Criminal Justice (No. 2) Bill, 1997 [ Seanad ]: Second Stage.

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

This Bill clearly represents major criminal law reform. I have been heartened since its introduction by the high level of public support for the measures in it. Under its main provisions persons trafficking in drugs to the value of £10,000 or more will face mandatory minimum sentences of ten years; trials will take place more quickly through the abolition of preliminary examinations; courts will automatically initiate an inquiry into the assets of people convicted of drug trafficking offences with a view to confiscating those assets; the Garda will have to spend less time in court through extending the type of evidence which can be given by certificate; and, the rules relating to a court taking into account guilty pleas are being placed on a clear statutory basis.

While this Bill forms only part of a major programme of criminal law reform being undertaken by this Government, it is, nevertheless, clear practical evidence of the Government's policy of zero tolerance towards crime, particularly, but not exclusively, drug trafficking. The Bill contains a series of strong measures which are, regrettably, necessary as a response to those who inflict such harm on our community.

I do not pretend that the answer to our community's drug problem lies exclusively in criminal justice measures. Demand reduction, particularly in the context of social exclusion, must be addressed. The Government recognises this as a priority and is taking action on a wide range of fronts. However, as Minister for Justice, Equality and Law Reform, I have particular responsibility in relation to the supply side of the drugs problem and it is incumbent on me to bring forward measures which will disrupt, to the greatest extent possible, those who engage in the deadly trade of drug trafficking.

I wish to make some general comments on the main provisions of the Bill before going into more detail about the sections. I first wish to mention one issue not included in the Bill as drafted but which I hope to address by way of amendment on Committee Stage.

The House will be aware that the report of the steering group on the efficiency and effectiveness of the Garda Síochána contained a number of recommendations for changes in our criminal law, some of which would be fundamental. The group recognised in its report that there would be a need for an assessment of the constitutional and European Convention on Human Rights implications of their proposals. In this context, earlier this year I established an expert group to examine the recommendations for criminal law reform contained in the Garda SMI report. The group has made significant progress and I hope to have its final report at the end of this month. It will form the basis for the preparation of a new major Criminal Justice Bill.

It was represented to me that one recommendation of the SMI group needed to be dealt with as a matter of urgency and, if at all possible, in the Bill before the House. The recommendation related to the need for a procedure whereby a person in custody on remand or serving a sentence can be arrested or detained and the crime investigated as if he or she were not already in custody. I asked the expert group to look at this recommendation first and it has given me its proposals for change to address this issue. I hope to move an amendment on Committee State which will give effect to the group's proposals.

The Bill amends the Misuse of Drugs Act, 1977, through the addition of a new offence of possession of drugs with a value of £10,000 or more with intent to supply. It provides for a minimum penalty of ten years' imprisonment to be imposed where a person is convicted of the offence. This will apply automatically subject to certain limited exceptions relating to the interests of justice. A court will be able to take into account, for example, the fact that a person pleaded guilty or materially assisted the Garda Síochána in the investigation of the offence.

While the normal statutory remission will apply to persons sentenced for the new offence, the Bill prohibits granting temporary release except for grave humanitarian reasons and any such release can only be for the limited duration necessitated by those reasons. Where the court is satisfied that a person convicted of the offence was addicted to drugs and that addiction was a substantial factor in the commission of the offence, it may list the sentence for review after not less than half the sentence has been served.

At present, subject to certain exceptions, a person facing trial on indictment has a right to a preliminary examination in the District Court, although the accused can waive that right. At the preliminary examination stage the District Court can decide that the accused has no case to answer, although in practice this rarely happens. The procedures surrounding preliminary examinations can be cumbersome, particularly when depositions have to be taken from witnesses.

I am concerned that in some cases the procedure might be used as no more than a delaying tactic by people charged with serious offences. While preliminary examinations have existed in one form or another since the 17th century, developments in the law and practice have undermined the rationale behind them. In particular, the fact that a person cannot be tried on indictment without the involvement of the Director of Public Prosecutions deals sufficiently with the question of an independent element being involved in a person being tried on indictment.

In the circumstances, and particularly in the context of reducing delays in bringing persons to trial, the Bill abolishes preliminary examinations. As a necessary safeguard, it provides for a new procedure under which an accused who is to be tried on indictment may apply to the trial court before the trial is commenced to dismiss the charge or charges on the basis that the prosecution case is insufficient to support a conviction by a jury.

Under the Criminal Justice Act, 1994, where a person is convicted on indictment the court can determine whether the offender has benefited from the offence and can make an order confiscating money to the value of any such benefit. This process can, at present, only be initiated on the application of the Director of Public Prosecutions. The Bill changes this by providing that on conviction for a drug trafficking offence the court will automatically determine whether the offender has benefited — unless the court is satisfied that the amount which might be recovered would not be sufficient to justify the making of a determination — with a view to making a confiscation order.

Under current legislation the Garda Síochána can give certain procedural evidence to a court by way of a certificate, for example, evidence of making an arrest. The Bill extends this to cover evidence in relation to the custody of evidence and should help to reduce the amount of time which gardaí have to spend in court, freeing them for duty in the community.

