Dáil Éireann debate -
Tuesday, 15 Oct 1996

Vol. 470 No. 1

An Bille um an Seú Leasú Déag ar an Bunreacht, 1996: An Dara Céim. Sixteenth Amendment of the Constitution Bill, 1996: Second Stage.

Minister for Justice (Mrs. Owen)

Tairgim: "Go léifear an Bille an Dara hUair." I move: "That the Bill be now read a Second Time."

I was concerned when I saw a vote being called on the Order of Business that Opposition colleagues did not want to deal with this serious matter, but I am glad we are now able to proceed with the debate.

The Bill proposes to amend the Constitution through inserting a new Article 40.4.7º which will state:

Provision may be made by law for the refusal of bail by a court to a person charged with a serious offence where it is reasonably considered necessary to prevent the commission of a serious offence by that person.

Since I became Minister for Justice I have made clear my belief that changes need to be made to our bail regime to tilt the balance in favour of the victims of crime and the protection of the community generally. If the amendment is passed by the people, as I believe it will be, it will do just that.

No Government lightly brings forward a proposal to amend the Constitution. However, it is the strongly held view of the Government that in the public interest changes need to be made to our bail laws and that the effective way of making those changes requires an amendment to the Constitution. While conventional wisdom suggests that the amendment we are proposing has the support of a large majority of the people, I nevertheless appeal to people to follow the debate over the next few weeks as to whether we should make this fundamental change to their Constitution.

The amendment being proposed is relatively straightforward. There are no great complexities of law involved nor sophisticated technicalities at issue. What people are being asked is whether they agree with the idea that it should be possible to introduce laws which would allow a court to refuse bail to a person charged with a serious offence if it is reasonably considered necessary to prevent the commission of a serious offence by that person.

As the House is aware, the amendment arises against the background of the Supreme Court decision in the O'Callaghan case in 1965. Following that decision, bail can be refused by our courts on only two grounds, the likelihood that an accused will not turn up for trial or will interfere with witnesses or evidence. This means that it is not open to our courts when considering a bail application to take into account at all the question of a person committing serious offences if released on bail, even where, for example, the accused has a long track record of being involved in serious crime while on bail on previous occasions. If people believe that situation is wrong, then the only way to change it is by amending the Constitution along the lines proposed.

Since the amendment was published groups which are opposed to it have put forward a number of criticisms and it is important that I should address these issues in my contribution to this debate. It is argued that changes can be made to our existing law which would deal with the problem of offending on bail without the necessity for an amendment of the Constitution. The Government accepts that some worthwhile reforms of our bail laws can be made without an amendment to the Constitution and I am preparing legislation to this end. The main purpose of the legislation is to make changes in three areas.

At present bail is often granted on the promise of someone to pay money if the accused fails to turn up for trial. At that stage no money changes hands. The new legislation will provide that generally some cash or equivalent of cash has to be put up as part of bail. The proposed legislation will also allow a condition to be attached to bail that an accused is of good behaviour and bail money can be forfeited if an offence is committed while on bail.

The legislation will strengthen the provisions of the 1984 Criminal Justice Act relating to the imposition of consecutive sentences for offences committed on bail to ensure as far as possible that an offender is always worse off in terms of penalty where an offence is committed on bail. However, while these changes are worthwhile they cannot ensure that offences will not be committed on bail. They do not and cannot address the central issue of whether a court should be allowed in certain circumstances to take into account the question of someone committing a serious offence if granted bail.

Another suggestion is that providing for speedier trials would do away with the need for the bail referendum. A wide range of measures has been taken to ensure speedier trials. These measures include the appointment of additional judges, extended sittings in the courts and, perhaps most fundamentally, the establishment of the Working Group on the Courts Commission which is involved in a radical overhaul of the operation of the courts. Yesterday I announced the establishment of an advisory group on criminal law and procedure which will also have a useful role to play in this regard.

However, the reality is that despite all the improvements which are being brought about there will always be some lapse of time between a person being charged with an offence and the trial taking place, not least to give the accused an opportunity to prepare a defence. The provision of speedier trials does not and cannot address the central issue of whether a court should be allowed in certain circumstances to take into account the question of someone committing a serious offence if granted bail. It is worth putting on record the fact that traditionally the courts give priority to hearing cases where the accused has been remanded in custody.

Opponents of the amendment have also suggested that our prisons will not be able to cope with the extra numbers of prisoners who will have to be accommodated on remand. This suggestion seems to overlook that the changes we propose in our bail laws are being brought forward against a background of a major programme of prison building which will involve the provision of about 800 extra places, an unprecedented increase of about one-third of our existing accommodation. I think it fair to describe the criticisms I have mentioned as being to some extent tactical in nature rather than going to the heart of the issue.

Opponents of the amendment believe that as a matter of principle it is wrong to deprive someone of their liberty without that person having been convicted. It is perfectly legitimate to argue in favour of that principle but the question which arises is whether, given the modern realities of crime, we can afford to make that principle absolute or whether it should be modified in the interest of providing an appropriate balance in our law. Treating the principle as an absolute one means that there would be no circumstances in which a person is deprived of his or her liberty on remand no matter how strong the evidence that an offence will be committed by that person if granted bail. In fact, under the law as it stands the courts are allowed to detain a person in custody pending trial on the basis of taking a view of the accused's likely behaviour if released. This arises where a court has to take a view as to whether the current grounds for refusing bail apply, the likelihood that an accused will fail to turn up for trial or interfere with witnesses or evidence. The concept of taking a view as to someone's future behaviour in deciding whether bail should be granted is, therefore, not new, as some would suggest. What is at issue in the amendment is whether the question of offending if granted bail should also be a matter which the court can take into account.

Our bail laws are regarded as liberal compared to those which apply elsewhere. The Law Reform Commission's report on the law of bail examined the position in many other jurisdictions and found that all of these allowed the question of offending on bail to be taken into account by the courts in deciding whether to refuse bail. It is not, I suggest, a sustainable proposition to argue that our crime problems are so uniquely different from those in other jurisdictions that we need not arm ourselves with provisions in our law to prevent offending while on bail which are readily available in other countries.

A balance must be struck in our bail laws between the rights of the accused and the rights of the community. The present proposals represent a measured way to tilt the present balance in favour of the victims and potential victims of crime and the community generally while building in necessary safeguards. What is at issue in passing this legislation is allowing the people to express a view — in the light of their knowledge and in too many cases, unfortunately, their experience of the modern realities of crime — and to decide whether we as a society can afford to have our present liberal bail laws. It gives the people an opportunity to have their say as to how one aspect of our crime problem should be tackled.

