Dáil Éireann debate -
Wednesday, 16 Oct 1996

Vol. 470 No. 2

An Bille um an Séú Leasú Déag ar an mBunreacht, 1996: An Dara Céim (Atógáil). Sixteenth Amendment of the Constitution Bill, 1996: Second Stage (Resumed).

Atairgeadh an Cheist: "Go léifear an Bille an Dara hUair".

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

Mr. J. O'Keeffe

Belgium is gripped by one of the most horrific cases in its history, the paedophile sex scandal in respect of which Marc Dutroux has been arrested. In houses which he owns the bodies of two eight year old girls and two teenagers have been discovered. He is in custody pending the completion of the investigation and trial.

One may well ask what relevance that case has in Ireland. It is very relevant. If it occurred here he could not be held in custody pending trial. The only grounds on which bail could be refused are an apprehension that he would not attend trial or interfere with witnesses. I ask those who object to the Government's proposals to consider that fully and ask themselves if they want this situation to continue where somebody who has virtually confessed to these charges would still be at large pending trial. That is the situation arising from the decision in the O'Callaghan case.

We have the most liberal bail laws in Europe. This is not something of which we should be proud and was not the intention of the founding fathers of this State or when the 1937 Constitution was drafted. Prior to the decision in the O'Callaghan case judges exercised their discretion and took into account a wide range of issues when considering whether to grant bail. The most important of these was the seriousness of the charge. It was virtually unheard of that someone charged with murder would be released on bail.

There was a range of other reasons bail could be refused. These included the nature of the evidence in support of the charge, the likely sentence, whether further offences were likely to be committed, the possibility that illegally acquired property could be disposed of while on bail and so on. As a result of the Supreme Court's decision in the O'Callaghan case all these reasons were rejected as being unconstitutional. It is significant that Judge Murnaghan specified all these reasons in the High Court in deciding O'Callaghan should be refused bail. His decision was overturned by the Supreme Court.

It is necessary to change the law. Attempts were made to deal with the matter by legislation when Fine Gael was last in Government. As a consequence of the changes in the Criminal Justice Act, 1984 made by the then Minister, Deputy Noonan, there was a reduction in the number of offences committed on bail. In 1983-84 the figure stood at approximately 8,000 per year. Following the introduction of restrictions it fell to approximately 2,500 but it has crept up again in recent years.

An examination of the offences committed on bail suggests that it was the numbers of petty crimes which fell rather than the numbers of serious crimes. That is why Fine Gael has campaigned for some time for a change in the Constitution to restore to the courts the discretion they had before the O'Callaghan case found it to be unconstitutional.

I have always believed the balance has been too much against the victims of crime and too much in favour of the criminal. The reason it took so long to change the Constitution was that Fine Gael was not in Government. In Opposition we vigorously campaigned on this issue. Five or six years ago I tabled a motion to change the Constitution, but it was defeated by the then Fianna Fáil-Progressive Democrats Government. Two Bills were subsequently tabled by Fine Gael but both were rejected by Fianna Fáil. It is a little ironic to hear the Fianna Fáil spokesman complain about delays when they caused them. The criticism of the Progressive Democrats is also odd given that they opposed Fine Gael's earlier efforts to change the Constitution. However, I am glad Fianna Fáil and the Progressive Democrats now support the move to change the Constitution.

Mr. Haughey

And the Labour Party.

Mr. J. O'Keeffe

I am glad all parties support it and have rallied behind the Fine Gael banner to change the Constitution. Opinion polls also suggest that the people support Fine Gael on this issue. I hope all parties will campaign to ensure this change is accepted.

We have the most liberal bail laws in Europe. For those concerned about civil liberties, we are moving into line with Europe. The proposal is in line with Article 5 of the European Convention on Human Rights. It is not a question of introducing draconian measures or restrictions on civil liberties; we just want to bring our Constitution into line with the prevailing situation in Europe. It is not before time that all parties supported the Fine Gael position to change the Constitution.

I am not in favour of a return to the gruesome punishments of the past where people were hanged, drawn and quartered or transported to other countries. Neither am I in favour of the surreal law of the Islamic fundamentalists where people are beheaded or their limbs amputated. I was not in favour of the attempt in Alabama to reintroduce the chain gangs, which has now been abandoned. However, I am in favour of protecting the innocent victims of crime to the greatest possible extent.

Some people would argue that it is wrong to detain an unconvicted person in custody, yet everyone, including the Supreme Court, accepts it is proper to detain an unconvicted person in custody if there is a likelihood the person will not attend their trial. Surely it is proper and should be constitutional to give back to the courts the discretion to detain someone in custody who was caught red handed, like the Belgian I mentioned earlier, and who is likely to commit further crimes before the trial? Surely it is proper that somebody involved in a heinous crime such as murder, rape or bank robbery and against whom the evidence is overwhelming should be deprived of his liberty pending trial rather than giving him the opportunity to kill, rape or rob another innocent victim in the meantime? I am reminded of the Leixlip bank robbery some years ago which ended with loss of life. I was the Opposition spokesman for justice at the time and it was relevant to note that those involved were out on bail. We must consider if the real crime is to release such offenders into society on bail where they can commit further such offences with impunity.

I have complained about the delay in changing the Constitution but I am now glad all parties support the Fine Gael position. I ask all parties to do more than just support the Fine Gael proposal in the House. I ask them to campaign because the people are the final arbiters. We cannot change the Constitution without the people's consent, so I ask all parties to join the Fine Gael campaign to ensure these changes are accepted on 28 November. I hope there will be an overwhelming vote in favour of bringing our bail laws into line with Europe and ensuring that the balance is restored in favour of the victims of crime.

Mr. Haughey

I support the proposals to change the Constitution in relation to the bail laws. The suggested wording is reasoned and balanced. It 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.

The decision in the O'Callaghan case in 1965 needs to be reconsidered. Members will be aware that in the O'Callaghan case bail could only be refused on two grounds — the likelihood that an accused will not turn up for trial or will interfere with the witnesses or with evidence. Members have said we have a liberal bail regime in this State. However, the right to liberty is not an absolute right as it also involves responsibilities. Society has a right to protect itself.

The balance needs to be tilted in favour of the victims of crime and for the good of society. In the past year we have heard that the victim is never heard in the criminal justice process. Because crimes are now so horrendous we need to change our thinking and to examine the role of victims more thoroughly. It is estimated that a staggering 5,500 indictable crimes are committed each year by people on bail. It is important to highlight why we need this change.

I draw Members' attention to the Tony Felloni case where it emerged he was repeatedly granted bail over a three year period before finally being jailed earlier this year for 20 years for heroin offences. He was a major heroin dealer and the litany makes for shocking reading. He was arrested in August 1994 at Belclare Park, Ballymun, with heroin worth £150,000; in January 1995 at Kinsealy Lane with heroin worth £75,000; in July 1995 at Dominic Street Flats in the north inner city with heroin and cash and in October 1995 with heroin and £7,200 in Irish pounds and sterling. In January 1996 he was finally remanded in custody when a drug squad officer told the court he was satisfied that Felloni was about to secure a forged passport and flee to South Africa. That was a shocking situation. The trial is now over and he has been jailed for 20 years, but it shows how the major organised criminals and drug barons are abusing our liberal bail regime. It is obvious that, during the time that major drug dealers are out on bail, they continue to plan and execute some of their major crimes. That is a situation which any decent society cannot tolerate. Examining that example alone, we can see how necessary it is for an extension to the bail law regime and the occasions when a judge can refuse it.