At present, the rules governing the consideration by the courts of guilty pleas are contained in case law. The Bill places the rules governing guilty pleas on a clear statutory basis. It is clearly in the public interest to encourage persons who are guilty of offences to so plead at as early a stage as possible. Under the provisions of the Bill, a court will take into account the stage in the proceedings for the offence at which the offender indicated his or her intention to plead guilty and the circumstances in which this indication was given.

The Law Reform Commission, in its report on sentencing, identified confusion which had arisen about the law in relation to whether a maximum penalty could be imposed in a case where a person pleaded guilty. Circumstances can arise where, notwithstanding a plea of guilty, the nature of an offence can be such that the maximum penalty should be available to the courts when sentencing. For the removal of any doubt there might be about this issue, the Bill contains a provision to this effect.

I will now deal in detail with the sections of the Bill. Part I contains standard provisions providing for certain necessary definitions, commencement provisions and the payment of expenses arising under the legislation. With regard to the commencement provisions, section 2(2) provides that the Bill, other than sections 30 to 35, will come into operation by order or orders to be made by the Minister.

Sections 30 to 35 will come into operation on the passing of the Bill without the need for a commencement order. These sections deal with technical amendments in relation to our extradition legislation, the removal of the requirement for nomination of judges for the purposes of the Extradition Act, 1965 and the Criminal Justice (Drug Trafficking) Act, 1996, a numbering defect in the Criminal Justice Act, 1984 and the abolition of the "year and a day" rule. Each of these sections could be considered to be stand alone provisions for which no time lapse is either necessary or desirable before they are brought into force and, in those circumstances, it was decided that they will come into force when the legislation is enacted.

Part II provides for the new drug related offence. Section 4 inserts a new section — section 15A — into the Misuse of Drugs Act, 1977, and creates a new offence related to the possession of drugs with a value of £10,000 or more for the purpose of sale or supply. The section provides that the value of any seized drugs may be ascertained by permitting evidence to be heard of the market value of the drugs concerned. By "market value" is meant the price the drug would be expected to fetch on the market for the unlawful sale or supply of controlled drugs. Such evidence may be given by a member of the Garda Síochána or an officer of customs and excise who the court is satisfied has knowledge of the unlawful sale or supply of controlled drugs.

I am providing, in section 5 of the Bill, that a person convicted of the new offence of having drugs with a value of £10,000 or more will incur a penalty commensurate with the gravity of that crime. The mechanism to achieve this is through an amendment of the Misuse of Drugs Act, 1977, so that a person found guilty of the new drug related offence will be liable to imprisonment for up to life, and, at the court's discretion, to an unlimited fine. However, in view of the unique nature of the trade in illegal drugs, the great misery inflicted on so many people by those who deal in that deadly trade and to demonstrate — as I believe we must — our commitment as legislators to do all we can to rid us of this scourge, I have provided that in such cases the court must specify that the minimum period of imprisonment to be served upon conviction for the offence shall be at least 10 years. This is undoubtedly a harsh punishment but I am satisfied that it is warranted and proportional. It should send an unequivocal message to those engaged in the illegal drugs trade, and to those who might be tempted to engage in it, that we are serious about doing all we can to eradicate this blight.

A court will be entitled to depart from the requirement to impose the minimum period set down in the section only in exceptional and specific cases where it would otherwise be unjust in all the circumstances to impose the minimum ten years sentence. In this regard the factors which the court may consider relevant include whether the person pleaded guilty, taking account of the stage at which such an intention was indicated and the circumstances surrounding the indication, and whether the person materially assisted the investigation of the offence. I think everyone would agree that any person who seeks mitigation of sentence on account of a guilty plea should be required to demonstrate that the plea represented a genuine willingness to assist the Garda and the courts and was not simply a recognition of the fact that the case against that person was so overwhelming as to leave no prospect of him or her mounting any kind of credible defence.

While thus giving the courts the power to depart from the obligation to impose the minimum 10 years penalty in certain very limited circumstances, I am determined that those who receive such a sentence will know that for them the prison door will not revolve. To this end, the power conferred on the Minister for Justice, Equality and Law Reform under the Criminal Justice Act, 1951, to commute or remit a punishment will not be exercisable in those cases until the minimum period specified by the court has been served. Furthermore, while normal statutory remission will apply, the power to grant temporary release to a person serving a term of imprisonment will not be exercised during the currency of such a sentence unless for grave reasons of a humanitarian nature and any release granted on that basis will only be of such limited duration as is justified by that reason.

The Bill attempts to make a distinction between those who are cynically involved in the drugs trade for profit and those who because of a problem with addiction have become caught up in it. While I emphasise that feeding a habit is no excuse for engaging in this trade, it would be futile not to recognise the part which addiction can play. Therefore, the section gives a court the power, when imposing sentence on a person convicted of the new drug related offence, to inquire whether the person was addicted to drugs at the time of the offence and, if satisfied that he or she was addicted and that this fact was a substantial factor leading to the commission of the offence, it may list the sentence for review after half of the mandatory period specified by it has expired.

When the review takes place the court may, having regard to any matters it considers appropriate, suspend the remainder of the sentence on any conditions it considers fit. I believe this provision is appropriate and just but I should make it clear that even where these mitigating circumstances arise the persons involved will still face a long period of imprisonment.