Much consideration went into the task of devising a suitable amendment to the Constitution. On one hand, we did not want to bring about a situation where people would be refused bail in relation to relatively trivial offences. On the other, we wanted to produce a wording that would make a genuine difference in practice to the bail regime where serious offences were at issue. We finally settled on a proposed wording which we believe strikes this balance and has two practical advantages. First, it is relatively straightforward and it will be easily understood by the people. Second, in the longer term it has the advantage that it is based on the relevant part of the European Convention on Human Rights, Article 5(1), which allows for the deprivation of liberty "when it is reasonably considered necessary to prevent [a person] committing an offence".

The House will be aware that the Government has made available an outline of the main provisions of the bail legislation it proposes to introduce should the Constitution be amended. The Government believes these proposals should help to inform public debate on the proposed amendment of the Constitution. The outline legislation sets out the serious offences to which the new bail regime would apply and the criteria to which the courts would have regard in considering whether the refusal of bail to a person charged with a serious offence is reasonably considered necessary to prevent the commission of a serious offence by that person.

A dual approach is taken to specifying the offences to which the new bail regime can apply. First, a "serious" offence is defined as an offence carrying a maximum penalty of five years' imprisonment or more. Second, a schedule is included setting out the wide range of offences covered by the legislation. This approach means that, while all offences to which the legislation will apply must carry a maximum penalty of five years or more, not all such offences will be covered by the legislation, primarily on the grounds that some of the offences in our current law carrying such a penalty are archaic or unlikely to be ones where the question of reoffending is relevant.

Refusal of bail will not apply automatically in respect of any particular offence or category of offence. Such refusal in relation to any particular offence is and will continue to be a matter for the courts to decide in the light of the criteria set out in the legislation.

The outline legislation sets out seven matters to be taken into account by the courts, where appropriate, in deciding whether it is reasonably considered necessary to refuse bail to prevent the commission of a serious offence. The first is the nature and degree of seriousness of the offence in respect of which the accused person is charged and the potential penalty; second, the nature and degree of seriousness of the offence apprehended and the potential penalty; third, the conviction of the accused person in respect of an offence committed while on bail on a previous occasion; fourth, any previous conviction of the accused person including a conviction under appeal; fifth, any other offence in respect of which the accused person is charged and is awaiting trial; sixth, the nature and strength of the evidence in support of the charge; and seventh, whether the accused has a substance addiction.

It is important to note that the outline legislation provides that in determining whether refusal of bail is reasonably considered necessary to prevent the commission of a serious offence it shall not be necessary that the commission of a specific offence is apprehended. To have to prove that a specific offence would be at issue if bail were to be granted would be likely in practice to impose a standard of proof which could rarely, if ever, be met. The particular provision I mentioned will ensure that the new bail regime will be workable and effective.

The outline legislation provides for a review of bail applications if the trial has not commenced within four months of the initial refusal of a bail application. While the granting of bail would not be automatic in such circumstances, the court is to have regard to any undue delay on the part of the prosecution in bringing the case to trial and to order the release on bail of the accused if satisfied that the interests of justice require it.

When announcing the wording of the amendment, I indicated I was still considering with my Government colleagues the best way to make information available to the public in the run-up to the vote. In keeping with the McKenna judgment the Government will not be spending public moneys to achieve a particular outcome to the referendum. However, it has decided today that there will be an ad hoc commission in relation to the provision of information and the Minister for the Environment will make the details known shortly.

The issue of bail has been discussed in this House on numerous occasions over the past couple of years. Opposition Deputies have expressed frustration at what they regarded as delays in dealing with this matter. All Governments over the past 30 years have grappled with this issue but this is the first one which has succeeded in grasping the nettle and bringing forward comprehensive, considered and practical proposals which should deal with it once and for all. I believe it will be possible for all sides of the House to put aside political differences and not detract from the message which I am sure all of us want to go clearly from this House to the people: this is a necessary change to the Constitution which will help in the fight against crime. Amending our bail laws is no panacea for dealing with all our crime problems but the referendum provides a practical opportunity for people who are so understandably concerned about crime to use their democratic franchise to make a difference for the better to the quality of life in our society.

I commend the Bill, ultimately to the people and for the present to this House.

Mr. O'Donoghue

I support the principle behind the Bill which the Minister has introduced today. On 27 September 1995 I, on behalf of the Fianna Fáil Party, introduced the Fifteenth Amendment of the Constitution Bill to the House. In introducing the Bill I stated: "The manner in which Article 40.4.1º of the Constitution has been interpreted by the courts has, in recent years, resulted in a real, substantial and continuing injustice to the people of Ireland". That statement is as true today as it was 13 months ago. I believed then, as now, that there is a need to amend the Constitution to enable a judge to remand an accused person in custody pending trial if he is satisfied by credible evidence that the person is likely to commit further serious crime if released.

Much has changed since September of last year when Fianna Fáil proposed a referendum on bail. People have needlessly suffered at the hands of criminals. People have reluctantly joined the ranks of those in favour of the holding of a bail referendum. The number of Fianna Fáil and Progressive Democrats Deputies who voted in favour of the referendum has been swollen by the majority of Deputies who saw fit to walk through the "Níl" lobby in 1995. I welcome their change of heart and their recognition that change is necessary. Public opinion has resulted in a stampede towards the referendum shuttle.

Mrs. Owen

The Deputy also changed his view.

Mr. O'Donoghue

Politicians who blocked progress last year are seeking to occupy standing room only seats this year. I wonder why? The principle behind this amendment cannot be considered constitutionally adventurous so that it would render our law out of line with international norms. It would merely give people the protection which other countries have for some years past recognised as being necessary.

In the United Kingdom, the Bail Act, 1976, provides:

The Defendant need not be granted bail if the Court is satisfied that there are substantial grounds for believing that the Defendant, if released on bail (whether subject to conditions or not) would

(a) fail to surrender to custody, or

(b) commit an offence while on bail, or

(c) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person.

Similarly, in New South Wales the Bail Act, 1978, permits a court to consider "...the likelihood that a person will or will not commit an offence while at liberty on bail" in deciding whether an accused should be released on bail.

An amendment of the type proposed would bring Ireland into line with other common law jurisdictions. It would give practical effect to the right to liberty enshrined in Article 40 of the Constitution which is not an absolute right but is subject to other constitutional rights. It is expressly provided in the Constitution that it is a right which may be prescribed "by law". Ordinarily, this occurs after a trial and conviction.

However, it is significant that both the Supreme Court and the Oireachtas have recognised there are circumstances in which people may be deprived of their liberty prior to conviction. Arrest and detention under section 30 of the Offences Against the State Act, 1939, under section 4 of the Criminal Justice Act, 1984, or under the provisions of the recently enacted drug trafficking legislation are examples of statutory curtailments of the right to liberty necessitated by the requirement of the common good.

