delay and frustrate justice remains intact while the Minister waits to hear the views of Deputies as to which system is best.

The Bill contains rational and logical proposals in relation to the right to silence. This right was evolved for the protection of the accused in different times from those in which we, unfortunately, now live. At the time the right to silence was developed, the balance was titled in a different way. In those days the accused were generally people of little or no education who could hardly read or write. Even the most minor offences carried severe penalties. Offences like pickpocketing attracted the death penalty. It was in that atmosphere and against such a background that the right to silence evolved. However, the situation has changed.

The absolute right to silence is arguably the most powerful weapon available to a resourceful criminal to beat the system. It is invariably a device used by those who have something to hide, although not in all cases. Why should an innocent person refuse to give an account of his or her movements? What incentive has an innocent person to stay silent? An innocent person would be anxious to explain why they could not have committed the crime of which they are accused. I would like to hear the Minister's comments on why an accused person, without prejudice, is able to rely on an explanation at his trial which he is not prepared to give when arrested or charged. What is the logic behind that in the circumstances which pertain today? In practice if a person remains silent, as they are entitled to do, it will not be held against them and will not prejudice them in any way. The right to silence is used by people who need time to construct an alibi. If they were compelled to give an account immediately, it could be cross-checked and they would not have time to prepare an alibi.

Recently in Limerick two people, who were both convicted on many occasions, were arrested for savagely beating an 80-year-old woman in her own home. One of the individuals whistled throughout a 48-hour interrogation. That shows the contempt these people have for the system, and they have even greater contempt for the victims. The other individual resorted to the tactic of shouting his head off in the cell downstairs because he believed, correctly, that it would frighten the elderly victim, who was upstairs, and discourage her from giving evidence.

There are some cases where genuinely innocent people may wish to remain silent. Under the Bill the fact that a person remains silent will not be sufficient to convict them, but it will be taken into account. Judges are well equipped to give proper weight to a refusal to give an account and are empowered to draw inferences from it. That is not very difficult in the circumstances of a trial. The absolute right to silence has outlived its "sell by" date and must be changed in the interests of society. It is a very powerful weapon for resourceful criminals who may decide to stay silent and let the State prove its case.

Last year, according to Garda figures, the number of indictable crimes amounted to more than 100,000, or 300 per day. That refers only to reported crime; the true figure is probably closer to 400 per day. The detection rate of indictable crimes was about one in three but the true figure is probably one in four. How many of those people walked away because of the right to silence? The chance of a person getting away with crime is great. The tiny percentage of people who are convicted avail of the revolving door system and walk out of prison having served only a fraction of their sentence. Is it any wonder confidence in the criminal justice system is at an all time low and there is a pervasive feeling that the system has irreparably broken down?

The proposals dealing with the prison system are welcome. There is no indication in the Book of Estimates that the Government intends to take measures to close the revolving door. In its 15 months in office £1 billion has been added to the national debt, but only £3.5 million was provided for prison accommodation. That is how serious the Government is about closing the revolving door. It will be left to the next Government to deal with that problem.

It should be borne in mind that even if the revolving door is closed there will be no guarantee that the prison system will give value for money because there is also what I call the legal exit door. Even if every person sentenced by the courts served the totality of their sentence, the day would come when they would get out. What is the attitude of those coming out of prison? Deputy O'Malley gave the example of a person who went into prison drug free and come out a drug addict. That is a regular occurrence in Mountjoy prison. The value of the prison system must be assessed on the number of criminals who avoid a life of crime when they come out of prison. Recidivism is rampant and prisons are universities of crime. People come out of prison much better qualified in crime than they go in. The reason is that the prison system is a gigantic human warehouse, with no segregation of prisoners.