Because of the very serious nature of the new drug related offence the section specifically rules out summary disposal of the matter following a plea of guilty.

Section 6 of the Bill provides for an amendment of the defence provisions contained in section 29 of the Misuse of Drugs Act, 1977, so that a person charged with the new drug related offence can rebut the presumption that possession of a controlled drug with a value of £10,000 or more was for the purpose of sale or supply, by showing that at the time such possession was lawful by virtue of regulations made under section 4 the 1977 Act. Section 7 of the Bill amends the definition of "drug trafficking offence" contained in section 3(1) of the Criminal Justice Act, 1994, to include the new drug related offence.

I move on now to Part III of the Bill. This deals with the abolition of preliminary hearings. I have already explained the thinking behind this. The House will appreciate that it is necessary in making this change to put in place a new legislative substructure dealing with criminal procedure and this accounts for the relatively complex and technical nature of the provisions contained in Part III of the Bill. These proposals to abolish preliminary examinations involve amendment or repeal of a number of sections of the Criminal Procedure Act, 1967, and consequential amendments to a number of other enactments.

Section 8 of the Bill amends the 1967 Act by substituting a new section for section 4 to define who is the prosecutor for the purposes of the Act. Thus, it is provided that the Director of Public Prosecutions, the Attorney General, a person prosecuting at the suit of either, or a person authorised by law to prosecute the offence may be the prosecutor.

Section 9 inserts a new Part into the Criminal Procedure Act, 1967 — to be referred to as Part 1A and consisting of sections 4A to 4Q. Section 4A provides that where a person is charged with an indictable offence before the District Court he or she will be sent forward for trial, unless the matter is to be tried summarily or the case is being dealt with under section 13 of the 1967 Act, which sets out the procedure where an accused pleads guilty in the District Court to an indictable offence, or where the accused is unfit to plead. The section also provides that an accused will not be sent forward for trial unless the Director of Public Prosecutions or the Attorney General gives consent.

Under section 4B, where an accused is sent forward for trial, he or she must be served with a book of evidence which essentially contains details of the case against the accused. Among the documents which make up the book of evidence are a statement of the charges against the accused, a copy of any sworn information in writing upon which the proceedings were initiated, a list of witnesses and a list of any exhibits. The book is to be served within 42 days of the accused being sent forward. This period may be extended by the trial court where there is good reason and where it is in the interests of justice to do so. Further extensions are also possible. If the court refuses an extension, the proceedings will be struck out. However, this of itself will not prejudice the institution of any future proceedings against the accused by the prosecutor.

Provision is made in section 4C for additional documents, such as a list of further witnesses and their statements, any further evidence of witnesses already notified, copies of any depositions and a list of further exhibits, to be served on the accused after service of the book of evidence. Under section 4D the accused is given the right to inspect all exhibits forming part of the evidence against him or her. Under the current procedures a District Court judge may decide, having conducted a preliminary examination, to discharge the accused person if he or she is of the opinion that the evidence does not disclose a sufficient case to put him or her on trial. The new procedures being introduced here will oblige the judge to send the accused person forward for trial where he or she is charged with an indictable offence, subject to the exceptions already mentioned. As a necessary safeguard these procedures provide a means for an accused person to seek to have the court of trial dismiss the charges after the service of the book of evidence. Paragraph 4E provides accordingly. Where the court decides to dismiss the charges because it appears to it that there is not a sufficient case to put the accused on trial the prosecutor may, within 21 days, appeal to the Court of Criminal Appeal, which may either affirm the decision or quash it, thus allowing the trial to proceed.

Provision is made in paragraph 4F for the taking of sworn depositions by a judge of the District Court where the judge is satisfied that it would be in the interests of justice to do so. The deposition will be taken in the presence of the judge and the accused person, who will be informed of the circumstances in which it may be admitted as evidence. The deposition will be recorded and read over to the deponent who will then sign it. It will also be signed by the judge. It should be noted that the present procedure that depositions must be taken down in writing is not being followed. Instead the paragraph provides for depositions to be recorded, which is more in keeping with present day realities.

Under paragraph 4G, these depositions may be admitted in evidence at the accused person's trial in certain circumstances, for example where the deponent is dead or unable to attend the trial to give evidence and where the deposition was taken in the presence of the accused person and he or she had the opportunity to cross-examine the deponent. The trial judge can decide not to admit the deposition where he or she is of the opinion that it would not be in the interests of justice to do so.

Paragraph 4H makes provision for an accused to obtain legal aid in all proceedings under this Part of the Bill, including proceedings for the taking of depositions.

In line with current procedures which apply under the Criminal Justice Act, 1997, paragraph 4L makes provision for relevant proceedings to be held otherwise than in public where the court is satisfied, because of the nature or circumstances of the case, or otherwise in the interests of justice, that it is desirable that the public be excluded from the court. Similarly, paragraph 4J places a bar on the publication or broadcast of information about such proceedings, apart from certain basic facts about the case. At the request of the accused person, the judge may permit more information to be published concerning proceedings for the dismissal of a charge. These restrictions will not affect the operation of any other enactment which provides for stricter controls on reporting or which allows a court to authorise publication of certain information.