In the O'Callaghan case, the Supreme Court also recognised there were circumstances in which an accused person could be deprived of his or her right to liberty prior to trial and conviction. A judicial acceptance of the likelihood that an accused person will abscond or interfere with witnesses are acknowledged grounds upon which an accused person may be deprived of his liberty prior to trial.

The proposed amendment merely suggests a limited extension of the existing criteria on which bail can be lawfully withheld. It is a matter of regret to everyone that this limited action is necessitated by the nature and extent of criminal activity. Thirty years ago the idea of large numbers of drug addicts who would need hundreds of pounds per day to feed their addictions was unthinkable. Unfortunately, for us it is a reality today. It is a part of our society which must be addressed. The existing law, which compels a judge to release on bail a drug addict who as a matter of certainty can only feed his addiction through crime serves neither society nor the drug addict well.

There is no constitutional right to steal. The right to liberty carries with it a corresponding responsibility to respect the constitutional rights of others. I am reminded of the words of an English philosopher who once sat in the House of Lords and who said: "Freedom to do every mortal thing one wants why that is to have no freedom at all". This is logical. In the unlikely event of the Minister attempting to kill me or vice versa— we have come close — the proposition could be fairly made that neither of us has any freedom.

If a court is satisfied that a person charged with a serious criminal offence is likely to interfere in a significant way with the constitutional rights of other citizens that court must have the power to protect those citizens.

The number of offences committed by accused persons on bail is unacceptably high and has increased in recent years. This referendum will offer the people some protection against this type of crime. It is both necessary and overdue. In the past thirteen months thousands of offences have been committed by people on bail. Many of them could have been prevented had this referendum taken place last year. The reason it did not take place is readily ascertainable. One only has to turn to cols. 1171 and 1172 of the Official Report, 4 October 1995, vol. 456, which set out a list of the Deputies who voted against holding a bail referendum in 1995. Included on this list are those Labour Party Deputies who have made a career of talking tough and voting soft when it comes to the issues of crime and drugs, including Deputies who proclaim the need for radical changes in press releases and who slink through the division lobbies in support of the status quo. Deputies Bhreathnach and Shortall led the charge for the Labour Party against the amendment group. How strange is the silence from them now. Do they think silence now will ward off the wrath of their constituents?

I regret that a majority of the House voted against holding a constitutional referendum last year, and that when the Tánaiste and Minister for Foreign Affairs, the lord of the dance, clicked his fingers the Fine Gael Parliamentary Party danced through the "Níl" lobby. It is not the first time, and it will not be the last time that the members of the Fine Gael Parliamentary Party will waltz when the Tánaiste and Minister for Foreign Affairs clicks his fingers.

I also regret that the Minister for Justice provided the intellectual justification for opposing the Fianna Fáil Bill which proposed holding such a referendum. It is instructive of her motives and the manner in which she has gone about the management of her portfolio to note what she had to say in the debate on holding a constitutional referendum on bail last year. According to the Official Report, 27 September 1995, vol. 456, col. 267, she stated: "...not only has Deputy O'Donoghue brought forward his amendment at the wrong time, certainly too early, but he is putting it in the wrong place." This jeering jibe was tossed across the floor of the House in an attempt to belittle the legislation introduced by Fianna Fáil and to give a spurious legal solemnity to the Government's opposition to holding a bail referendum.

The Minister's words have returned to haunt her. She argued that any proposed amendment of the Constitution relating to bail would have to meet the provisions of Article 38. According to the Official Report, 27 September 1995, vol. 456, col. 267, the Minister stated: "Article 38 of the Constitution deals with the `Trial of Offences' and, in those circumstances, an amendment dealing with bail might more properly be made to Article 38". The Minister's tenuous and inadequate grasp of the complexities of her portfolio is adequately demonstrated by the fact that when she eventually got around to introducing legislation 13 months after voting down the Fianna Fáil Bill the amendment which she proposes is to Article 40, the Article to which the Fianna Fáil amendment was addressed, and not Article 38 of the Constitution.

Who told the Minister to say in autumn 1995 that the Fianna Fáil amendment was in the wrong place? Did she make this constitutional blunder or did she blindly rely on deficient legal advice? What conclusion should be drawn about the ability of a Minister for Justice who cannot correctly tell the House which Article of the Constitution needs to be amended to curtail the right to bail? Will she apologise or even say she was wrong? Will she say that Fianna Fáil was right in asserting that an amendment to Article 40 was the appropriate method of bringing about the required change? I doubt it.

Her record in office is a catalogue of illfounded criticism of legislation initiated on this side of the House followed by acceptance of the pressing need for such legislation. This side has become accustomed to wild and unsubstantiated allegations of unconstitutionality emanating from the Minister to be followed rapidly by an acceptance of the need for such legislation. The policy of derision followed by transcription has been implied by the Minister. Measures which the Minister derided and voted down last year have now become her policies. I welcome her change of mind and the manner in which the Government has accepted legislation introduced by Fianna Fáil. However, I regret that its initial tardiness has caused needless suffering to a new generation of victims.

The second criticism by the Minister in September 1995 of the Fianna Fáil Bill to provide for a constitutional referendum on bail was that it was "certainly too early". If that Bill had been passed, the referendum could have been held on the same day as the divorce referendum. The Minister suggested this when she made her politically infamous solo run on the Farrell programme on RTÉ television. Why was it "certainly too early" when I proposed it but politically apt when the Minister proposed it? The reason is that the Minister was going through her protracted legislative avoidance phase and any excuse for inaction would do. However, her words return to haunt her. It is unnecessary to look beyond the inconsistencies of her utterances to recognise the absurdity of her contradictions.

Jabbed into action by the fury of the people, the Minister has become a new age Winnie the Pooh, frantically looking for legislative honey pots in which to dip her paw.

Mrs. Owen

The Deputy is doing well today.

Mr. O'Donoghue

What was in the wrong place and "certainly too early" last year is miraculously in the right place and timely today. It is plain the Minister was in the wrong place.

Mrs. Owen

Wisdom.

Mr. O'Donoghue

The age of procrastination is over and we have entered the era of welcome and unashamed plagiarism. If one wants to know what the Minister will do this year, all one must do is examine what Fianna Fáil did last year.

Mrs. Owen

One should look at what Fianna Fáil did not do for seven years.

Mr. O'Donoghue

I make a prophecy that before this Dáil is over, the Labour Party and Democratic Left Deputies, including the timber wolf of the rainbow coalition, Deputy Eric Byrne——

Mrs. Owen

That pulls him ahead of many others.

Mr. O'Donoghue

——who talk tough and vote soft on crime and drugs will yet again be forced to change their minds.