A Fianna Fáil Bill involving a constitutional referendum was voted down in this House 13 months ago. Why? Certainly Deputies from within the Government brought forward civil libertarian arguments as to why the bail regime did not need to be changed. It seems to commentators, this side of the House and the general public that the Government was divided on how to proceed on the bail issue. As Deputy O'Donoghue said last night, certain members of the Government were seen to be talking tough and voting soft when they went through the lobbies opposing this very measure we are about to agree to in the next few months. The Minister for Justice said on the RTE programme "Farrell" many months ago that there would be changes to the bail regime and a referendum. For some reason, that did not happen until now. People know that the Government was paralysed by indecision and different philosophies and that ideologies within it were unable to agree a serious course of action for which society and public opinion were crying out. The real change came during the summer when there was a landslide in public opinion demanding action on organised crime. It would be fair to say that the shocking murder of Veronica Guerin brought about that real demand and landslide in public opinion for the Government to do something. One of the big issues people identified at the time was that drug barons such as Felloni seemed to be getting away literally with murder and abusing our tolerant criminal justice system.

Why is nothing ever done in this country unless there is a tragedy or some shocking event to spur people into action? My experience as a public representative, albeit short compared to some, has been that we know what needs to be done in many different areas. We send letters to Ministers, Government Departments and agencies. We know what needs to be done, but nothing is done. However, when there is a tragedy or accident, a terrible and shocking event, then all arms of Government and the Oireachtas are spurred into action. That is not the way we should proceed, it should not be the politics of the last atrocity. We know the problems and experience them in our everyday life. As public representatives, we have a lot to offer because we know what is going on in the big wide world and are actively involved in many different issues. Let us try to deal with them. We do not need a shocking murder to spur us into action. We must deal effectively with the problems. At the time of the Guerin murder, the perception was that the Government had to be seen to be decisive. Thankfully, demands for a bail referendum were brought to the top of the agenda. That is possibly one of the most decisive matters in regard to crime and the criminal justice system.

One issue which needs examining regarding the consequences of this referendum and the following proposed legislation is the pressure which will be placed on our prison system. There will obviously be provisions for increased releases of existing prisoners. That must be a consequence of what the people are about to decide and we will return to the famous revolving door system. People do not want that or an increase in temporary releases which will lead to a further increase in crime. They want the provision of additional prison spaces to deal with the problem.

In the package announced by the Minister earlier this year, she made provision for an additional 400 prisoners at the new remand prison at Wheatfield, an additional 125 extra prison places at the main prison at Castlerea, an additional 60 prison places at the women's prison at the Mountjoy complex and 55 extra prison places in the new wing at Limerick Prison. That looks well in a press release but we need to know when the prison places will be made available and under what timescale. I understand some of these places are merely at the planning stage. We should be more radical in bringing prison places into existence. Even as it stands that programme is inadequate to deal with the new circumstances which will arise from the restrictions on obtaining bail. That is the kernel of the issue, it is worrying and we will have to deal with it because we do not want to create another crisis in an attempt to solve this one.

We must also seriously examine the annual cost of keeping a convicted criminal in prison. It has been stated during this debate that the cost in Ireland is far higher than in the UK and many other similar western regimes. There is no need for this. Will the Minister investigate why the annual cost for keeping someone in prison is so much higher here? If we can tackle that we will be better able to deal with the potential problem of prison spaces.

Drug addiction is one of the major issues affecting our communities. It is relevant to this debate because some of those refused bail will be drug addicts and there is a strong possibility that they will commit another crime while on bail. As Deputy O'Donoghue said, such people can be correctly described as a walking crime wave. We must further examine how to tackle drug addiction and the drug pushing which is afflicting our communities, particularly in Dublin and on a lesser scale in other towns and villages throughout the country.

Some initiatives, such as "Operation Dóchas", have been announced recently. It is welcome to see gardaí on the beat because we have been calling for that for years. The only reason the scheme was announced was that communities had decided they could bear no more so they took the law into their own hands. If they had not taken the initiative by starting patrols themselves, the new Garda actions would not have happened.

Within the last two weeks I attended a public meeting in Dublin's north inner city, with three other Members of the Oireachtas. We witnessed a trial by the community of four alleged drug pushers; the jury consisted of about 300 people in the hall. The alleged pushers were facilitated in that they were allowed to make a case in front of the "jury". It was a cheap form of justice — a vote was taken as to whether these people should be allowed to stay in the community. However, communities are frustrated so they do things for themselves. The "trial" may have been a little short on evidence but there is no doubt that the official functions of the State were being challenged in that process. It is finally dawning on the organs of Government that the problem must be tackled.

There is also the issue of treatment, including treatment for those who are refused bail if the referendum is passed. That must be a necessity. I welcome the plans announced by the Government within the last ten days to eliminate the waiting lists for treatment. I hope it succeeds but something radical is needed. We must put our heads together and provide the resources for treatment. This is the most serious issue facing many of our communities, as it threatens the fabric of society. If we do not deal with it now, late in the day though it is, the position will become irreversible.

I welcome the law and order measures to deal with drug barons which we passed during the summer, particularly the Act dealing with proceeds of crime proposed by Fianna Fáil, which provides for the freezing and subsequent disposal of assets of suspected criminals if they cannot show the assets were legally earned, and the Criminal Assets Bureau Act, which provides for the setting up of a new Garda-led unit to target criminal assets, featuring gardaí and officials from the Revenue Commissioners and the Department of Social Welfare. These two Acts are effective legislative measures. I appreciate that the Minister for Justice may not be able to report at this point on the success of those Acts but the Oireachtas must monitor their operation, so we should receive a report in due course on how they have been implemented, what success they have had and whether we need to bring forward further legislation. Another issue which should be tackled is the huge delay between the arrest of an alleged criminal and the trial date. It does not take too much imagination to work out how to deal with that — we need more judges and speedier procedures.

According to the opinion polls these measures will be supported by the people, although we must campaign vigorously. This change to the bail regime is not the ultimate solution to the crime problem, much more needs to be done. I welcome the fact that all parties now support the Fianna Fáil view that a bail referendum is needed but I regret that some of them voted against our proposals 13 months ago. In particular I welcome the conversion of the Labour party, which was on record as being opposed to changes to bail. That party has changed along with public opinion and that is for the good of the country. I believe this measure will be supported.

Mr. E. Byrne

I welcome Deputy Haughey's discovery of the drug problem. I wish to share my time with Deputy Costello.

An Ceann Comhairle

I am sure that is satisfactory and agreed.

Mr. E. Byrne

The sad reality is that this Government inherited phenomenal problems resulting from the ineptitude of Fianna Fáil. Not only have we inherited a huge potential bill and the tragedy of hepatitis C from Fianna Fáil while in Government, we have also inherited a huge bill, entailing hundreds of millions of pounds, involving equal payments to women on social welfare. We have also had to pay huge EU fines and forfeit EU money because of the behaviour of Fianna Fáil in Government.

Deputy Haughey finally recognises that this city and the country has a drugs problem. It has this problem because of the inaction of Fianna Fáil over the past ten years when the first drugs epidemic hit in the middle 1980s. The party did nothing, resulting in the destruction of communities and leaving the Government to try to catch up by chasing the dragon of heroin abusers, drug pushers and dealers. The sanctimonious sentiments expressed by Deputy Haughey are enough to provoke a saint, never mind me. I am not easily provoked but hypocrisy annoys me intensely.

Regarding the list of seven clauses setting out the grounds on which a judge may refuse bail for a charged person, will the Minister address my concerns regarding the apparent addition of the seventh clause which is concerned with whether the accused person has a substance addiction? According to The Irish Times of Friday, 11 October 1996, Judge Cyril Kelly sentenced Luigi Felloni, the son of Tony Felloni, to six years on heroin dealing charges. The judge remarked on sentencing this person that he must serve three and a half years in prison and then go to the Coolmine therapeutic centre in March 2000. The Judiciary and the Department of Justice appear to be making remarkable statements recently which are the combination of woolly thinking and unthought through policies.