Paragraphs 4K and 4L of the Bill are concerned with witness orders and witness summonses respectively. They give the trial court the power to issue a witness order and a witness summons requiring the attendance in court of the person to whom it is directed to give evidence and to produce documents or any other thing specified in the order. Any person who disobeys a witness order or a witness summons without just cause will be guilty of contempt of court.

To cater for those situations where, after the accused person has been sent forward for trial, it is sought to amend the indictment paragraphs 4M, 4N and 40 provide appropriate mechanisms. Paragraph 4M permits alternative charges or additional charges to be laid against an accused person and for the indictment to be amended accordingly. Paragraph 4N allows the indictment, with the consent of the accused person, to be amended to include counts which are unrelated to the original charge. Paragraph 4O allows the court to correct a defect in the charge unless it considers that this would result in injustice.

Paragraph 4P provides a procedure for the Circuit Court to transfer a case to the Central Criminal Court in cases where the accused is subsequently returned for trial to the Central Criminal Court on another charge related to the first charge. Both cases may thus be tried together.

To save on the time of gardaí and prison officers who must accompany accused persons held on remand to court from the prison, the Bill provides, in paragraph 4Q, that the person may be remanded to appear at a court which is near to the prison in which he or she is being held. That court may further remand the accused in custody or on bail.

Arising out of the changes in criminal procedure which I have just outlined, section 10 of the Bill provides for a number of other amendments to the Criminal Procedure Act, 1967. It substitutes a new title for Part II of the Act, which will now relate to guilty pleas and other matters; formerly it related to the preliminary examination of indictable offences in the District Court. It will also repeal sections 5 to 12 and sections 14 to 18 of the Act, concerning procedures related to the preliminary examination. Section 13 of the 1967 Act, however, is simply being amended to provide that where an accused person wishes to plead guilty in the District Court that court may, subject to the consent of the Director of Public Prosecutions or the Attorney General, deal with the offence summarily or, if the accused signs a plea of guilty, send him or her forward for sentence to the court to which he or she would otherwise have been sent forward for trial. The accused person will not, however, be sent forward for sentence in such circumstances without the consent of the Director of Public Prosecutions.

Another amendment to section 13 will provide that in a case where the accused person withdraws a written plea of guilty, having been sent forward for sentence on that plea, the court will treat the withdrawal as if the person had pleaded not guilty, and the prosecutor will then be required to serve the book of evidence on him or her, with the appropriate time for the service of documents being deemed to run from the date that the not guilty plea is entered.

Because of the number of other Acts which contain provisions related to the preliminary examination procedure, a number of amendments are required to those Acts as a result of the new procedures. Therefore, sections 11 to 22 provide for the necessary amendments. It is not necessary for me to detail them here.

For the sake of continuity it is provided in section 23 that the preliminary examination procedure will continue to apply to cases commenced before the procedures in the Bill come into operation.

Part IV contains a number of amendments to the Criminal Justice Act, 1994 relating to confiscation orders. Section 24 amends section 4 of the 1994 Act to require a court, following a conviction for a drug trafficking offence, to determine whether the convicted person has benefited from drug trafficking. At present, such a determination is made only on the application of the Director of Public Prosecutions. If the court feels the amount of money which might be recovered under a confiscation order would not be sufficient to justify it making such a determination it can decline to do so.

Sections 25, 26 and 27 amend, respectively, sections 7, 10 and 11 of the 1994 Act and are consequential to the change being made to section 4. These cover situations dealing with the reassessment of whether a defendant has benefited from drug trafficking, statements relevant to the making of confiscation orders and the provision of information by the defendant.

Part 5 of the Bill is concerned with the treatment by the courts of guilty pleas by defendants and the use of certificate evidence in criminal cases. Section 28 addresses the issue of the weight which is to be given to a guilty plea made by an accused person. It provides that a court, in deciding the sentence to impose on a person who has pleaded guilty to an offence, will, if appropriate, take into account the stage in the proceedings at which the person indicated an intention to plead guilty and the circumstances in which the indication was given. The court may still impose the maximum permissible penalty for the offence, in spite of a guilty plea, where it is satisfied there are exceptional circumstances relating to the offence which warrant such a penalty. This should clarify a situation where, as I mentioned earlier, the Law Reform Commission has identified a degree of confusion which exists at present. The provision does not apply to an offence where a mandatory penalty is provided for.

Section 29 is designed to achieve further savings in the time which gardaí need to attend court to give straightforward evidence relating to custody of exhibits. It allows this type of evidence to be given by certificate by a member of the Garda Síochána. This provision should also save court time. In this context the provision expands on those contained in section 6 of the Criminal Justice (Miscellaneous Provisions) Act, 1997, which allows for the use of certificate evidence by the gardaí in certain circumstances. While these provisions have generally been working well, it has been suggested to me that certain technical adjustments might be desirable and I am considering bringing forward an amendment on Committee Stage to deal with this matter.

Part 6 of the Bill deals with extradition and other matters. It contains technical amendments to our extradition law dealing with certification of offences which are considered desirable following discussions between the Attorneys General in this jurisdiction and in the UK. Sections 30 and 31 contain technical amendments in the legislation dealing with extradition between this country and Northern Ireland and Scotland. They provide that for the purposes of Part III of the Extradition Act, 1965, an offence punishable under the law of Northern Ireland or Scotland by imprisonment for a maximum period of at least six months and triable either summarily or on indictment shall be treated as an indictable offence or summary offence on the basis of a certificate issued by the appropriate authority in each jurisdiction. They also provide for the acceptance of such certificate as evidence of the matters so certified.