Mrs. Owen

There is a wonderful cartoon; Winnie the Pooh and the timber wolf.

Mr. O'Donoghue

Those Deputies who have repeatedly voted against Fianna Fáil's efforts to ensure a mandatory sentence of ten years' imprisonment is imposed on any person found in possession of controlled drugs with a street value of £10,000 or more will again change their tune in the face of electorate reality. They will change their minds and their votes as they did on the issue of a bail referendum.

The two grounds on which the Minister opposed the Fianna Fáil Bill can now be seen as nakedly spurious. Neither had substance or reality and were invented for a selfish political purpose of denying the people the right to air their voice on the issue of bail. The Government wanted to deny the people this right because it was divided. It took a landslide in public opinion to sweep away the political barriers which were erected in the path of such a referendum. I am pleased the people will, belatedly, be given the opportunity to remedy the injustice which results from the manner in which Article 40 of the Constitution has been interpreted by the courts in recent years and to realign the scales of justice. For far too long the Constitution has been viewed as a document which confers rights only on those charged with criminal offences. The Constitution exists for the protection of citizens and society. It does not exist exclusively for the protection of alleged wrongdoers. However, this does not mean we should turn our backs on safeguards and protections. The concept of bail arises as a result of the inevitable lapse of time which occurs between the arrest and trial of a person.

Some delay is inevitable because the prosecution must be afforded an opportunity to prepare its case and the accused must have an opportunity to consider the nature of the evidence against him or her. However, there is a world of difference between necessary and unnecessary delay. Justice must be swift but, unfortunately, the procedures under which the courts are forced to operate effectively guarantee unacceptable delay.

It is Fianna Fáil's position that, save in exceptional circumstances, trials for serious crimes should take place within 90 days of arrest. My party has brought forward detailed legislative proposals which would make the necessary procedural changes to enable this to happen. Unfortunately, but not surprisingly, those changes have been voted down by the rainbow coalition Government. For some reason, which has not been adequately explained to the House, the Government is committed to the time consuming and wasteful preliminary examination process. The fact that less than 1 per cent of offences are filtered from the system by this process has not deterred the Government in its support for this system which guarantees inefficiency and delay.

The usual delay between the date of arrest and the date of a return for trial order being sought is approximately four months. This is before the case joins the queue of cases waiting to be heard. When I complained about this last year and earlier this year, the Minister's constant reply was that new judges would be appointed. These judges are now in place but in the Dublin Circuit Criminal Court, which deals with the greatest volume of serious criminal cases, dates for trials are being set for mid-March next year.

Mrs. Owen

It is a great improvement on the previous position. I will not tell the Deputy what it was when his party was in Government because it would embarrass him.

An Leas-Cheann Comhairle

Deputy O'Donoghue without interruption.

Mr. O'Donoghue

Despite the appointment of new judges, a delay of approximately five months still exists between a case being ready for trial and the court being available to hear it. However, this delay does not reflect adversely on the three judges regularly available to hear criminal cases in the court. The manner in which they have dealt with the avalanche of cases is a credit to them. My complaint is that despite the appointment of the new judges and the cosmetic changes the Minister has made to the preliminary examination system, an institutionalised delay of close to nine months still exists between arrest and probable trial date.

This is unacceptable and I lament the absence of any plan on the Minister's part to deal with it. In the light of this position, the inclusion in the proposed legislation of a review of a refusal to grant bail, based on the probability of further offences being committed, is a cynical and shallow piece of window dressing. As the system stands, and as the Minister permits it to stand, such reviews are guaranteed for every case.

It was once wisely stated that a week is a long time in politics. In the context of this Bill, it must be acknowledged that a year in politics is an eternity. Last year Labour Party and Democratic Left Deputies espoused so-called civil libertarian principles against holding a referendum on bail. They got their way but this year those principles have been scattered to the four winds like snuff at a wake. The reason for this is a public outpour of anger and outrage in relation to the frozen indifference and inactivity of the Minister for Justice and the Government in dealing with the serious problem of crime.

Why else would Deputies in the Labour Party and in Democratic Left seek to jump aboard what I have described as the referendum shuttle? The reason is quite simple. They want to get aboard before the shuttle pulls out of the station because they know the electorate is waiting for them. The proposed referendum on bail is not a solution to all of the ills of society, nor do I suggest that it is. It addresses a specific and limited problem. We will still need radical law reform legislation when this measure has been enacted. The Minister's record clearly indicates that it will not be forthcoming from this Government.

Following the debate in this House in July there were comments, possibly inspired by the Minister, that Fianna Fáil failed to catch the mood of the occasion. I remind those who suggested this that the proceeds of crime legislation is a testament to the fact that far from not catching the mood, we very much caught the ball, which was falling down because the Minister for Justice and the Government displayed an appalling lack of ability to tackle the crime problem. There is a very subtle difference between a humorist and a satirist. A humorist runs with the hares while a satirist hunts with the hounds. I hunt with the hounds.

Mrs. Owen

Is this an animal metaphor? I wish the Deputy would make up his mind. He does not want me to do what he suggests now that I am doing it. He is meeting himself coming back.

An Leas-Cheann Comhairle

I call Deputy O'Malley. Could we have some order for the Deputy, please?

Mrs. Owen

Sorry, a Leas-Cheann Comhairle. I am just confused about Deputy O'Donoghue's remarks.

Mr. O'Malley

Now that the Minister has calmed down, I will begin, if I am permitted. I want to put the Minister out of whatever minor agony she might be in by saying that I do not oppose this Bill and this proposed amendment. I have things to say about it, however, because I am not entirely happy about certain aspects, in particular aspects of what lies in the background to the need for this provision.

The first thing that needs to be said is that this amendment must be read on its own. Any part of the Constitution being interpreted by the High Court or the Supreme Court must be read on its own. It cannot be read in conjunction with whatever legislation arises from it or is passed as a result of its insertion in the Constitution. The Minister's approach has been to seek to explain the constitutional amendment by reference to the legislative changes or provisions which would follow it. That is putting the cart before the horse and it cannot be done. One must read the provision on its own.

The onus of proof in this provision, in other words the onus of proving that the refusal of bail should be reasonably considered necessary to prevent the commission of a serious offence by the person in custody, is on the State in opposing the application made by the person for bail. The onus of proof in the wording of this proposed amendment is quite serious and difficult. It is not possible to have resort to the various circumstances set out in the proposed supporting legislation to fulfil that onus of proof.

The Minister set out seven different headings in the statement she issued last week. Six of those form part of what were called the O'Callaghan rules and they are not new. The seventh heading is new and was not envisaged in O'Callaghan, which was decided in 1965 or 1966. That relates to whether or not the accused has a substance addiction. People did not have substance addictions in those days, or if they did, they only had them to drink or cigarettes. They were not addicted to anything worse and they were not seen in a criminal context in those times. It is interesting that with that exception, all the other headings in that section of the Minister's statement are contained in the O'Callaghan judgment and are not new.