Why did the judge pass such a strange sentence? One would assume that prisons were the most therapeutic communities, where after serving a sentence of, say, three and a half years, one would be drug free. Is the judge saying that the prison system is so incapable of dealing with drug addicts that on the release of every prisoner he sentences, including this person, he must serve time at the Coolmine therapeutic centre? That is a terrible indictment of the Department of Justice and the prison regime. Why would a prisoner leaving a prison require to be detoxified or treated in a therapeutic community? Why Coolmine? Is this and other treatment centres provided by the Eastern Health Board to be seen to be an extension of the prison system? If this is what is happening, how are we to accommodate those non sentenced addicts in the community who are queuing for these services? In The Irish Times today, it is reported that Judge Kieran O'Connor sentenced a man to spending one year at a drugs treatment centre, the Le Patriarch Centre, Skibbereen, County Cork, instead of five years in jail, as was his intention.

There are between 7,000 and 9,000 drug addicts in Dublin city. Many of them are responsible for the most outrageous crimes. Nobody could imagine the terror in the heart of a bus driver when, after arriving at a terminus after a long, hard day, he finds a blood filled syringe pointed at his jugular vein. Nor could anyone imagine the terror in the eyes of young and vulnerable shop assistants in small grocery stores within the inner city and other parts when people similarly point blood dripping syringes.

The logic of the refusal to grant bail on the grounds of subsidence addiction has major ramifications for the prison system. It is clear from the two newspaper reports to which I referred that judges are deeming the prison system to be an inappropriate location and are sentencing people to drug treatment centres such as the Coolmine therapeutic centre. These centres have not the capacity to cater for judges transferring sentenced people to them.

Given that this Bill will be passed and in the absence of proper drug treatment services there is the prospect of a dangerous merry-go-round where drug addicts will be arrested, the courts will be able to refuse them bail for four months and will transfer them to Mountjoy where they are unlikely to be weaned off their addiction. Judges are already accepting this. According to today's newspapers it costs £45,000 per year to keep a prisoner in jail. If we are to keep people on remand for four months this will cost £15,000 per head. The Minister should look at her budgetary situation. Is it not better, given the inevitably large numbers of drug addicts who will be presented to the courts, that we should have a remand hospital, not only to service those who will be refused bail for four months or will serve longer on remand but all drugs addicts who must be taken out of the prisons network? Such a remand hospital should be categorised in the same way as we categorise Dundrum Hospital as an institution for the criminally insane and Arbour Hill for sex offenders. We need to separate drug addicts from the mainstream criminal world of Mountjoy and other prisons. If £45,000 per year is to be spent on them in Mountjoy it makes sense that such money could be better used in creating special remand hospitals for them.

There are more then 500 people waiting to use the therapeutic or other treatment services in the State, especially in Dublin city. It will be ironic if they must wait even longer because judges are sending people to drug treatment centres. Will the Minister explain how she will address the phenomenally difficult and tragic problem of drug addiction in the prisons? Will the Department of Justice get its act together and establish some liaison with those judges who appear to be making up the rules as they go along and to be doing their best with regard to the sentencing of drug addicts? I hope the Minister will give me satisfactory answers and I wish her success.

Mr. Costello

I agree with the remarks of my colleague, Deputy Byrne, on the prison system and the need for radical action in regard to treatment. Deputy Haughey weeped crocodile tears about the inaction of the Government on this issue. However, I remind the Deputy that his party was in Government for a considerable period and if it was so concerned about the issue, it was in power long enough to have done something about it. This Government is addressing the problem.

The matter is serious because provision is being made for the deprivation of liberty of a person before a court on the new grounds of where it is reasonably considered necessary to prevent the commission of a serious offence by him or her. This follows the wording of Article 5 of the European Convention on Human Rights which states that liberty may be deprived when it is reasonably considered necessary to prevent a person committing an offence. The provisions of the Bill are not out of line with the European convention.

The background to this matter is the Supreme Court decision in the O'Callaghan case where two grounds for deprivation of liberty were specified, the possible interference with witnesses by the accused and the likelihood of the accused absconding. That case was important because it dealt with an incident where a person was remanded in custody for a considerable period. The Supreme Court took the view that the person's rights had been infringed because the case had been delayed and described it as a form of preventive detention.

At that time, in the mid-1960s, there was considerable concern that the right to liberty was a constitutional right and there should only be the minimum level of interference and this should be laid down in guidelines by the court. The court was specific in that respect when it stated that there was no place in the bail system for any form of preventive detention. It placed a huge premium on the right to liberty with regard to the basic principle in criminal law that one is innocent until proven guilty and one's liberty cannot be deprived without due process.

The danger now is that the balance may be tilted in the other direction and the deprivation of liberty could continue along the lines of the position prior to 1965 when, on the word of a garda which was accepted by the judge, a person was remanded, pending the production of the book of evidence, which often took a considerable time. There was also other delays in the court procedures. As we are aware, court procedures are notoriously slow in terms of expediting cases and the result is that a form of preventive detention may arise. It is important that the provisions as indicated in the general terms of the Bill are strictly enforced to ensure the system is not abused.

A similar regime operates in Britain where it is possible to lock up a person because they are a potential offender. However, the percentage of recorded offences committed by people on bail is higher there than in Ireland. The level here is approximately 4 per cent but the level in England and Wales where similar provisions to those in the Bill operate is higher. This aspect should be taken into account. The problem of offences committed by people on bail will not be solved by the introduction of a Bill to change the law to deprive people of their liberty.

The background to the Bill is the drugs crisis and the tragic assassination of well known journalist, Veronica Guerin. It was only then that the national consciousness recognised the epidemic of drug abuse, particularly of heroin, in the capital city and the need to address the crisis. The response has been as one would expect if there is a breakdown of law and order, or somebody is assassinated, but the danger is that it may not take into consideration all the other aspects. The drugs crisis in not a new problem in Dublin. It has been with us for approximately 20 years and has been repeatedly brought to the attention of the authorities. However, it was not addressed.

Professionals in the area, in terms of the Government and State agencies, are culpable for the current position and democracy can be undermined by the climate of fear and crime which has been created by the failure to address the drug epidemic. Successive Governments have not shown proper leadership dealing with the problem by targeting resources, recognising the extent of the crisis or putting legislation in place until now. The Garda Síochána has been most remiss in not concentrating on the drugs problem. It did not target its personnel or resources and it did not adopt a sophisticated system to deal with it. It allowed the terrible cancer of drugs to spread in the city's ghettos while it concentrated on other issues.

The medical profession has not taken the problem seriously. Most general practitioners refuse to treat drug addicts and those who treat them volunteer to do so. It is a scandal that in the general medical service doctors can opt out and state they will not treat particular patients with drug addictions for various reasons. There is no such thing as a family doctor as far as this illness is concerned. The Eastern Health Board has not provided treatment services. It is a scandal that less than half of the drug addicts who volunteer for treatment can avail of services. Heroin addicts attend meetings in the city and volunteer for treatment but nobody can tell them where to go to avail of it. If they go to one of the few clinics which exist they are placed on long waiting lists.

The problem must be redressed. The organs of the State have been remiss in dealing with the problem in the past and highly paid professionals have not done their duty. I hope the legislative measures we are putting in place now and those which were recently announced by the ministerial task force will do a lot more.

The final point I wish to make is in regard to prisons. We need a new remand prison that is well serviced and which has all the necessary facilities to deal with drug addicts.

Mr. Kenneally

I welcome the opportunity of contributing to this very important debate. When I spoke on the introduction of my party's measure to deal with the deficiencies in the bail system, on 9 May 1995, at column No. 1173 of volume 452 of the Official Report, I said: "I welcome the introduction of this Bill which is a positive measure and a genuine attempt by the Fianna Fáil party to try and come to terms with the ludicrous situation which currently exists in the operation of our bail laws."