The purpose of section 32 is to remove the requirement for the nomination of judges of the District Court in the Dublin metropolitan district for the purposes of hearing extradition applications. Because of difficulties which arose during 1997 in relation to the nomination of judges under the Criminal Justice (Drug Trafficking) Act, 1996, it was felt that a related issue under the Extradition (Amendment) Act, 1994, should also be addressed. The 1994 Act provides that judges of the District Court assigned to the Dublin metropolitan district and nominated by the President of the District Court for the purposes of the Extradition Act, 1965, will have jurisdiction to hear extradition matters. It was considered appropriate, therefore, to delete the nomination requirement for extradition purposes, which is being done in section 32.

Section 33 corrects a numbering defect which arose out of an earlier amendment to section 4 of the Criminal Justice Act, 1984, relating to detention of persons under the Act. Section 2(b) of the Criminal Justice (Miscellaneous Provisions) Act, 1997, substituted two new subsections for subsection (5) of section 4 of the 1984 Act. The way this was done, however, involved substituting new subsections (5) and (6) for the old subsection (5), but there was already a subsection (6) so the net effect was that section 4 of the 1984 Act then had two subsections numbered (6). The purpose of section 33 is to renumber the subsections involved as (5) and (5A).

Section 34 removes the requirement that a judge of the District Court must be nominated by the President of the District Court before he or she can exercise power under the Criminal Justice (Drug Trafficking) Act, 1996, in connection with the authorisation of the detention of persons. Difficulties arose during 1997 in relation to the nomination of judges for the purposes of the 1996 Act. Under the Act periods of detention have to be approved by a judge of the District Court or a judge of the Circuit Court. A judge of the District Court was, however, defined in the Act as "the President of the District Court and any other judge of the District Court nominated for the purposes of this Act by the President of the District Court." Section 34 deletes this definition from section 1 of the 1996 Act so that all district judges will be empowered to exercise and authorise such detentions.

The purpose of section 35 is to abolish a common law rule of long standing. The effect of the rule is that for a prosecution for murder or man-slaughter to be maintained, the death of the victim must take place within a year and a day of the wrong done by the accused. The rule was justified on the ground that the further in time from the act that death occurred, the more difficult it was to establish with certainty that the death was caused by the act rather than by some other factor. It was also justified on the ground that a person should not be left under an indefinite risk of prosecution. The rule is now an anachronism, as there is much greater medical certainty in establishing the cause of death. Modern life support systems enable very seriously injured persons to be kept alive for much longer periods and in such cases it would be very wrong that prolongation of the life of the victim should prevent prosecution of the killer for murder or man-slaughter if the victim subsequently dies. The rule has not been an issue in any case here, except perhaps in the BTSB case. There were a number of recent cases in England in which the rule prevented a prosecution for murder which led to demands for its abolition. The rule was abolished in England in 1996.

It will be abundantly clear from what I said that this Bill contains a wide range of desirable and important reforms of our criminal law. I look forward to the debate on this measure and I commend the Bill to the House.

(Mayo): This is probably the most flawed and unnecessary legislation to come before the House for many years. This was to be the Minister's magnum opus, his antidote to crime, the manifestation of zero tolerance in sorting out criminals once and for all. In his opening comments, the Minister said he received wide support for the Bill. I scan the newspapers regularly and read comments of observers, criminologists and the general public, but I see little support for the Bill. A former official of the Department of Justice, Equality and Law Reform, Dr. Paul O'Mahony, now recognised as a top criminologist, in The Irish Times of Friday, 21 November, shortly after publication of the Bill, said in an article headed, “Justice Bill salvo wide of the mark”:

The new Criminal Justice Bill is the first salvo by the Minister for Justice, Mr. John O'Donoghue, in his promised war against crime. Crime was prioritised in all the political parties in the last general election and Mr. O'Donoghue's vague and over-hyped notion of zero tolerance was, arguably, Fianna Fáil's trump card, ensuring its narrow victory.

From Dr. O'Mahony's assessment of the Bill, which he undertakes forensically, it is the red card and thumbs down. It represents an attempt by the Minister to enact into law his wish-list of reforms, a list he compiled during his last few months in Opposition as spokesperson on Justice. Having largely dozed his way through the Dáil up to that time, he suddenly worked himself into a frenzy. With an eye to the alarming developments politically in Kerry South, he set about convincing everyone who cared to listen — many did not — that the country was on the verge of collapse into an irretrievable state of crime and lawlessness and that only he in office could provide salvation.

The Minister advocated a policy of zero tolerance, but even before the election he was forced to admit that this did not really mean zero tolerance. Otherwise the peccadilloes of some of his colleagues would have landed him in severe trouble, in which some of them have found themselves in the interim. Instead zero tolerance was to mean whatever the Minister, Deputy O'Donoghue said it meant, depending on whether there was a full moon or how Deputy Healy-Rae was feeling.