If they are contained in the O'Callaghan judgment they pertain to the two grounds which O'Callaghan indicates are valid grounds for turning down an application for bail. These are that the defendant will not turn up or that the defendant will interfere with witnesses or with the evidence. We will use the same grounds to support a third reason, that the defendant will commit another offence. That was one of the original grounds of O'Callaghan as decided by Mr. Justice Murnaghan in the High Court in 1965, but it was overruled by the Supreme Court. It is intended to put it into the Constitution now, thereby overruling the Supreme Court. However, it is not as simple as that. It is a very complex issue which needs a lot of thought and balancing.

I draw the attention of the Minister to the part of the judgment of the then Chief Justice, Mr. Justice Finlay, in Ryan v. DPP [1989 IR 399] which is quoted at page 846 of The Irish Constitution by J.M. Kelly, where he discusses all the difficulties encountered, including difficulties encountered even if O'Callaghan is overruled. It is pointless to pick out just one example. If one had time one should read it all. However, one of the difficulties encountered is that of proving an intention to commit another crime. By what standard of proof must it be established? That is a fair question and it is up to the Minister to answer it. She will run into that difficulty whether or not this constitutional change is made.

The other questions asked by the then chief justice, who retired a year or two ago, are valid and show what a difficult field this is. It is worth putting on the record that this excerpt from the judgment finishes with the following sentiment:

The criminalising of mere intention has been usually a badge of an oppressive or unjust legal system. The proper methods of preventing crime are the long established combination of police surveillance, speedy trial and deterrent sentences.

We are faced with a serious dilemma where a significant and substantial proportion of the serious crime here is committed by people on bail. The interpretation of O'Callaghan, as we have seen it in recent years, has led to the release on bail of approximately 99 per cent of people who are charged. I do not know the exact percentage because some people who are not charged with serious offences but who, because they are not quick mentally or not well advised, do not apply for bail or do not get it. Of those who seek it, however, approximately 99 per cent get bail. The proportion of the serious crime committed by those on bail is very high and we must be seen to be doing something about that. That may be where the major problem lies. The Oireachtas has to be seen to be doing something about this problem.

It is worth drawing attention to a recent case. It was referred to by Mr. Gerard Hogan who is co-author of the book I just cited and is accepted as one of the leading constitutional authorities in the country. In an article in The Irish Times of 9 October 1996 he stated:

And to illustrate the "misapplication" argument, [that is the misapplication of the O'Callaghan rules] one need look no further than one notable recent case in which the High Court granted bail to an accused person who had a previous serious criminal record and who had also escaped from lawful custody.

Even though there was an apparent discordance between the O'Callaghan rules and its application to the facts in this particular case, it does not appear that this decision of the High Court to grant bail in this case was ever appealed to the Supreme Court ... this case, taken together with some other contemporary instances, tends to demonstrate the unduly liberal application of the O'Callaghan principles in some of the recent case law.

It is no wonder that some of these decisions have given rise to public unease.

He went on in the article to say that the better remedy might lie in appealing these decisions. It is worth drawing attention to that particular case. It is the Quinlivan-McAuley case. I understand Mr. Quinlivan is now back in custody. Mr. McAuley was living in the Limerick area and he has been missing since a particular day in early June when Detective Garda McCabe was murdered; he has not been seen since. I wonder if any application has yet been made by the State to estreat his bail and, if not, why not? He is in flagrant breach of the conditions of his bail but nothing has been done.

The Minister comes into this House and tells us that our bail laws are unsatisfactory. One of the reasons for that is that the existing laws, many of which she is re-enacting in her proposed legislation, are not being used and are not being enforced.

Mrs. Owen

I do not interfere. It is a matter for the courts.

Mr. O'Malley

I wonder has the Minister made representations to those who do and should——

Mrs. Owen

I cannot interfere with the independence of the courts.

Mr. O'Malley

——to get on their bike and do it. These two gentlemen were given bail here six or nine months ago even though there was evidence that while on remand in custody in another jurisdiction, they broke out of that custody using loaded firearms to effect their escape. How could it be suggested they were suitable people to get bail?

Mrs. Owen

Ask the judge.

Mr. O'Malley

If a judge made a decision that they were, as he did in this case, why did the State not appeal that decision to the Supreme Court? It is making a joke of our existing law and it clearly shows that non-enforcement of that law is as much of a problem as lacunae in the law or in the Constitution.

Legislation short of that which flows from a constitutional amendment of this kind would be valuable. In her opening contribution the Minister stated she is now proposing legislation to strengthen the provisions of the Criminal Justice Act, 1984 in relation to the imposition of consecutive sentences for offences committed on bail; to require persons going bail to guarantee the good behaviour of the accused while on bail and allow for forfeiture of bail in this regard; and to require cash, or the equivalent of cash, to be lodged as part of bail.

That measure was contained in a Bill brought forward in this House by Deputy O'Donnell at the beginning of this year. It was not alone defeated by the Government, it was rubbished by the Minister in her usual rubbishing voice——

Mrs. Owen

Which is what?

Mr. O'Malley

——that she resorts to fairly frequently, particularly where Deputy O'Donnell is concerned.

Mr. O'Donoghue

I dream of it.

Mrs. Owen

That is the most exciting thing that has been said to me today.

Mr. O'Malley

I see the Minister is also sensitive about Deputy O'Donoghue.

Mrs. Owen

Deputy O'Donoghue dreams about me.

Mr. O'Malley

It seems this Minister for Justice intensely dislikes her opponents.

Mrs. Owen

Deputy O'Donoghue said he dreams about me. I am chuffed.

Mr. O'Malley

Those provisions were rubbished at the end of January. We are now into October and they are fine, they have to be enacted. Talk about consistency, U-turns and changing one's mind. This Minister has brought that to what one might call a fine art were it not such a sad and sorry affair. If it is now essential for the protection of our society in October, why was it rubbish in January? What has happened since to change it from rubbish to being essential?

Mrs. Owen

Has the Deputy told Deputy O'Donnell he is in here opposing it? She recommends the Deputy's support for the Fianna Fáil Bill.

Mr. O'Malley

I am not opposing anything.

An Leas-Cheann Comhairle

Deputy O'Malley, without further interruption.

Mrs. Owen

Everything Deputy O'Malley has said is in opposition to this Bill.

Mr. O'Malley

I am commenting on it. I prefaced my remarks by saying I was not opposing it.

Mrs. Owen

I hope the Deputy has told Deputy O'Donnell. She will be an angry woman. She probably does not know the Deputy is in here.