I regret that the Minister did not then see fit to accept our measure and save the country a year and a half of criminals running free, committing acts of robbery, violence and intimidation and generally bringing our system of criminal law and accountability into disrepute. This was a year and a half of time wasted because the Minister could not accept that our measure was doing what she would have to do one day herself. To be fair to the Minister, she was only part of the Fine Gael dog which was being wagged by the Labour and Democratic Left tail. We need hardly recall her early morning declaration of her intention to seek a change in the bail situation only to have it quashed within days by her partners in Government.

The Minister has had to bear the brunt of the public odium and contempt for that dictated decision in the intervening time, but she is the Minister for Justice. She has the responsibility and is the only person who could institute the necessary change. That this change is coming at last is a good thing, but we have had to endure a year and a half of ministerial inactivity waiting for the nod from the left before she was allowed to perform as Minister. It has been a year and a half since this party presented her with a golden opportunity to initiate the relevant changes which she turned down. On 4 October 1995, at column No. 1144 of volume 456 of the Official Report, I said:

Whenever I stand up to speak in this House, I always try to treat the subject in a realistic fashion. I will do no less when speaking of the need to restrict the granting of bail by the courts, because I believe that it is a commonsense course of action to take.

I have had no reason to change my mind on the subject. This is not just common sense, but one of the most pressing needs in the legislative programme today. Many of the heinous crimes which have been committed since Fianna Fáil framed its proposal might not have happened if the laws on bail had been changed at that time. I regret it has taken the Government another year to get its act together and give the people the kind of protection they expect and deserve. I said then that it was a common sense provision and I fail to see why the Minister has seen fit to drag her feet on this matter and expose the people to unnecessary risk in the meantime.

It will come as no surprise if I give this proposal to amend the Constitution a cautious welcome. I am pleased that after such a long time, movement can now be seen in the direction in which everyone, with the possible exception of the Minister, knew we had to go sooner or later. I would have preferred if it had been sooner and that the people would have seen this House take positive steps to curb the repetitive criminal element in our society long before now. However, I welcome this provision, even if it is late. I know the people will welcome it also and will say that it has not been introduced before time.

This Bill to amend the Constitution is only a first step, but I trust that if the Government can convince the population to change the Constitution, it will follow up with speedy, comprehensive and sensible legislation along the lines outlined in the Minister's statement last week. We are often accused of having more repressive provisions in our legislation than are considered healthy by those who set themselves up as experts in such matters. It is gratifying to see, however, that our bail provisions up to now have been far more liberal than those provided for in the definitive European Convention on Human Rights and that the changes proposed at the moment go no further than that document envisages for the population of Europe. Let the Minister immediately assure the population of this country that what this House envisages goes no further than reasonable people would consider reasonable, and that the expedition into change in the matter of bail will not give the person in the street any cause for concern.

Bail is a necessity only for those who have been charged with a crime and many so charged still will not and cannot have their bail opposed by the State. However, the hands of the State and the Garda should not be automatically tied by the ludicrous bail ruling which we have endured since 1965. It will, in time, be a source of mystery to historians why this situation was allowed to exist for three of the most troubled decades we have endured in our short history. Refusal of bail should be available in the case of those who pose an ongoing threat to our society because of their aspirations, lifestyle, their perceived intentions, or their habits. Where it can be reasonably established that they are an ongoing threat, bail must, for the sake of our society, be denied.

If we have at last extracted a commitment from the Minister to attempt to curb the availability of bail for the criminal or alleged criminal, then we must also ask her to outline her plans to deal with the inevitable rise in the prison population. Will she make provision for better and more humane accommodation? Will she provide more appropriate accommodation for the many prisoners at present in detention? Will she further provide for a speedier system of justice, which will keep prisoners on remand, incarcerated for only the minimum time before their trial? Will she uphold the principle that justice delayed is justice denied?

I realise that she went some of the way recently with the appointment of more judges, but that is not enough. The back-up resources in the form of personnel and funds must also be provided. Proper buildings must be made available and Garda numbers increased to provide for faster investigation and detection of crimes. The people need to be reassured and this proposal today is only part of that reassurance. We cannot always depend on increasing prison space to solve our criminal justice problem. It must also be approached from the point of view of keeping people behind bars for the shortest desirable time and of steering them off the criminal path before they get enmeshed in crime.

The best way to deal with a potential criminal is to see that he does not become one and the process must start early in life. That means providing the social services necessary in the areas most at risk, implementing youth and social programmes in areas where we know there will be problems in the future. In short, the Minister must invest now in the children who will be the adults, and who may be the criminals, of the future. We are assured that the Minister for Finance is awash with money at the moment and his greatest problem is to decide to whom to give it.

Let me make a few suggestions. He might give some to our primary and secondary schools which are struggling to stay afloat. School boards, principals, staff and parents' councils are hustling for money to pay for oil for heating, to paint schoolrooms whose colour has changed only by fading in the sunlight of 30 years and whose classrooms are devoid of even basic teaching aids. He might invest some of his riches in remedial teachers who are denied to the most needy of areas for the flimsiest reasons. These teachers could make an investment in our children and the wider society, which will be reaped a hundredfold in ten years' time. Can we afford to wait to see the mistakes we are making now?

He might consider investing in those voluntary agencies who are dealing with the results of failed or non-existent drug-policies of this Government. He might like to support those at the forefront of the fight against drugs in our cities and towns and recover the initiative from organisations whose motives are, to say the least, suspect.

He might substitute some of his ready riches for the money he plunders from the coffers of the national lottery at present. That money was intended to provide funds for sport, voluntary social services and the arts, and successive Governments have shamelessly robbed the young and disadvantaged of their rights from this fund. Dipping in to the lottery is akin to stealing from the child's money-box, from the alms-box of the poor or from the collection tin of the leper. Now that the Minister for Finance has discretionary money available, it is incumbent on him to give it to the people who are looking after the social needs of our most disadvantaged.

Withholding bail cannot be our only response to crime problems. We must be more positive and proactive than that. If we are to discharge our function in this House we must consider the social problems and start to deal with them now. It is as simple as this: if we educate our children properly and given them the facilities and a proper infrastructure for healthy pursuits in their leisure time, we can at least reduce the number who will turn to crime. There will be fewer people to whom we will have to refuse bail and fewer will fall foul of the law. That has been proven in many inner cities elsewhere and we must learn from them. Without that commitment and investment, what we do here today will be merely a holding operation.

This is only one of a number of measures crying out for implementation if we are to realistically address the rise in serious crime. We need to examine ways of keeping children from roaming our streets in the small hours of the morning, making parents more responsible and accountable for their children's actions and keeping track of people on temporary release from prison or on bail. I am talking about electronic tagging and, while I accept this is still in its infancy, I do not see any reason we should not at least examine the system closely.

Last May I called on the Minister to consider setting up a databank of DNA samples which would be immediately available in the investigation of serious assault, rape and murder and which would solve some of those crimes almost instantly. I know this suggestion will horrify civil liberties groups, but I am more interested in the civil liberties of innocent people than of those who commit serious crimes and evade detection because we stubbornly refuse to avail of the advances in modern science. If some people had their way we would not yet use fingerprinting techniques. However, they would quickly change their minds if they or their families became victims of thugs and criminals. We must be realistic and serve the people we represent.

There is no trauma in giving a DNA sample which can be easily taken from blood, saliva and so on. I am professionally assured it is possible to take a DNA sample at birth without any risk to babies. The proof of its acceptability by the public and their understanding of its necessity is evident in the percentage of people who readily co-operate with the police. There is a perception that genetic fingerprinting has more uses and advantages than drawbacks and that not all cases in which the system is used are ones of murder, rape and assault. Sometimes DNA sampling is used merely to identify conclusively the parentage of a child. The successful prosecution of the X case depended on the availability of a DNA sample.