Some months ago the most amusing advertisement on RTE was a promotion for "Questions and Answers". It showed an excerpt from a previous episode of the programme. It showed the Government Chief Whip, Deputy Brennan, and Fianna Fáil's psychiatrist, Dr. Patricia Casey, explaining the meaning of zero tolerance by repeating the mantra "it's a concept". In the meantime, another great Fianna Fáil promise, mandatory reporting of child abuse, also turned out to be a concept and, worse still, no two members of the Government seem to agree on what this concept means.

We now have the third plank of the Minister's crime package before us, mandatory sentencing. It is only when one reads the Bill and listens to the Minister one realises that, true to form, mandatory sentencing does not mean mandatory sentencing. I suppose we should pity the Taoiseach, with the Minister, Deputy O'Donoghue, wired to the moon and Deputy Albert Reynolds wired to the moonies. It is difficult to know on what the Government, not to mention its largest party, is focusing.

There are five parts to the Bill, all of which are misguided. The first two provisions are the worst. The Bill proposes to introduce a new offence of possessing a controlled drug to the value of £10,000 or more. The object of introducing this offence becomes apparent in section 5 which provides that a person convicted of the offence shall be sentenced to ten years in prison. That would be a mandatory sentence were it not for the proviso that the court is not obliged to impose a sentence of ten years' imprisonment if it is satisfied there are exceptional and specific circumstances attaching to the offence or the offender. A guilty plea may also be taken into account to mitigate punishment. Thus, what has been introduced is a presumptive sentencing scheme rather than mandatory sentencing.

We should be grateful the Minister, advised no doubt by his officials, had the sense not to introduce outright mandatory sentencing. That would probably have been unconstitutional as the High Court and Supreme Court held that sentences must be proportionate to the gravity of the offence and the personal circumstances of the offender. There can be no guarantee the emasculated version of mandatory sentencing presented in the Bill is constitutional either.

There are two problems with this aspect of the Bill. The Minister has not presented a shred of evidence to the House to show that existing sentencing arrangements are unsatisfactory. What are the current sentencing patterns for offences involving the possession of controlled drugs with intent to supply? Where are the statistics in that regard? They are in the Minister's office, but he resolutely refuses to publish them. A statistical report on the prison system has not been published for the past five years. All the evidence shows the courts punish severely for drug offences, and rightly so. The judges presiding over the courts, who listen to both sides of the argument and see the victims, are best placed to know the appropriate levels of punishment.

The Court of Criminal Appeal recently stated that the motivation of a person selling drugs is an important factor and that a person who deals in drugs in a cold, calculated fashion, solely to make a profit, deserves heavier punishment than a person who sells drugs to finance his or her own addiction or because of some other hardship. In that case the court upheld a sentence of nine years for drug pushing. Can the Minister furnish the House with solid statistical information to prove this measure is needed?

Remission and early release powers are to be severely circumscribed in the case of prisoners sentenced under the relevant sections of the Bill. What will that do for the prison population? Does it mean more prisoners than ever will be granted early release while persons sentenced under the Bill are held unnecessarily in prison? This problem may not arise until some time in the future, but the Minister is creating a potential minefield for his successors in terms of managing the prison population.

The most unsatisfactory aspect of the legislation is the arbitrary way in which a person can be convicted of the new offence. All that has to be proved is that he or she was in possession of £10,000 worth of controlled drugs and the value is to be assessed by police evidence. This is a ridiculous way of computing the seriousness of the offence. The value of drugs can vary greatly from one part of the country to another. For all we know, it may vary greatly from one part of this city to another. Surely the most valid way to approach the matter would be to make the commission of the offence dependent on the possession of a certain quantity of drugs. This would have involved setting out in a schedule to the Bill the quantities of the various kinds of drugs a person would have to possess before an offence was committed, but that would have been troublesome and too much bother for the quick-fix methods favoured by the Minister. A ten year sentence for the possession of £10,000 worth of drugs is fine from the point of view of sound bites, but if sound bites and clichés solved crime, it would have been solved a long time ago. The Minister is introducing an impractical measure laden with difficulties.

Fundamental justice and fairness, as required by the Constitution, is also at stake. To deprive a citizen of his or her liberty for one minute, not to mention a year or several years, longer than is absolutely necessary is a serious infringement of the Constitution which provides that no one shall be deprived of his or her liberty save in accordance with law. The Supreme Court, when dealing with this article of the Constitution, has held that the mere enactment by the Oireachtas of a law allowing for the deprivation of liberty will not necessarily render that law constitutional. Such a law must not, in the words of the Supreme Court, stoop so low as to disregard the fundamental norms of the Constitution. Such laws, in other words, must be fair and non-discriminatory. Is the Minister seriously telling the House the arbitrary scheme he proposes to introduce here, by making the commission of an offence dependent on the monetary value members of gardaí or the customs service happen to ascribe to a quantity of drugs, is in harmony with the Constitution? Is this the kind of advice he is getting from the Attorney General?