An Leas-Cheann Comhairle

Deputy O'Malley, without interruption.

Mr. O'Malley

One of the difficulties that would arise if this proposed constitutional amendment, and the legislation that is supposed to flow from it, were enacted is that, presumably, substantial pressure would be put on the prisons and on prison space if a large number of people were expected to be remanded in custody, perhaps for lengthy periods of up to four months, before their trial takes place. That is worth consideration because if there were a serious intent to have large numbers of people in custody, I do not see how they can be coped with in present circumstances.

We have what is called a revolving door policy and, as far as I can see, the only people who are not allowed avail of the Minister's revolving door policy are civil debtors because she is not allowed to release those under law. If one is anything other than a civil debtor, however, even a kidnapper or some other serious offender, one can avail of this revolving door policy. We are well aware of people who were arrested and convicted of quite serious crimes only to reappear on the streets within a matter of weeks even though they were given long terms of imprisonment.

How is it envisaged that the prison system will cope if large numbers of people are held in custody under this proposal? Those who have examined it are not at all sure that there will be large numbers of people in custody. The article I already quoted, by Mr. Gerard Hogan, is headed "bail reform will affect only marginal cases". Having analysed it, he has come to the view that only a small number of cases will be affected by what is proposed here. If that is so, it is something of an effort to mislead the public in respect of what the outcome would be.

It seems that, while this constitutional change may well be desirable and, on balance, should be proceeded with, equally essential and perhaps more important in terms of fighting crime is what is called the other bail legislation which, on the Minister's own admission, has nothing to do with this proposed amendment or the legislation subsequent to it, and which she now says she will introduce, even though she rubbished it recently when it was proposed by others. That is more likely to have an effect on the situation we face.

What we should strive to do is to give the Judiciary discretion on bail similar to that in other common law jurisdictions. At present the Judiciary does not have that. We have the most liberal bail laws, certainly in the common law world and, I believe, in the entire world. I do not know that what is being proposed will make any major change to that. It greatly depends on how it is interpreted, and it will have to be interpreted on its own, not by reference to the legislation that follows it. The public may buy that from the Minister, but the Supreme Court will not. I ask myself whether people like the two defendants I mentioned earlier, who got bail in very unusual circumstances, would get bail in the same circumstances in any other country. I venture to suggest they would not. I am not sure that this provision will have any effect. Surely what was relevant there is not what future crimes might have been committed by these two gentlemen but the crimes they committed in the past and, in particular, their actions while they were on remand. There was nothing in the O'Callaghan case to stop the court or the State taking that into account when they made their application.

We clearly cannot continue as we are, but we have to ask ourselves whether what is proposed is adequate to deal with the very serious problem we face and whether it is the appropriate way of dealing with it. An alternative way of wording this amendment, which would overcome some of the difficulties I foresee in relation to this, would be to have a provision on the lines that bail can be refused to a person charged with a serious offence where the court considers it just to do so, having regard to (1) the nature of the offence charged, (2) the circumstances of the arrest of the accused, (3) the character of the accused, including his actions while on bail in the past and (4) such other matters as the court considers relevant, such as drug dependence or other matters of that kind.

If the Minister is trying to cure all the difficulties and ills of our bail system by putting the onus on the State to prove that a defendant or an applicant for bail is likely to commit further offences, she may not help herself very greatly. The onus put on the State by that may be too heavy in many cases.

Mrs. Owen

Has the Deputy an alternative?

Mr. O'Malley

It depends on how the courts interpret it. Given the manner in which they interpreted O'Callaghan and the three occasions subsequently when the Supreme Court was invited to overrule O'Callaghan in Ryan and two other cases, and given the unchallenged decision of the High Court recently to release Quinlivan and McAuley in the manner that it did, I do not know that the courts are of a mind to interpret this proposed new provision of the Constitution in a way that will make a major difference. I would prefer that it did make a major difference. I would prefer that it was more complete and that it gave a wider discretion. The wording I have suggested here, which I am not putting forward as an alternative but as something that should be thought about, would overcome some of those problems. Those problems will be overcome if the courts are given a wider discretion rather than tying them down to specific things. If the courts have a wide enough discretion, and if they exercise common sense, which they usually do, we will avoid some of the awful consequences we have had in terms of people being released and committing serious offences while on bail.

There is a major problem, a major conflict between the philosophy of this and the philosophy as laid down repeatedly by the Supreme Court. Much will depend on how the Supreme Court interprets this when it is passed. There are different ways of interpreting it. Some of the other ways may be superior. It would be better if the Minister kept an open mind on these things because she seems nearly always to be opposed to views expressed in this House and then finds she has to change her mind.

Mrs. Owen

I have the best record for accepting Opposition legislation of any Minister, including the Deputy. He never accepted an Opposition Bill during his time as Minister. Just remember the record.

Mr. O'Malley

It is a pity that matters of fundamental importance, amendments to our Constitution, have to be debated in this personalised, childish, schoolgirlish fashion——

Mrs. Owen

It was the Deputy who raised it. He accused me of not accepting Opposition views.

Mr. O'Malley

——by the Minister for Justice who seems to attack everybody who does not agree with every word she utters.

Mrs. Owen

To be honest, I preferred Deputy O'Donnell who was at least logical. There is no logic to this argument.

An Leas-Cheann Comhairle

The Chair should not be disregarded to this extent. This level of interruption is unacceptable and will not be tolerated. Deputy O'Malley should continue and conclude his speech within the next three minutes.

Mr. O'Malley

It is rather sad that we are reduced to this level of debate. I am not sure in these circumstances that there is very much future in trying to make serious points arising out of this. There are some very serious matters relating to it that I would have thought might have been considered. In particular, the article by Mr. Hogan, to which I have referred, has some telling things to say. Nothing the Minister said today contradicted or dealt with any of it. I am fearful that what is being done will not be particularly effective in the long term and that it will not make the major difference which is being claimed. However, I hope the other bail legislation referred to in paragraph eight of the Minister's recent statement will be brought forward rapidly and that it is not dependent on the passage of this amendment or its adoption in a referendum. It can be introduced now and I believe it should be. An attempt has already been made to introduce it but it was voted down. If the Minister brings it in, it will not be voted down in the future.

We face serious crime with hardened criminals apparently free to walk our streets. There is a sense of fear that is without parallel in our history as an independent State. I hope those of us who are concerned about this and who have had to deal with serious situations in the past will be given at least the courtesy of being listened to when we express our views about it and that the debate will be conducted on a serious level——

Mrs. Owen

In a less personalised way against me.

Mr. O'Malley

——without the kind of interruptions to which Deputy O'Donoghue and I — and presumably further speakers — will be subjected.