We must be realistic in our fight against crime. The denial of bail in some circumstances is a necessary part of that fight as is a necessary curbing of individual freedom. I do not have any difficulty with that. All my instincts and soundings tell me the people do not have any difficulty with that either and we would be negligent not to do what is proposed. I have no doubt the people will formally approve the proposal in the referendum.

Mr. Finucane

I wish to share my time with Deputies Frances Fitzgerald and Charles Flanagan.

Acting Chairman (Mr. T. Foxe)

Is that agreed? Agreed.

Mr. Finucane

I compliment the Minister on going ahead with the referendum on bail. The day she was appointed Minister for Justice she announced it was her intention to hold such a referendum. People had reservations about whether that was the right way to proceed but she persisted and has now achieved her objective. I am sure the people will approve the changes she is proposing to make because they are conscious of what is happening in the criminal world.

Many changes have taken place in our society in recent years. Ten years ago we did not talk as much about the drugs problem but it is now of paramount importance that we take action to curb the evil use of drugs. One cannot be more focused on the necessity to make changes in the bail laws than when we read about a noted drugs criminal in the Dublin area who committed a succession of crimes while out on bail. For many people that exposed the hypocrisy of the current position where a person can get bail and commit further crimes while out on bail.

The proposed measures clearly set out the cases in which bail will apply. That is desirable. Another issue to which the Minister has responded is the necessity for a bailsman to put the money up front. The current position is that if a person goes bail for an individual he is not required to lodge the bail money. The Minister inherited the neglect of previous Administrations with regard to our criminal justice system and the absence of legislation. She has responded magnificently since her appointment as Minister for Justice and a great deal of legislation has been passed by this House.

The main watershed in focusing our minds on crime was the murders of Detective Garda Jerry McCabe in my constituency of Limerick West, and of Veronica Guerin which has been referred to here on many occasions.

As reported in the media the gardaí appear to be much more proactive in their fight against crime and have made many advances, particularly with regard to the murder of Veronica Guerin and the evidence they have collected in the Dublin area. They appear to be tackling the problems of illegal handguns and the laundering of drug money. I compliment the gardaí on their success in that regard and urge them to continue with this proactive approach.

I compliment also Chief Superintendent Michael Fitzgerald and the Garda authorities in my constituency, who experienced the trauma of having one of their members murdered, on their efforts to apprehend the people responsible for that crime. A criminal gang has operated, almost with impunity, in the same area for a long period and its members are suspected of carrying out raids on banks and post offices. The current investigations will I hope root out the criminals who have operated in the west Limerick-north Kerry area.

I wish the Minister well and the people who are critical of her proposals with regard to the prison system should recognise the tremendous advances being made in providing more prison spaces for criminals. I have no doubt there will be a positive response from the people when this proposal is put to them in the referendum.

Ms F. Fitzgerald

I welcome the opportunity to speak in the debate on the bail referendum which is clearly part of a package to tackle crime and must be seen as such. It is a balanced response to a difficult problem. Ireland has not updated its laws on bail as other European countries have done and as highlighted by the report of the Law Reform Commission. It is interesting that we are more lax where bail is concerned. That has fuelled public concern about crimes committed by people out on bail, particularly hardened criminals.

I welcome the detailed changes to the law the Minister intends to introduce in addition to putting the amendment to the people. This is the only part of the package against crime that will be put to the people in a detailed way. I hope people will follow the debate and use their vote and that we will have a good discussion on it because it is important that the people are well informed.

In proposing a change like this, we also have to take into account that one of the factors leading to the need for it is the growing drugs problem. Huge numbers of people in our prisons are drug addicts. As those of us who represent Dublin constituencies know, addicts out on bail or who are out having served a prison sentence get into a spiral where they are continually committing offences to get enough money on a daily basis to feed their habit. The bail referendum is just part of a package to tackle crime and must include tackling the drugs problem in a realistic and proactive way. I welcome the fact that treatment will be more readily available next year, because I am not satisfied with the length of time addicts have to wait for treatment at present. The waiting lists are far too long and that certainly feeds escalating crime and muggings in the Dublin area which need to be tackled.

The Opposition parties should be generous in their response to the Minister's proposals. For 30 years this problem has been talked about, but nobody has tackled it. The Minister has tackled it consistently in recent months and is now putting this referendum to the people.

We must also look at other elements of the package. The criminal justice system and the courts system have been in need of reform for many years, and there has been a very proactive approach to this by this Government and by the Minister for Justice, Deputy Owen, in particular. Her term as Minister for Justice will go down as a reforming period in the courts and prison systems. It should also be acknowledged that this Government has taken a more proactive approach to the question of prison spaces, and the prison building programme is the most proactive in the history of the State.

In relation to the proposed referendum I wish to mention two issues. One is the role of victims in the criminal justice system. We have to get more of a balance between the rights of victims and those of the accused. This bail referendum will help in that regard. As a woman who has observed the criminal justice system and women's experience of it over many years, I know that there has been great dissatisfaction on the part of victims with their experience within the system. They feel it has not been sensitive enough to their needs. There is even more work to be done on that in the years ahead.

I want to comment also on the question of the rights of the accused. As we extend detention to seven days, which we must do, given the organised nature of criminal activity and because of the drugs problem, we must continue to be vigilant about the rights of the accused and the possibility of miscarriages of justice. We must look at the videotaping of interviews and make sure the highest standards apply. It is important in a modern democracy to get this balance right. I believe we will, but we need to be vigorous and continuously monitor this aspect as well.

The package will have to include continuing and more developed liaison between local communities and the Garda Síochána. There has been growing frustration, but it is important to take note of a report issued recently by the Merchant's Quay drugs project in my area, which stated that some of the vigilante activity is focusing on addicts, needy people themselves, who are being made scapegoats while the more organised criminals behind them are not dealt with. I have heard consistently from constituents that they cannot understand why drug trading has gone on uninterrupted in many of their communities to date. I have nothing but praise for the efforts of many local liaison gardaí in communities where they have developed strong relationships with the community, as is the case in parts of my own constituency. That must be developed and clearly needs to work much better in other areas.

The bail referendum is one part of a package which has many aspects but it is, nevertheless, an essential part.

Mr. Flanagan

There has been much debate in this House in recent months on the issue of bail, much of it fuelled by the expert report of the Law Reform Commission which was published last year, following which the Minister for Justice stated that she would move towards changing the law. It has been cited by those against the proposed changes that the Law Reform Commission report did not call for a referendum or for the type of legislation envisaged by the Minister for Justice, if the referendum is carried. However, that is not the full story. It is important that in the context of the Law Reform Commission's report there should be a reference to its analysis on the law of bail. Significantly, the Law Reform Commission stated categorically that by international standards Ireland has the lowest number of remand prisoners and remains the only jurisdiction in western Europe that has not introduced comprehensive bail legislation in recent years. Throughout the Law Reform Commission report there are references to the fact that the grounds for refusing bail under our bail regime are unduly restrictive, while it has been argued by people opposed to change that few crimes are committed by people who are out on bail and that, therefore, there is no real need to change the law. I am not in a position to argue with the figures put forward by the Law Reform Commission, and I venture to suggest that few people are. They state that in 1993 27 per cent, just over a quarter, of detected armed robberies in this State were committed by persons out on bail. That is a high figure which underlines the need for legislation to tighten up our bail regime. The vast majority of law-abiding citizens within the State are calling for change. The Garda Síochána, through its various associations, is calling for change. The Director of Public Prosecutions is on record as stating that the balance of our criminal law is not weighted in favour of the citizen. That requires change, and that is exactly what the legislation, consequent on the passing of the referendum, will allow for.