Apart from appointing prison visiting committees — usually supporters of certain political parties — and paying them expenses, does the Minister ever read their reports? I refer her to the 1994 report of the Mountjoy Prison Visiting Committee which indicated that when prisoners are housed together, rather than the better people influencing the worst, the opposite is the case. The answer to that problem is segregation. Senior members of prison staff can identify those who possibly can be reformed or rehabilitated and those who have no interest in being rehabilitated. Why should both categories be accommodated together? That matter should be borne in mind by the Government, probably the next one, when taking action to close the revolving door.

The system could be changed by having two basic types of prison institution, one geared towards rehabilitation and reform and the other geared towards punitive measures and detention. There could be incentives within the system — for example, by engaging in a certain conduct people could be eligible for transfer from the punitive type institution to the institution for rehabilitation and reform.

There are other problems with the system — for example, at present there is the ludicrous practice where a sentenced person need not serve the full sentence because of the automatic right to remission. The right to remission should not be automatic but should be earned.

None of these problems will be solved until the revolving door system is changed. We must get value for the £44,000 plus per prisoner per year which the taxpayer must pay, and the priority is to close the revolving door. That system is a national scandal and has reduced the penal system to a joke — from the point of view of victims it is not a very funny joke. The Government has given no indication that it intends to change the system. It has not the will to do so because it is locked in ideological conflict, wedded to a policy of paralysis dictated by people whom the opinion polls indicate have the support of about 1 per cent of the electorate. It will be up to the next Government to close the revolving door, and when measures are being taken to do so the other problems to which I referred must be borne in mind.

I heartily agree with the proposals to unify the prosecution system. The Director of Public Prosecutions, the person at the apex of the criminal prosecution system, when referring to the lack of a single command structure in the prosecution system said that the division between decision making and implementation means that two offices and several lawyers have to consider complex files, resulting in an absurd duplication of work and delays which otherwise could be avoided. He pointed out the importance of concentrating in one agency the various tasks involved in the preparation of cases for trial — the decision to prosecute, the preparation of the book of evidence, attendance at the preliminary examination and preparation in due course of the instructions for prosecuting counsel. He said he was convinced that a fully efficient and cohesive prosecution service will not be achieved until such a unified prosecution agency is in place. He also said that the present highly satisfactory co-operation between the Garda Síochána and his office would then be extended throughout the prosecution of offences to the very considerable benefit of the entire criminal justice system and that in these days of public spending control it is not without importance to add that the overall financial saving would be very significant indeed.

It is most unusual for such a senior civil servant, the most important figure in the criminal prosecution service, to go public and issue a cry for help to the Government. He pointed out in the public media that there are insurmountable barriers to providing a more efficient prosecution service, but that it could be brought about, not at a net cost, but at a net loss to the Exchequer. What is the Government's response? Silence. Everybody is aware there are difficulties in the criminal prosecution system. Many believe the system has broken down completely. The Director of Public Prosecutions, the person with most experience who heads up the criminal prosecution system, points to the difficulties in the public domain, but the Government's reaction to him could be compared to that of what our friend in Australia, Paul Keating, would call "stunned mullets". Its members stare at the DPP in silence. That will have to change. The system badly needs to be improved.

A section in the Bill obliges the Minister for Justice to introduce regulations for a unified prosecution system. That is probably the best that could have been done to deal with this complex matter by way of a Private Members' Bill. The Minister said she will not take this on board. She has no interest in what the Director of Public Prosecutions has to say. She knows better. There is no need for a unified prosecution system and the present system of duplication in which there is a lack of confidence should continue with all its expenses, inefficiencies and failures. The necessary proposals are in the Bill but the Minister has chosen to reject them.

I am extremely disappointed by the Government's response to this Bill. I read the Minister's speech. She said that to accept this Bill would "needlessly delay and disrupt the comprehensive programme of criminal law reform". To what comprehensive programme is she referring? We have one Bill. There is also the incest Bill dealing with a specific problem, the finished product having been drafted by my colleague, Deputy O'Donoghue. Apart from that, this is the only Bill dealing with criminal law. What is this nonsense about the comprehensive programme of criminal law reform?