Mrs. Owen

The Deputy personalised it against me, I am entitled to personalise it against him. The Deputy cannot deny that he did that.

An Leas-Cheann Comhairle

It would be unfortunate if one had to suspend proceedings in order to allow people compose themselves but if that is necessary it will be done.

Mr. O'Dea

I wish to correct an erroneous statement made by the Minister about my constituency colleague, Deputy O'Malley, who said he never accepted an amendment in his life.

Mrs. Owen

I said a Bill.

Mr. O'Dea

I sat on the special committee for many months debating the companies legislation when Deputy O'Malley was Minister and he was open to amendments and accepted quite a number, many of which were tabled by the Minister's party. I have rarely seen a Minister more amenable to accepting amendments.

Mrs. Owen

I apologise to Deputy O'Malley, but I said a Bill.

Mr. O'Dea

This is a serious topic.

Mrs. Owen

I apologise to Deputy O'Malley if he has accepted amendments.

Mr. O'Dea

I agree with the proposal before the House and intend to support it in the referendum. It is almost a carbon copy of a proposal put forward by Fianna Fáil and the Progressive Democrats. I am surprised nobody from the left is here to listen to the debate as they were conspicuous by their presence during the two previous debates on this issue. On that occasion they rubbished and undermined the proposals put forward by this side of the House just because they came from this side. Today the Minister came in with a carbon copy of those proposals which she introduced as the font of wisdom, a panacea, which she had suddenly discovered to tackle the serious crime problem.

The proposals we put forward, while broadly similar to those before the House today, were not put forward in isolation as apparently is this proposal. They were accompanied by other proposals on prison reform, increasing the number of prison places and by detailed legislative proposals on shortening the period between arrest and trial. We proposed a 90 day maximum period and a legislative mechanism to bring that about which the Minister voted down and rubbished, supported by her colleagues on the left.

Any change in the law which makes bail more difficult to obtain will result in more people being remanded in custody. That is a diminution of civil liberties but, at the very least, it should be accompanied by a provision that these people will spend the least possible period in custody by reducing the amount of time between arrest and trial. That is precisely what we proposed. We had specific proposals to abolish the outdated, antiquated, outmoded preliminary examination system which is a relic of history at this stage. It is a device being used by certain criminals I am aware of some who deliberately used it to make a mockery of the criminal justice system and it has no place in the 1990s. For reasons best known to itself and which have never been adequately explained to this House the Government resolutely insists on keeping it in place.

I appreciate the Government has appointed extra judges — for which we had been calling for some time. It has shortened the waiting period between arrest and trial which is necessary in the context of the bail laws but the Government has set its face steadfastly against other procedural changes which would shorten that period even further. The Minister must recognise that if Deputy O'Malley's worst fears do not come to pass and if this legislation makes a real change in that many more people will be remanded in custody than previously the detention period between arrest and trial must be shortened. If not, many people who would ultimately be found not guilty by the courts would have served an unconscionable period in custody for a crime they did not commit. The procedural changes proposed would cost little and would be minimal in comparison with other items of expenditure in the Minister's Department. I do not understand why the Government has steadfastly sets its face against them.

Everybody agrees that the O'Callaghan case of 1966 is redundant. Times have changed. The O'Callaghan decision was made to cater for the needs of society that effectively no longer exist.

The nature of crime has changed dramatically. The main agent of change has been the advent of the drugs culture. As Deputy O'Malley rightly said, drug addiction was unknown in 1966 so the nature of society has changed and the need for changes in the bail laws to accommodate that change has long been evident. It has been proposed here and has been consistently voted down by the Government. The reality is that the Government because of public reaction to events has been forced to do a U-turn. The notion that somebody can be denied bail because they are likely to commit another offence while on bail is a feature of the criminal justice system of almost every civilised country in the world. The only other European country that has a common law system similar to that of Ireland is the United Kingdom which, with possible exceptions in west Yorkshire and other places, is hardly a bastion of repression. That has been on the Statute Book of the United Kingdom for some time.

I agree with Deputy O'Malley there is a lack of bail law enforcement. He referred specifically to the case involving Mr. McAuley. I was recently presented with the startling statistic that last year in the Dublin Circuit Criminal Court there were 189 cases involving people who were in breach of their bail conditions and that in 188 of these cases no application has been made to estreat bail. I was given this statistic by an unusually reliable source and I ask the Minister to confirm or deny it.

I am not happy with the wording of the Government's amendment which will be written into the Constitution and which will be interpreted by the Supreme Court. The subsequent legislation must be read in the light of the Supreme Court's interpretation of the change being made in the Constitution to make that legislation possible. The Fianna Fáil amendment states: "If a judge is satisfied on the balance of probabilities that a person will commit a further class of offence which is also an indictable offence if admitted to bail then he may refuse bail for that offence also". The Government amendment states: "Provision may be made by law for the refusal of bail by a court to a person charged with a serious offence where it is reasonably considered necessary to prevent the commission of a serious offence by that person". I have substantial difficulty with the wording of that amendment. Section 4 of the United Kingdom Bail Act, 1976 and schedule 1 to that Act state: "The court may refuse bail if there are substantial grounds for believing that if released on bail he would, inter alia, commit an offence whilst on bail”. That wording and the wording of the Fianna Fáil amendment are more compelling and clearer than the Government wording.

I would hate to think the Government wording, which is peculiar, is drafted in such a way that a judge will only be entitled to refuse bail as a last resort. If the Supreme Court interprets the wording in that way then we are allowing the Constitution to be turned into a charter for criminals and the proposed change is cosmetic and will make no impact on the serious problem with which we are trying to deal and with which the public demand we deal. Will the Minister clarify why the Government amendment is worded in this rather strange tortuous manner?

I have referred to the necessity to make changes in criminal procedure to get rid of antiquated relics which are a device used by criminals to frustrate the system, to escape justice for as long as possible and to make a mockery of the long as possible and to make a mockery of the system. If the legislation has more than a marginal impact I would like to believe the Government is bona fide and intends it to make a difference then more people will be incarcerated. Does the Minister propose to establish a separate remand centre for the presumably increased number of people who will be remanded after being denied bail? Is it seriously proposed to imprison them with the other criminals of various hues who make up the prison population, in a gigantic human warehouse from which people leave more skilled in the ways of crime than when they entered in the first instance? The Minister must know that prisons have become universities of crime; it is where criminals learn about crime. To imprison prisoners on remand who ultimately may be found not guilty with serious criminals can have devastating consequences and put people who would otherwise have gone straight into a life of crime. Will there be a separate remand centre for people remanded on bail?