When we last discussed this matter, in the context of Deputy O'Donoghue's Private Members' Bill last year, I stated I had two major reservations about changing the bail regime. There was first the inordinate delay between the time of arrest, charge and caution and the time of trial, the absence of a remand centre and the overall prison regime under which simply to remand people on bail we had to release convicts from prison. This did not do anything to ensure confidence in the criminal justice system. It is important to address the matters of prison spaces and delay. Since the debate on bail more than a year ago there has been considerable progress in reducing delays in criminal trials. It is important that the Government aims for an acceptable target known to people. For example, three months in most cases is sufficient time to allow the State to gather evidence with a view to holding the trial.

This year alone 17 or 18 judges have been appointed and for the first time ever the criminal courts in Dublin and throughout the country sat in early September. This should increase the level of efficiency, and it is important in the context of any legislation we might introduce to remand more persons than are being remanded at present.

I am pleased to hear from the Minister of State, Deputy Hugh Coveney, who has been given special responsibility by the Government in the area of prison building, that the 400 place remand centre at Wheatfield is ahead of target. I recall the fuss created by Deputy Harney and others when the Government's prison building programme was announced. She said it would be well into the next century before we would have that 400 place remand unit in Wheatfield. My understanding is that it will be completed in 1998.

Ultimately any reduction in the numbers of persons out on bail or any increase in the numbers of persons who will be remanded prior to trial, will be a matter for the courts. The courts will measure each bail application before a judge makes a decision. It will not be written in stone, and rightly so.

I urge every citizen to become informed. I fear that much of the debate is clouded by academic and technical arguments to the detriment of citizens. I hope we have an interesting campaign, and there is no complacency because most of the 166 Deputies in the House support the referendum. However, we will have the fundamental pillar of the democratic process — the vote of the people. I look forward to a large turn out.

Mr. Dempsey

I welcome the Bill and bemoan the fact that it is 13 months after the action should have been taken. I am sure my colleague, Deputy Kenneally, will forgive me if I differ slightly from his criticism regarding the delay on the Bill. I would not hold the Minister for Justice responsible for this delay. Even when Fianna Fáil put forward its proposal on bail she would have been happy either to accept that Bill, as she did in the case of the Criminal Assets Bureau Bill, or a similar one, had she been allowed by other elements in the Cabinet, notably Democratic Left and the Labour Party. I am always amused to listen to the history lessons from Deputy Eric Byrne. He starts every debate by reciting a litany of ills in society, all of which can be laid firmly at the door of Fianna Fáil. I would not like to dwell too deeply on Deputy Byrne's background or that of his former party or parties. It is probable that he has contributed much more to the woes and ills of this country than Fianna Fáil ever did. Deputy Costello who was playing the same tune should not forget that during the past 20 odd years his party has been in power as long as Fianna Fáil.

Mr. McGahon

Collective responsibility.

Mr. Dempsey

We will accept Deputy McGahon's suggestion of collective responsibility. I will not point the finger except to say that when Deputy O'Donoghue introduced his Bill 13 months ago it would have been accepted if Democratic Left and the Labour Party were not in Government. My experience of the Labour Party in Government is that it reacts to a headline in The Irish Times. The unfortunate headlines in The Irish Times following the deaths of Garda McCabe and Veronica Guerin certainly changed its suit in relation to civil liberties and it realised what most of us on this side and quite a number in the Fine Gael Party realised 15 or 18 months previously.

Mr. Flanagan

I thought the Deputy was going to reserve his comments for the Labour Party and the Old Bailey.

Mr. Dempsey

The Deputy will have every opportunity to read that next week, if that arises. It is necessary to criticise these people in the House. We talked about untouchables before. We in this House should not regard anybody as untouchable. I do not want to introduce a note of acrimony to this debate but certain things have to be said. I strongly believe Democratic Left and the Labour Party have much to answer for in the delay which ensued in relation to reforming the bail laws. I make no apologies to anybody for saying that.

My main concern is to inquire of the Government what exactly it intends to do in providing information to allow the public make a fair and honest decision regarding the proposal to change the Constitution. I pose that question having regard to the judgment in the McKenna case. On a number of occasions on the Order of Business I asked the Taoiseach what action the Government proposes to take in this referendum on foot of the McKenna judgment and I have not got a satisfactory answer. Will the Minister tell the people how the Government intends to conduct this referendum campaign? As Deputy Flanagan rightly said, it is probable that the 166 Deputies in the House support what the Government is doing on this occasion.

However, I hope it does not adopt the line that because everyone in the House agrees with the amendment other people should not be facilitated in putting forward their case. Some legitimate concerns have been raised by Deputies and people outside the House, but the rights of victims should take precedence. I fully support the amendment and will do everything in my power to ensure it is passed. However, as a democrat I believe people who oppose the amendment for genuine reasons should equally be able to put their case so that the public can make a reasoned and fair decision. It is imperative that the Government lets us know immediately how it will ensure fair and impartial information is provided to the public. I have no doubt about the decision which will be made but I want to know how the information will be put before the people.

This is the first referendum since the judgment in the McKenna case — it is the first referendum to which the judgment must be applied — and what the Government does on this occasion will lay down a marker for all future referenda, on which there may not be unanimous agreement in the House. The Government should move immediately on this issue and either bring forward its Bill or accept the Fianna Fáil Bill on the setting up of an independent referendum commission. No Deputy wants a constitutional action to be taken after the passing of the referendum or for this measure to be struck down because the Government is perceived to be acting illegally. The only way this can be avoided is by setting up an independent referendum commission. Fianna Fáil proposes that the commission should consist of proven independent people and, in this context, reference is made to the Clerks of the Dáil and Seanad, the Ombudsman, the Comptroller and Auditor General and the President of the Law Reform Commission plus two other suitably qualified people, for example, a person on either side of the argument — there are legal people on both sides. This commission should be given responsibility for putting forward fair and impartial information on the implications of this amendment in the context of the freedoms we enjoy under the Constitution.

If Fianna Fáil was in Government I have no doubt the Opposition would demand such a commission and would refer to transparency, accountability, etc. The Government must ensure there is no cloud hanging over this referendum or no doubt about its constitutionality. The only way to ensure this is by setting up an independent referendum commission. The personnel to whom I referred are not civil servants and do not work at the behest of the Government; rather they are servants of the State and act independently. They have shown their independence from Government at all times and will continue to act independently of it. The Fianna Fáil proposal is eminently suitable and constitutional. It will address the judgement in the McKenna case, remove any doubts about the constitutionality of the referendum and ensure that fair and unbiased information is given to the public. I appeal to the Government to set up this commission immediately and to either accept the Fianna Fáil Bill or introduce a similar Bill. Anything less will be seen by the public and, possibly, the courts as unconstitutional. I am interested in hearing the Minister's response to this proposal.

Deputy Flanagan said extra prison places are being provided. I am concerned that after the enactment of the legislation we may not have sufficient places for people on remand. I acknowledge that extra places have been, and are being, provided but I am concerned that convicted criminals will be let out of prison to free up places for people on remand who have not been convicted. The Government should consider setting up a separate centre for people on remand so that places are available. Will a person who is remanded without bail for four months or longer and found not guilty at the end of that time be entitled to sue the State? This question has probably exercised the minds of constitutional lawyers and I would like an answer to it.

I welcome the Bill. I am glad the public will have an opportunity to express their views on this matter by way of referendum. I appeal to the Government to ensure there is no doubt about the constitutionality of the referendum or anything done during the course of it. I ask it to accept the Fianna Fáil Bill on setting up an independent referendum commission or to bring forward legislation to meet our concerns in this regard.

Mr. McGahon

I wish to share my time with Deputy Derek McDowell.

Acting Chairman

That is satisfactory.

Mr. McGahon

I congratulate Deputy Dempsey on his very reasoned speech; I have always admired his contributions to debates. We experienced a difficulty one time at the Committee of Public Accounts but he has matured since then and has put forward a reasoned suggestion to the Minister. As an independent-minded Deputy, I would like to see more consensus in the House instead of the ridiculous nonsense which passes for business. I do not attend the farcical Order of Business, the likes of which would not be seen at Billingsgate fish market. The Order of Business is a joke and no commercial business could be run on a similar basis.