In regard to the cri de coeur from the Director of Public Prosecutions, we were told that the work of the Chief State Solicitor's office is being examined as part of an examination of the Director of Public Prosecution's office. The Department of Finance has commenced a review of the structure and organisation of the Director of Public Prosecution's office. We have been told above reviews and examinations. We were told that the Minister is considering the issue of preliminary examinations. On the question of the right to silence, we were told that at some indeterminate time in the future this may be subjected to a full analysis and debate. Regarding early release, we were told that the question of the accommodation of prisoners is being kept under constant review. We were told the establishment of a prisons board is under consideration, but nil desperandum because we were told later it is under very careful consideration. The appointment of an inspector of prisons is due for consideration — at this stage the Minister was running out of adverbs — in the context of discussions which are ongoing.

Sentencing generally cannot be touched until the Law Reform Commission reports. That is the same body to which the Taoiseach referred as a stalling device to enable the last Government avoid hard decisions. I said earlier that the Government was having it three ways, but it is having it four or maybe five ways. The preliminary report of the Law Reform Commission on sentencing is two and a half years old and all but a few minor outstanding matters are dealt with therein.

The Government's response to this Bill is a travesty. Tonight will be a sad one for law abiding citizens but it will be a good one for criminals, who will continue to be cosseted and will contrive to prey on decent people with ever increasing fearlessness and audacity.

(Laoighis-Offaly): I join other Members in complimenting Deputy O'Donnell for introducing this Bill. I have listened to the debate during the past two weeks but the terms of the Bill have not been addressed in the detail the Bill deserves. The debate descended on a number of occasions to levels of political venom and personal vindictiveness that I have not often seen in my short time here. There are good proposals in the Bill but the Minister for Justice has explained that the Government is not in a position to accept it.

I wish to refer to accusations made by Deputy O'Donnell last night on the Criminal Justice (Drug Trafficking) Bill. It is my understanding that it has been standard practice for Ministers of Justice not to get involved directly in day to day Garda operational decisions. Those matters are properly the responsibility of the Garda authorities, not politicians. However, the Minister for Justice took the unusual and correct decision to give a confidential briefing to Deputies O'Donnell and O'Donoghue. That offer was made in good faith. Deputy O'Donoghue respected the confidentiality of the briefing while Deputy O'Donnell chose to persist with a line of questioning and innuendo on a matter which not only puts at issue the capacity of the Garda to participate in a major international operation but also seeks to imply that members of the Government were improperly involved in the planning of this operation and are now improperly attempting to cover it up. The Garda should be complimented for their attack on the drugs menace. My understanding is that no member of the Government knew of the details of that operation prior to its taking place. The accusations made here last evening are unwarranted and without foundation.

Part VII of the Bill contains provisions dealing with pardons, remissions and temporary releases. It begins by seeking to define the effect of a free pardon. The proposals are the same as those contained in a previous Private Members' Criminal Justice Bill introduced by Deputies O'Donnell and McDowell in 1994. The issue then and now is whether the effect of a pardon should be statutorily defined. The question has been considered in the Department of Justice on a number of occasions and the position remains that, on the basis of all the advice available to her, the Minister for Justice is satisfied that there is no need to define by statute the legal effect of a pardon. Apart from constitutional or other considerations, a definition would be unnecessary since, under existing procedures, pardons can be worded in such a way as to achieve for practical purposes the same effect as a definition, including the definition proposed in section 31.

The remainder of Part VII deals with the publication of details relating to remissions, commutations and temporary releases and to the maintaining of a register of those granted temporary release which would be open to public inspection. It can be argued that it is a fundamental principle in the management of offenders that they serve the sentence handed down by the court and so repay their debt to society. One of our main objectives in managing offenders, no matter how ideal it might seem at times, must be to give them the opportunity to lead a constructive lifestyle in the community on their release. If we have any hope of doing that, we must provide the services and facilities to encourage them rather than stigmatise them for life. The publication of a register of those granted temporary release, which would be open to public scrutiny, could not fail to have such a stigmatising effect. Apart from any moral considerations, the practical effect of such a measure could be calamitous.