Given that the prison system is horrifically overcrowded, what is the Minister doing about the provision of extra prison spaces? If the Minister's pronouncements are to be believed the Estimates are fairly incredible we need more prison spaces even without any change. There are various Estimates and we do not know how the amendment will be interpreted by the Supreme Court. Neither we nor the Minister know what the figures will be and I would like to know the provision being made for these extra places. The Minister is well acquainted with the revolving door syndrome. If we go ahead with a proposal which will bring extra people into the prison system then the revolving door will revolve even more quickly.

As regards the prison system, somebody recently said that more than 700 people are not serving their sentences. How many more prisoners will not serve sentences if the amendment is brought into effect without a corresponding increase in the number of prison places? People who have been convicted of serious offences — people familiar with the legal system will know that apart from the civil debtors who should not be in prison in the first place, it is only the gougers who are sent to prison at the end of the day — will continue to serve an unacceptably short proportion of their sentences because of overcrowding if, without making any change in the number of places, we ensure that more people are imported into the prison system. Is this desirable or necessary? Is that what we want?

We want to see changes in the bail laws and to ensure that people who might commit a serious offence while on bail are put away and kept out of circulation until their trials come up. If convicted, we want them to be given a good long sentence, most of which they will serve. However, if we simply pass legislation, which presumably will bring many more people into the system, without providing more spaces then many prisoners will serve an even shorter proportion of their sentences. This is neither necessary nor desirable.

Has the Minister carried out a study on the cost of the prison system? Is she aware that it costs an average £42,000 per annum to keep a prisoner in prison and that the corresponding figure in the United Kingdom is £20,000 and £15,000 in France? We are not talking about gigantic expenditure and further heavy impositions on the taxpayer; rather we are talking about a rational system which will give us value for money. This debate does not deal with prison reform, but we could keep many more prisoners for the same amount of money if we got our act together.

What input will victims of crime have on this issue? I have come across cases — this is not a flight of fancy — where people who committed vicious assaults were released early from prison having served only a fraction of the sentence. Their victims complained to me that they met those people on the street. The victims were not informed that consideration was being given to granting early release to the persons who had beat them to within an inch of their life, nor were they asked for their views on it. Will the victim be consulted and given the right to say whether a person should be granted bail? Will he or she be allowed contribute to the proceedings on early release?

Mrs. Owen

The judge will make that decision.

Mr. O'Dea

If there is not a commensurate increase in funding to provide the necessary prison places to accommodate this change in the law, which I support, there will be more and even earlier releases. People tend to forget about the victims. They are marginalised to the edges of the process and used by the prosecution in the adversarial contest only if they are needed to win a case. They are then brought in without any advance notification of court procedures or warning about what to say. The system is alien to many victims, but they are subjected to rigorous cross examination and consequently some have been traumatised for life. Will they be brought closer to the centre of the criminal justice system? Will they have a say in the proceedings against a person who allegedly attacked or violated them and is being allowed bail or early release?

What about the other changes proposed by Members on this side and by independent commentators outside? What about the right to silence and implementation of the provisions in the Criminal Justice Act, 1984 on video taping of interviews, which should be introduced in tandem with the right to silence? The video taping of interviews is still being carried out on a pilot basis, a rare pilot scheme that has been ongoing for 12 years. The Minister might comment on those serious matters which relate to the question of bail.

How does the Minister propose to reduce the length of time between arrest and trial? What does she propose to do about the archaic procedures in that regard which should have been abolished years ago, perhaps even when we were in Government? How does she propose to increase prison spaces to the level she envisages will be necessary as a result of this desirable change in our bail laws? Does she intend to provide a separate remand centre for those remanded in custody and denied bail?

Mr. J. O'Keeffe

I am delighted at Fianna Fáil's conversion on this issue. In preparing for the debate I discovered Dáil questions which I and my colleagues tabled when in Opposition to a number of Fianna Fáil Ministers for Justice, but they rejected the notion of a referendum on bail. I discovered a motion which I, as shadow Minister for Justice, tabled some five years ago but which was rejected by Fianna Fáil. Newspaper headlines at the time stated, "Bail change plebiscite ruled out by Minister". The Minister in question was the then Fianna Fáil Minister for Justice, Deputy Ray Burke, who rejected out of hand my request for a referendum on bail. My successor as Fine Gael spokesperson on Justice, Deputy Barrett, tabled a Bill on the matter, but that was also rejected by Fianna Fáil. Deputy Gay Mitchell also introduced legislation in this regard. However, I am delighted at Fianna Fáil's conversion. Like St. Paul on the road to Damascus, a Pauline conversion can bring about an even more radical approach. Fianna Fáil's suggestions about tougher measures on bail and about the delay in introducing the necessary legislation should be considered in that historical context.

The position in regard to the Progressive Democrats Party is even more amusing. I recall its outrage when Fine Gael, in Opposition, had the temerity to table motions or legislation on bail. Its spokesperson, Deputy MacDowell, was outraged that civil liberties should be trampled on by daring to touch the bail legislation or suggesting that the Constitution should be amended. I am pleased the Progressive Democrats Party now recognises the need for change in this area and accepts that it does not make much sense for us to continue to have the most liberal bail laws in Europe. In 1984 Fine Gael introduced a change in the legislation which had the effect of temporarily reducing the number of crimes committed by people while on bail but the figures increased again at the beginning of this decade. While further changes in legislation can be made, as outlined by the Minister, it is refreshing to note that Members from all parties support the view promoted by Fine Gael for many years. I am pleased that there will be an all-party agreement on the need for a bail referendum.

In referring to the historical background to the question of bail, it is necessary to recall the circumstances surrounding the case of Roger O'Callaghan, whose application to the High Court was refused by Mr. Justice Murnaghan in 1966. The matter went before the Supreme Court where the landmark decision was made which provided that bail could not be refused except in two circumstances, the possibility of the accused not turning up for trial or interfering with witnesses. It is ironic that from the foundation of the State until 1966 many other factors were taken into account. Mr. Justice Murnaghan decided that 11 grounds should and could be taken into account by the court when deciding on a bail application. These included the seriousness of the charge, the nature of the evidence in support of the charge, the likely sentence, the likelihood of the commission of further offences, the possibility of the disposal, while on bail, of illegally acquired property, the possibility of interference with witnesses and jurors, the prisoner's failure to answer to bail on a previous occasion and the fact that the prisoner was caught red-handed. It was only on appeal that the Supreme Court reversed that decision and decided it was unconstitutional to refuse bail except on the basis that the accused might not attend court for trial or interfere with witnesses. All other grounds for refusal were found to be unconstitutional.

The Belgium paedophile murders is the most horrific case I have heard of in my time as a lawyer or politician. I understand the accused gentleman gave a statement to the prosecuting authorities with led them to discover bodies.

Debate adjourned.