In Part III, the Minister sets about abolishing one of the central elements of our criminal justice system, the preliminary examination of indictable offences in the District Court. This has been a long standing hobby horse of the Minister. He tried to accomplish it in the past by tabling an amendment to this effect to the Criminal Justice (Miscellaneous Provisions) Bill when it was going through the Oireachtas. In response to this attempt the then Minister for Justice, Deputy Owen, very reasonably referred the matter to the Committee on Court Practice and Procedure. In February 1997, the committee responded by issuing its 24th interim report entitled Preliminary Examination of Indictable Offences. Membership of the committee consisted of the now retired but then senior member of the Supreme Court, Mr Justice John Blayney, Mr Justice Robert Barr of the High Court, the late President of the Circuit Court, Judge Frank Spain, the President of the District Court, Judge Peter Smithwick, a senior counsel, a junior counsel, two solicitors and three other members. That was a prestigious committee by any standards. Its main recommendation stated that the preliminary examination system does not significantly delay the criminal process and remains an important safeguard for an accused person. It should not, therefore, be abolished, but this is what the Minister proposes to do. I assure him we will oppose this misguided provision on Committee and Report stages.

The committee, however, made valuable recommendations as regards taking depositions and other matters. The sole basis on which the Minister now proposes to abolish the preliminary examination is that a high percentage of those who undergo such an examination are sent forward for trial. In only a small number of cases is information refused, but this is the nub of the problem.

The preliminary examination provides a valuable filtering device to ensure that persons are not put on trial with all that it entails unless there is credible evidence against them. The majority of defendants may be sent forward for trial but it is the few who are not about whom we should worry. This is a clear case where the price of liberty is eternal vigilance.

The Minister is once more showing his utter contempt for the constitutional rights of accused persons. It is simply not good enough to say that if people are not guilty, they should not be tried. Suppose a person is sent forward for trial on very scanty evidence. That trial may last several days or, as we saw recently, several weeks. Even if that person is acquitted, how can he or she ever hope to regain their innocence in the eyes of the community or the general public? The trial process, not to mention its consequences, is a very severe punishment and a traumatic experience.

I also make the point in relation to the abolition of preliminary trial that an important constitutional right is the right of a person to bring their own case — the right of the common person to take a prosecution. At present any person can take a case on indictment against another and this has been enshrined in law. The private person can mount a prosecution where the DPP will not do so, and I have experience of this. Such a person then presents his or her evidence to the preliminary hearing and the District Justice decides if there is enough evidence to send this person forward for trial. If there is enough evidence, the DPP must take over the running of the case, although he can decide not to do so.

By abolishing the preliminary trial, we are infringing on a fundamental right of an individual to bring his or her own case where the DPP decides there is no case and to have it prosecuted subsequently by the DPP. There are a number of celebrated cases, particularly overseas, which have succeeded and people have been able to extract their own justice in the courts by virtue of this right. This right will be abolished if we do away with the preliminary trial procedure. There must be considerable alarm at that decision.

From the point of view of the State and its interest in a case, the Minister will acknowledge that time and time again the period between the preliminary trial and the hearing of the case proper has afforded the State an invaluable opportunity to ensure the book of evidence is correct. To go into the court with a flawed book of evidence can be a fatal procedure from the point of view of the State's handling of a case.

Section 28 provides that the maximum sentence prescribed for an offence can be imposed even if the defendant pleads guilty. It is not clear why the Minister has seen fit to introduce this measure, although one High Court judge, Judge Carney, has delivered several judgments advocating this change. There are, however, strong arguments against it. The criminal justice system depends to a great extent on a significant number of defendants pleading guilty. If they did not, then the courts would clog up very quickly. For that reason, the courts have always been disposed to give some credit for a guilty plea whatever the defendant's motivation for pleading guilty. If defendants believe they have nothing to gain from pleading guilty, they may decide to opt for trial as they are constitutionally entitled to do. There is always the possibility that they will be acquitted or that a jury will fail to agree as we saw recently after two very protracted trials. This leads to a new trial. The system will suffer as a result.

One of the major advantages of a guilty plea, particularly in the case of sexual offences, is that it saves the victim from the trauma of having to give evidence. I welcome the provision in section 28(1) which allows a court to vary the amount of credit given for a guilty plea depending on when it was entered. It can greatly help a victim to know at an early stage that she or he will not have to give evidence in a contested trial. This provision is more or less in line with the existing Supreme Court case law and should provide a valuable inducement to plead guilty at an early stage.

Unfortunately, what the Minister has given with one hand, he has taken away with the other. It would be much better if he left well enough alone by providing a reasonable inducement to people to plead guilty in appropriate cases rather than going further and taking away the certainty that a discount will always be given. The problem the Minister is trying to address comes from the Supreme Court judgment of some years ago in which it was held that it was wrong in principle to impose the maximum sentence when the defendant had pleaded guilty. The court's reasoning was based on the principle that I mentioned, namely the interests of the victim. I earnestly request the Minister to rethink the wisdom of allowing section 28(2) to stand, although I fully support section 28(1).

The Minister is in charge of a prison system which is in chaos. The reason is that over the previous seven to eight years, particularly from 1987 to 1994, not a single prison space was provided. We all readily acknowledge the tragedy of the death of Veronica Guerin as being the trigger which focused everyone's attention on taking a tough stand, particularly against the managers of crime and the drug barons. Thankfully, as a result of the raft of legislation brought in by the previous Government, supported by the then Opposition, criminals are on the run. Their baronies are in tatters and they are now the subject of court proceedings in this country or overseas. As a result, the courts are dealing effectively with the issue of drugs.