A significant number of temporary releases are given under the supervision of the probation and welfare service as part of programmes of rehabilitation and resocialisation for the offenders involved. This process is a mainstay of the policy in regard to planned releases from custody and the management of sentences in a positive fashion. The development of this policy, which should be promoted and encouraged, would be undermined if this proposal were implemented. We could hardly expect offenders to commit themselves to such a rehabilitative supervision — which, incidentally, should not be regarded as a soft option — if their co-operation with the process is to be publicly announced and acccompanied by details of their offences and sentences. We must continue to pursue a philosophy of treatment of offenders which does not seek to minimise the gravity of their offences but which emphasises justice and fair play. We are bound to such concepts by international commitment. To that end we must strive to give all offenders an opportunity to leave the past behind and begin a new life. Undoubtedly, the effect of the indiscriminate use of such public "branding" of offenders — who might have been sentenced for the first time or for minor offences — would be extremely detrimental.

Most countries operate extensive systems of some form of parole but I am not aware of any that publishes lists of those who avail of it. In this jurisdiction temporary releases have been granted — for a variety of compassionate reasons such as attendance at funerals of family members and for short periods as part of their rehabilitation process — by successive Ministers for Justice since 1960 after appropriate periods of sentence have been served. Temporary release may be granted for different periods, as appropriate, ranging from a few hours to a weekly, renewable temporary release, all subject to the condition that, if the terms of release are not complied with the offender can be returned to custody without the need for fresh legal proceedings.

The practical arrangements necessary to compile and maintain such a statutory register would represent an immense bureaucratic task. Even if there were no other objections, it would not be advisable to commit scarce staff and financial resources to such a exercise. Ultimately we must ask what practical benefit would be served by the maintenance of such a register. If the aim is to reduce crime, I very much doubt if such a register would have any positive impact. In fact, the opposite might very well be the case for the reasons I have outlined.

None of what I say implies that the systems for managing the temporary release regime could not be improved. For example, it could be argued that information regarding people on temporary release should be held centrally, in such a manner as to allow easy access by the Garda or the courts, particularly when dealing with suspects who may be on temporary release. A statutory public register, as suggested in the Bill, is not an appropriate way of achieving that objective.

Nothing in what I have said on this section diminishes my acceptance that a proper level of custodial accommodation must be provided. I welcome the Government's recent announcement of its intention to provide a substantial number of additional prison places.

Similar considerations to those to which I have referred could be seen to arise in relation to section 32 which would require the publication of personal details relating to remissions and commutations. As Deputies Michael McDowell and O'Donnell will be aware, since this proposal was first mooted in their Private Members' Bill in 1994, the petitions procedure has had to be reexamined in the light of the High Court judgment in the case of Patrick J. Brennan v. the Minister for Justice, Ireland and the Attorney General. I understand the Minister is considering the implications of this judgment for the operation of the petitions procedure and will consult the Attorney General on the matter.

In any event, the reservations expressed on the publication of details of temporary releases might arise also in the case of commutations and remissions. It has not been the practice to publish details of individual cases involving the commutation or remission of fines and sentences of imprisonment under section 23 of the Criminal Justice Act, 1951 or the delegated authority of Government dated 30 March 1951. Individuals who lodge petitions are entitled to a certain degree of privacy concerning their personal affairs. It is difficult to be certain that any good would accrue from the publication of the names and addresses of those who, for personal reasons — very often inability to pay — resort to the petitions process. Of course, such objection would not preclude the publication of statistics on the exercise of powers of remission, commutation and temporary release, as is suggested in section 34.

I hope I have highighted some of the complex issues to which Part VII gives rise. I commend Deputy O'Donnell on her work in its preparation but I do not believe acceptance of its Second Reading would be an appropriate or effective way to proceed.