We should put the Civil War and the variations of that theme behind us and seek consensus on issues on which, as Deputy Dempsey said, 166 Deputies agree. On Deputy Dempsey's fears about the necessity for a fool-proof result from the referendum, the parties in Government should consult with Fianna Fáil and the poor dears, the Progressive Democrats, to reach consensus. The nonsense of who did or did not do something has reached laughable extremes, but I will not go down that road. Suffice to say the Fianna Fáil suggestion that the unfortunate Minister, Deputy Owen, invented crime is ludicrous. Crime has been endemic in society for many years. Cancer does not appear overnight, it is many years agrowing, and we must take collective responsibility for the shambles Irish society is in today. In the last 30 or 40 years Deputies have sat on their backsides while crime bosses built up empires. There are no economic problems at present. In addition to the nixer industry, we have created a social welfare paradise.

In every county, certainly in this city, there is fear of crime. As people approach old age the need for security increases. Cases are reported of elderly people in Dublin who lock themselves into their apartments on winter evenings at 4 o'clock. That illustrates the extent of fear. We are grappling with the recent problem of drugs, which frightens every responsible parent. There are many more serious problems than drugs such as alcoholism, which kills many people and leaves families deprived. That problem has not been addressed in an honest manner by this Assembly. It is easier to target and curtail the cigarette industry. Seductive bullshit advertising of alcohol is offered to the children of the nation every ten minutes on television, with the consequence that hundreds of children aged 15, 16, 17 and 18 years are bringing children into the world for flyaway fathers. That is part of the overall problem.

This debate is set against ever-increasing crime. By Irish standards, murder is rampant. Last year 41 people were murdered. Hundreds of people are raped, but in many cases it is not reported because of the shame attached to it. Armed robbery is common. Virtually every shop in my town, which is probably no different from any other, has a barricade over the window at night and the doors are also barricaded. Some robberies in the main street in Dundalk have been effected through the roof. This is because of the ineffectiveness or lack of police presence. Governments have been complacent about crime, which is the biggest source of public irritation. The certainty is that this referendum will be carried by an overwhelming majority. Only the offbeat clients, civil libertarians, will write aggrieved letters to The Irish Times.

The question must be faced of whether we as politicians or judges and the courts system make the laws. The bail system did not evolve from laws enacted here, although we stood idly by. It was decided upon by judges who allowed people out on bail while charged with heinous crimes. I am concerned, as is the average person in the street who does not get his knickers in a twist about points of law, as people in the law business do, that people charged with grievous crimes of murder and rape, horrendous crimes which have been downgraded by the legal profession and politicians who stood idly by and allowed such a system to prevail, are allowed out on bail. People accused of murder, rape and savage battery or assault, where the evidence is supported by the local superintendent, should not be allowed out on bail. Regardless of the strand of society from which the person comes, he should be held in custody until he is convicted or released by a court. That is what the people want. They do not want fancy lawyers nit-picking about points of law. They want simple decisions. Anybody who has listened to or read reports of court cases in recent years will be aware of the totally inappropriate sentences handed down by most judges because of the liberal ethos that has gathered apace.

Another farcical practice for which blame must lie with the judicial system and the legal profession is the right to silence. What person accused of serious crime should have the right to silence? It should be mandatory on everyone of us to explain where we were at a particular time. If the finger is pointed at a person, he should be required to give an explanation, and if he refuses to give a rational explanation or even to speak, it should be held against him as evidence of guilt. The farcical right to silence was not conceived in Leinster House; it was conceived by clever barristers paid grotesque amounts of money to ply their trade. That has resulted in the scales of justice being tilted against the victim. It is time the judicial system and politicians wished up to the fact that people are frightened not only of drug barons but of local vandals, families in every town who pay recurring visits to jail. Statistics prove that recidivism is rampant. About 85 per cent of offending criminals are recidivists, which illustrates that the system is not working.

Radical and draconian measures must be introduced to deal with the problem. The Garda Síochána needs to be overhauled. In the same way as sub-post offices have been closed, in my county Garda barracks in Collon, Blackrock and Castlebellingham are locked at 8 o'clock at night. One hundred years ago when the British were here and there was no crime they were open all night. We now have police and Civil Service lines when the animals are out at night.

There was a riot recently on a Saturday night in a disco in Ardee — another hell hole — when a young man was severely assaulted. He was struck by two assailants while lying strapped in an ambulance. The police in Navan, almost 30 miles away, were called but they did not take a statement in the hospital until the following Monday afternoon.

The system under which police barracks are closed at 8 p.m. is crazy. We have part time policing and a Civil Service mentality but that is a separate issue.

There is a need for every party in the House to support unambiguously and welcome the amendment, to stop nit picking and to get behind the Government which I encourage to consider Deputy Dempsey's reasonable suggestion of an independent commission. If necessary, it should speak to Fianna Fáil — there are many good legal brains on the far side of the House — to reach a consensus so that the amendment will not be challenged. That is the way forward. We should not engage in mock battles but seek greater consensus in producing legislation.

Mr. D. McDowell

I support the amendment which I sincerely hope will be agreed but I cannot allow the opportunity pass without reflecting on the comments of Deputies McGahon and Dempsey. I support civil liberties and make no apology for doing so. Deputy McGahon and President Bill Clinton may have difficulty with the "L"word but I do not, I proudly consider myself to be a liberal. Perhaps Deputy McGahon should speak to his colleague, the Minister of State, Deputy Currie, about the issue and perhaps we should reflect on how quickly we take our civil liberties for granted. We are exercising in this House the liberty to speak and represent the people. We should not take them for granted.

I deny the snide suggestion, made continuously from the Fianna Fáil benches in particular, that in some sense the Labour Party has been sitting on its hands and refusing to grasp an obvious solution to our crime problems, nothing could be further from the truth. My colleagues and I represent constituencies in this city where there is a serious crime problem with the attendant serious social problems. There is also a major drugs problem.

I deny any notion or suggestion that we are soft on the perpetrators of crime, the contrary is the case. This does not mean that we do not support due process or the right of an accused person to a fair trial because we do. I support the entitlement of an accused person, however heinous the crime of which they are accused, to proper representation in court and the notion that people accused of crimes are innocent until proven guilty in a proper court of law by their peers. This has been a tenet of our legal system for many centuries, although it is not adhered to in every jurisdiction. There are jurisdictions where the onus of proof has been reversed, where it is up to an accused person to prove they are innocent. I would resist any suggestion that we should move towards such a system here.

We should ask ourselves what the refusal of bail means. It means that somebody not convicted of any crime remains in jail. There are many well established democracies in Europe, including Italy, France and Spain, where a large percentage of those in jail have not been convicted of any crime but are on remand. We should be very slow to go down that road.

As other speakers mentioned, this brings up the issue of prison accommodation. The Minister for Justice has obtained the Government's approval to provide additional prison places over the next year for which I commend her but, as we all know, this is not enough. If the amendment is passed, as I believe it will, it will not be enough in the changed circumstances. We would then be in the bizarre situation where remand prisoners would be denied temporary release and kept in jail while people convicted of crimes would be released to make places available for them.

I have suggested in the past that the system of temporary release is legally dubious. It amounts, in effect, to an arm of the Executive, the governor of Mountjoy Prison, overturning a decision of the Judiciary taken in some cases only 24 to 48 hours earlier. This will not stand up to challenge. It is a system we simply cannot stand over in this House. It saps public confidence and the morale of those involved in the legal system, be they gardaí or judges.

I support the amendment as there are circumstances — I said this 13 months ago when Fianna Fáil introduced its Bill — in which we cannot in conscience allow an accused person out on the streets. It stands to reason that if somebody with a serious drug addiction is accused of a crime in court, in all likelihood that person will not be able to sustain that dependency without committing further crime immediately. It would be irresponsible in the extreme to allow circumstances where that person had an automatic constitutional right to bail. If for no other reason, I support the amendment to prevent this from happening as it does daily in our courts.