I thank all Members who contributed to this debate. There was a remarkable degree of consensus on the range of measures needed. Unfortunately there appears to be a degree of incoherence on the Government side of the House on the matter of law and order, an ideological divide among the governing parties on fundamental questions of law and order. That is a great shame, because it is not a matter which lends itself to the degree of indecision we have witnessed on the part of this Government since it assumed office.

We have witnessed such indecision on how bail and its reform should be tackled. It is widely acknowledged that there is continuous abuse of bail. Yet there is paralysis on this issue. Any Member of this House could deliver a thirty-minute speech without notes on the matter of bail. There has been a revolving, frustrating debate on bail and the need for reform since I became a Member of this House and, no doubt, before that.

The Justice ministry does not prosper on indecision, or on the back-sliding we have witnessed since the Minister assumed office. This back-sliding, indecision, incoherence and paralysis of analysis, along with further slagging matches between the Coalition parties on this issue will mean that we shall certainly not see our bail laws reformed. The only transparent feature of this Government is its divergence of opinion on the matter of bail, which is a great pity given that this is one area capable of reform. If a consensus cannot be reached by members of this Government to put the bail issue to the electorate let the Government bring forward alternative proposals. The Opposition is worn out advancing proposals. This Bill contains proposals which fall short of a constitutional change. Likewise, the Fianna Fáil Party have put forward proposals to reform the bail laws short of constitutional change. The Tánaiste and Minister for Foreign Affairs, Deputy Spring, has also put forward legislative proposals short of constitutional reform. Let us have something, because the electorate is becoming tired of this revolving debate on the issue of bail.

One of the most important tests of any criminal justice system is whether it inspires public confidence and is seen to be fair. Most people want a fair system of justice that punishes the guilty and protects the innocent, a system open to review, capable of responding to change. Our system fails across a whole range of tests. The objective of my Bill is to remedy a range of different issues of law acknowledged to be in need of reform.

This Bill has been criticised by some Members for endeavouring to achieve too much. That may be a valid criticism but, on the other hand, so much needs to be done and there is so little forthcoming from this Government to reform our criminal justice system, I and my party were forced to avail of the only opportunity within a Dáil session to propose realistic, practical measures. Therefore, I cannot understand why it should be criticised for aiming to close all the well known loopholes. Of course, it could also be amended. That is unworthy of a Fine Gael Minister for Justice. The Fine Gael Party has a mandate on law and order and, as far as I am aware, many of the issues such as the right to silence, reform of the bail laws and the accountability of the Office of the Director of Public Prosecutions are Fine Gael policy.

Is the practice of initiating Private Members' Bills a complete charade? After all this intellectual energy, two weeks of debate following months of preparation all the Government can say is that it is considering sending it to another review committee — endless procrastination, mañana with nothing taken on board.

In fact, the Minister dismissed the Bill as not containing anything novel. It would be more accurate to say that the problems it seeks to address are not novel. I will list the measures we have tried to change and the proposals we have put forward in the Bill: practical measures to speed up and streamline State prosecutions; new provisions, short of a constitutional referendum, to prevent the abuse of bail; the forfeiture of bails money where the accused commits an offence whilst on bail — a most reasonable suggestion and new provisions to ensure that bail offenders serve consecutive sentences. At present that does not happen and the Law Reform Commission in its report states that judges are not giving consecutive sentences. Our Bill proposes that the DPP will have an obligation to point out to the court when a consecutive sentence would be applicable. Another measure in the Bill is accountability of the DPP to Dáil Éireann in respect of prosecution policy generally. There is no accountability for the Office of the Director of Public Prosecutions. I have spent three years tabling dozens of questions to the Taoiseach to extract the most simple statistical information on what goes on in that office. Only when a Government fell and there was a huge disaster in the Office of the Attorney General when a paedophile priest was not extradited because of deficiencies in the office did we get reform of the Office of the Attorney General. I welcome that but do we have to wait for another disaster before we have a reviewable system in the Office of the Director of Public Prosecutions?