It is important to look at the amendment in conjunction with the other measures introduced by the Minister. The measure she announced of a four months review is an important one. The delays in the courts are unacceptable. It is unacceptable that somebody accused of a serious crime will not appear in court for several years.

This is bad from the point of view of the prisoner on remand in jail for a crime of which they have not been convicted. It is also extremely bad from the point of view of witnesses and the victim. It is not good for the system as inevitably over time the memory of witnesses fades and evidence becomes less good. The delays in the system, therefore, have to be eradicated. I welcome the moves made by the Minister in appointing new judges and lengthening the legal term but that is only the start of the process.

It is important that an application for bail should not become a pre-trial, that somebody should not be tried when the application for bail is made. The Minister introduced safeguards to ensure that this will not happen but I suspect the greatest safeguard is the training and disposition of judges.

I support the amendment, which is properly balanced. It provides safeguards on which those who believe in civil liberties will insist but it will also get at those people accused of serious crimes who should not be out on bail.

Mr. Deasy

I welcome the opportunity to discuss this matter. I fully support the measure being taken by the Minister and the Government. The Minister is to be congratulated. When the referendum is passed, not only will the public, who feel unprotected because of the liberal bail laws, breathe a sigh of relief, so also will the Garda Síochána and the law enforcement agencies which have had to put up with the sight of people walking out of court and laughing in their faces after getting bail on serious charges. It will redress the balance in favour of the Garda, which is what we want. Our laws are too liberal. However, the liberal agenda has backfired in this country and has caused untold suffering to the citizens who are the victims. Legislation has favoured the criminal and the O'Callaghan decision in 1965 caused untold misery.

For the past year or 18 months it has been almost impossible to live in an estate in my home town of Dungarvan because of thuggery. The chief protagonist assaulted people at will. He was then brought to court and remanded on bail. However, he continued to assault people. He was charged with causing grievous bodily harm, but he walked free from the court because he had so terrorised the people when out on bail that they were afraid to give evidence against him. Something serious must be done when law and order breaks down. This referendum will help to redress that situation because we cannot allow lawlessness to continue.

This is one of the most important measures the Minister has taken in the fight against crime. People living in estates and complexes are terrified. I met three different families from the estate I mentioned over the weekend and they pleaded with me to rehouse them. This shows the magnitude of the problem in a provincial town, not in Dublin inner city. People say they will rehouse drug dealers and thugs. Where will they be rehoused? Such a solution only moves the problem from one place to another. Reforming the bail laws will help because it will make these people realise that they cannot terrorise people and then walk free from court laughing in the face of the Garda Síochána.

It is time to tilt the balance of the law in favour of the public and the victims and this measure will help to do that. We must take the thugs off the streets. This referendum will be carried by a huge majority as the people cannot wait to get into the polling booths to cast their votes in favour of this change.

I wish to share my time with Deputy Nealon.

Acting Chairman (Mr. Leonard)

Is that agreed? Agreed.

Mr. Nealon

One thing we do not want when the people have cast their votes is a court challenge to this legislation. We have been lax in this regard in the past, so we should be more careful. There will be widespread — perhaps even unanimous — support in the House for this measure which will be reflected throughout the country at the end of November.

I come from a constituency where a person was badly beaten up by someone on bail. I have no doubt what the reaction will be in that neighbourhood. There is no reason it should not be possible to refuse bail 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". That means someone will be sent to prison without being convicted of the crime. That is the kernel of the argument made by those who oppose this change. There is a daily record of crimes committed by people on bail. The fact they will appear in court at a later stage is an incentive to commit further crime because the offences will be dealt with together and the sentence will not be increased by much. This action is the minimum required to solve this problem.

It is disturbing to read about Irish citizens in other European countries who are held for a long time without getting their day in court. We should ensure that when this referendum is passed, as it will be, there will be no delays in the court system. Great efforts are being made in this regard and extra judges have been appointed, some of whom are doing excellent work to clear backlogs. It is essential that there are no delays when this new system is introduced. The Minister has made considerable efforts to extend the number of places in our prisons. If we want to introduce change, we must introduce parallel measures to ensure there are minimum delays in the courts.

Minister of State at the Department of Justice (Mr. Currie)

I thank Deputies for their broad welcome for this Bill. Some Opposition Deputies took the opportunity to criticise what they described as delays in bringing this matter forward. The important thing now is for all sides of the House to unite in explaining to the people why the proposed amendment is desirable. As regards the alleged delays, I repeat what the Minister for Justice said last night. Successive Governments have grappled with the issue of bail for the past 30 years and this is the first Government to have brought forward effective proposals to deal with the matter.

While accepting the Bill in principle, some Deputies — Deputy O'Malley in particular — raised questions about the effectiveness of the wording of the amendment. These were legitimate questions, but I assure the House that these issues were already considered in detail during the preparation of the wording. Deputy O'Malley's main concern was that the standard of proof required might be so high that the referendum will only affect what he described as marginal cases. In devising an amendment, the Government was conscious that an appropriate balance had to be struck. On the one hand, it is undesirable to bring about a regime where bail is refused in relation to the commission of minor offences. On the other hand, it would be pointless to introduce a burden of proof which would mean that the new bail regime would rarely be invoked for serious offences. The Government examined a wide range of formulae before deciding the wording before the House. In the end, it opted for a formula which closely follows the provisions of Article 5.1 of the European Convention on Human Rights. The Government believes the test involved to be a reasonable one, but it also has the great advantage of sticking so closely to the wording contained in the convention, it would be likely to withstand any challenge which might be made to it in the European Court of Human Rights.

Deputy O'Malley made the point that the Government had so far only explained its case for the proposed amendment by reference to the legislation which it would introduce if the amendment is passed. I do not believe this to be the full picture, but it is the case that it is the wording of the amendment which the courts will primarily have regard to. The reason the Government made available the proposed outline is to help inform public debate. It should also be borne in mind that, while the wording of the amendment enshrines the fundamental test relating to bail, which is that refusal is reasonably considered necessary to prevent the commission of a serious offence, it allows provision to be made by law to that end. The outline which has been made available sets out the criteria to which the courts should have regard and no case has been made which suggests the courts would take the view that those criteria are not relevant to the question of reoffending. The legislation also makes it clear that a court, in deciding whether bail should be refused, does not have to conclude that a specific offence will be committed. Again, no case has been made that this would transcend the power to make laws which will be enshrined in the amendment. I do not believe there will be any question of a court needing evidence that a specific crime will be committed if a person is to be refused bail. Instead, a court, on the basis of the criteria set out in the legislation, will, to a large extent, make its decision in the light of a person's previous record.

Deputy Dempsey inquired what the Government will do to ensure proper provision of information to the people and its approach to the McKenna judgment. The Government is precluded by the judgment from the expenditure of public moneys to campaign for a particular outcome to the referendum. The Government will obviously comply with this. The Minister for Justice announced yesterday that it is proposed to set up an ad hoc commission to provide the public with impartial information on the issues involved. The Minister for the Environment will announce details of this shortly and I believe this will go a long way to meet the concerns Deputy Dempsey and others raised.

While appreciating the points made during the debate, the Government remains satisfied that what is proposed is a workable and balanced approach. Other issues raised during the debate have already been dealt with in the Minister's opening contribution. We now face a public debate on the bail referendum. Many of the issues mentioned during the debate in this House will no doubt be reflected in that public debate. I am sure that all sides of the House will contribute to the public debate in an effort to convince the people of the merits of what is proposed. Again, I thank all Deputies for their generally constructive contributions.

Cuireadh agus aontaíodh an cheist.

Question put and agreed to.