In our Bill we outline measures to curtail the absolute right to silence which is being abused by sophisticated criminals and is a well known obstacle to bringing criminals to justice. We do not seek to abolish the absolute right to silence but to curtail it and put some checks on it. These are very careful measures and we have been anxious to maintain a fair balance to protect the presumption of innocence.

We propose to transfer responsibility for the prison system from the Department of Justice to a new statutory prison service, a recommendation of the Whitaker report in 1985. The Dáil is inundated with reports that are not being implemented — recommendations are made but then nothing happens. That is the most frustrating aspect of an analysis of the criminal justice system — endless paralysis of analysis and nothing at the end of it.

This Bill represents a significant opportunity for change in the law upon which we rely in the fight against crime. This is not an academic exercise. The justice system is falling down on a daily basis because of loopholes in it. This is a serious well intentioned thought out proposal to alter some of those deficiencies and yet it is dismissed as unworkable. That is quite depressing. Members expressed goodwill and asked why the Minister could not extract the good provisions and amend what she does not like.

The Director of Public Prosecutions has gone on record as saying he needs help, there are absurd duplications and delays in the present prosecution service. When the DPP made this statement I immediately raised it with the Taoiseach who has responsibility in this House for the operation of the Office of the Director of Public Prosecutions, the most important arm of the criminal justice system. The question was transferred to the Minister for Justice even though the Taoiseach has responsibility for the Office of the DPP. When the Minister for Justice answered the question eventually she said that she had not discussed this matter with the Director of Public Prosecutions, that she had met him socially but that it would be inappropriate because of the independence of the Office of the Director of Public Prosecutions for her to discuss this matter with him. That is the sort of nonsense that has us in the situation in which we find ourselves in terms of the failure of the criminal justice system to get results.

It is essential that the resources which are available for the Office of the Director of Public Prosecutions are top class and that he has at his disposal every possible facility and expertise and yet we have no way of knowing what he needs and the deficiencies of his office. He has requested that there should be a unified prosecution service. If one wishes to contact the Crown Prosecution Service in Britain, one can use the freefone and avail of the information pack and speak to the victim liaison officer. In this State the victim is sidelined, reduced to the status of a witness and is not consulted at any point in the trial. That is not acceptable.

Many people have contacted me in regard to child abuse cases in particular. There has been an explosion in the number of such cases with 4,000 child abuse cases being reported to the health boards every year. Files are going to the Director of Public Prosecutions that have been investigated by the gardaí and validated by the health board but I have reason to believe that not enough cases are being prosecuted. Inexplicable decisions are being made not to prosecute in child abuse cases. The reasons are never given but in all cases the consequences for the victim are disastrous. When a prosecution is not brought for reasons that are not given to the victim or anybody else, it means that he or she is not believed. That is why, particularly in child abuse cases, it is very important that we have a prosecution policy which is up to date, sympathetic to the victim and which everyone understands. We do not have that and, therefore, we need a total review of prosecution policy, from the reporting of the crime to the validation and the prosecution of it, to the sentencing and the treatment of the offender thereafter. This area has not been given the benefit of intellectual debate in this House or in the Office of the Director of Public Prosecutions. If we do not put it in order it will lead to terrible heartbreak and misery for many people.

I thank the Deputies who supported the Bill. I regret that the Government which states that it puts the victims of crime, the rights of the citizen, and crime and law and order at the top of its agenda is voting down the most reasonable proposals for change.

Question put.
The Dáil divided: Tá 58; Níl, 73.

  • Ahern, Michael.
  • Brennan, Matt.
  • Brennan, Séamus.
  • Briscoe, Ben.
  • Browne, John (Wexford).
  • Burke, Raphael P.
  • Byrne, Hugh.
  • Callely, Ivor.
  • Clohessy, Peadar.
  • Connolly, Ger.
  • Coughlan, Mary.
  • Cullen, Martin.
  • Davern, Noel.
  • de Valera, Síle.
  • Doherty, Seán.
  • Ellis, John.
  • Fitzgerald, Liam.
  • Flood, Chris.
  • Foley, Denis.
  • Geoghegan-Quinn, Máire.
  • Haughey, Seán.
  • O'Donnell, Liz.
  • O'Donoghue, John.
  • O'Hanlon, Rory.
  • O'Keeffe, Batt.
  • O'Keeffe, Ned.
  • O'Leary, John.
  • O'Malley, Desmond J.
  • Power, Seán.
  • Hughes, Séamus.
  • Jacob, Joe.
  • Kenneally, Brendan.
  • Keogh, Helen.
  • Killeen, Tony.
  • Kirk, Séamus.
  • Kitt, Michael P.
  • Kitt, Tom.
  • Lawlor, Liam.
  • Leonard, Jimmy.
  • Martin, Micheál.
  • McCreevy, Charlie.
  • McDaid, James.
  • McDowell, Michael.
  • Moffatt, Tom.
  • Molloy, Robert.
  • Morley, P.J.
  • Moynihan, Donal.
  • Nolan, M. J.
  • Ó Cuív, Éamon.
  • O'Dea, Willie.
  • Quill, Máirín.
  • Smith, Brendan.
  • Smith, Michael.
  • Treacy, Noel.
  • Wallace, Dan.
  • Wallace, Mary.
  • Walsh, Joe.
  • Woods, Michael.


  • Ahearn, Theresa.
  • Allen, Bernard.
  • Barrett, Seán.
  • Barry, Peter.
  • Bell, Michael.
  • Bhamjee, Moosajee.
  • Boylan, Andrew.
  • Bradford, Paul.
  • Bree, Declan.
  • Browne, John
  • (Carlow-Kilkenny).
  • Bruton, John.
  • Bruton, Richard.
  • Burke, Liam.
  • Burton, Joan.
  • Byrne, Eric.
  • Carey, Donal.
  • Connaughton, Paul.
  • Connor, John.
  • Crawford, Seymour.
  • Creed, Michael.
  • Crowley, Frank.
  • Currie, Austin.
  • Deasy, Austin.
  • Deenihan, Jimmy.
  • Dukes, Alan M.
  • Durkan, Bernard J.
  • Ferris, Michael.
  • Finucane, Michael.
  • Fitzgerald, Brian.
  • Fitzgerald, Eithne.
  • Fitzgerald, Frances.
  • Flaherty, Mary.
  • Flanagan, Charles.
  • Gallagher, Pat (Laoighis-Offaly).
  • Gilmore, Eamon.
  • Harte, Paddy.
  • Higgins, Jim.
  • Hogan, Philip.
  • Howlin, Brendan.
  • Kavanagh, Liam.
  • Kemmy, Jim.
  • Kenny, Enda.
  • Kenny, Seán.
  • Lowry, Michael.
  • Lynch, Kathleen.
  • McCormack, Pádraic.
  • McDowell, Derek.
  • McGahon, Brendan.
  • McGinley, Dinny.
  • McGrath, Paul.
  • McManus, Liz.
  • Mitchell, Gay.
  • Mitchell, Jim.
  • Mulvihill, John.
  • Nealon, Ted.
  • Noonan, Michael (Limerick East).
  • O'Keeffe, Jim.
  • O'Shea, Brian.
  • O'Sullivan, Toddy.
  • Owen, Nora.
  • Penrose, William.
  • Quinn, Ruairí.
  • Ring, Michael.
  • Ryan, John.
  • Ryan, Seán.
  • Shatter, Alan.
  • Sheehan, P.J.
  • Shortall, Róisín.
  • Spring, Dick.
  • Stagg, Emmet.
  • Timmins, Godfrey.
  • Upton, Pat.
  • Yates, Ivan.
Tellers: Tá, Deputies O'Donnell and Keogh; Níl, Deputies J. Higgins and B. Fitzgerald.
Question declared lost.