It is thanks to the prison programme brought in by the Minister's predecessor, Deputy Owen, that 800 prison places are being brought on stream. The majority of those prison spaces are now a reality or will be shortly made available. That should relieve the chronic overcrowding which is part of daily life in Mountjoy Jail.

There is a need for an imaginative approach to crime and punishment. I urge the Minister that there is a strong case for looking at alternatives to prison from the point of view of economy as well as social policy. As he knows full well, the annual turnover in prisons is 10,000 and the prison capacity is approximately 2,300 to 2,400.

Situations have arisen where people have been arraigned by the Garda Síochána for trivial offences. A patrol car with three gardaí or a taxi with two gardaí and a taxidriver has taken them to Mountjoy Jail where they have been clocked in and given a meal. Often they arrive back home before the Garda patrol car or the taxi. That is a daily occurrence. In such a situation, it is obvious that there is a need to look at viable and realistic alternatives.

Imprisonment should be the punishment for crimes of violence, crimes against the person or serious crimes against property. Jailing people for trivial offences is not good policy. The system is demeaned by virtue of the fact that many people are treated as if they have committed a criminal offence when the offence is the non-payment of a small fine or a civil debt. For the offence of non-payment of civil debts, contempt or non-payment of fines, almost 2,500 people annually go through the prison system with all the costly para-phernalia that involves. It includes arrest, transportation, clocking in at prison, keeping the person — in the case of non-payment of fines — for a few hours or a few days, sending them to another place of detention and eventually release. Is it any wonder our prison system is over-crowded and is a costly failure? I mentioned previously the work of criminologists, in particular Dr. Paul O'Mahony, who carried out a study of Mountjoy Prison. His figures speak for themselves. Apart from indicting the antiquated conditions he stressed that prison, as a deterrent or as an instrument for rehabilitation, is not working. Nine out of ten prisoners surveyed — this was a reasonably comprehensive examination of the prison population — had started their criminal career in Dublin city and had already been to St. Patrick's Institution. As stated time and again by prison officers, instead of prisons being places of deterrent or rehabilitation they have become universities of crime.

The issue of sex offenders will loom in the not too distant future. There are approximately 300 people in jail for committing sex offences; many of these are paedophiles, only ten of whom are receiving treatment. This is totally inadequate. Where there is a mass influx there will be a mass exodus. Within a short period, the Minister has recently grudgingly given the figures in relation to releasees, there will be wholesale releases of people who committed sex offences and paedophiles leaving prison without having received treatment or therapy.

Where the State has failed in its obligation to provide for adequate treatment and therapy for sex offenders and where such a sex offender reoffends on release, it could leave itself open to fairly substantial claims by the victims of those people. If somebody leaves prison, having been untreated and received no therapy, and reoffends there is a clear dereliction of duty on the part of the State. From the point of view of advancing the excuse, apart from the small number of places and the services available for such therapy and treatment, that people must volunteer, there should be no volunteering involved, it should not be optional. Where people have committed serious sex offences against innocent victims — children whose childhood is destroyed, their lives wrecked, children who have been traumatised and will receive psychiatric care for the rest of their lives — treatment should be mandatory. There should be no "ifs", "buts" or "maybes" about it, it should be mandatory and across the board. The scant manner in which we have dealt with this matter in terms of the low number of people receiving treatment, plus the optional aspect, leaves the State open to substantial claims in future.

Little has been done in terms of a systematic analysis or the link between crime and poverty. To get to the root of crime we need a crossdimensional interdepartmental system. There is obviously a link between crime and poverty. Some 80 per cent of crime in this city is committed in six identifiable postal districts, yet these are the districts that have not received anything by way of adequate resources to help solve unemployment problems, social dilemmas, etc. It is obvious there is huge potential for addressing crime if tackled on a systematic, cross-dimensional interdepartmental basis. Education is the key.

On the matter of the Minister leaking in advance certain statistics to support his contention that crime is on the wane, he should look again at crime against women in particular, and rape. At a time when punitive sentences are being handed down and there is a huge concentration the media and the newspapers on the daily occurrences in the courts, where people have been rightly arraigned and prosecuted for sex offences, it is obvious that the message is not getting across that the deterrents are not sufficient and that a systematic system is not in place for dealing with crime against women in particular, and rape.

The 40 per cent reported increase in rape cases is frightening by any standard. Something substantial will have to be done in the not too distant future to tackle this problem. I am disappointed with the Criminal Justice Bill. It is a manifestation of the Minister's "zero tolerance" thinking. It is strong in a number of areas — sending out a knee jerk reaction, thus far and no further — mandatory minimum sentencing, penalties, etc., but from the point of view of effectiveness in dealing with crime and criminals, it has neither the thrust nor the direction to solve the problem.

Dr. Upton

I welcome the opportunity to speak on the Bill which I oppose on the grounds that it does not present a real solution to crime. This proposed legislation is fundamentally flawed and in some cases involving serious crime, could prove useless.

The Minister for Justice is attempting to rush this Bill through the Oireachtas as a populist response to crime and to send a message to the people that, however weakly, his "zero tolerance" slogan still stands.

The Bill is based on the belief that crime can be tackled exclusively through legislation. It contains some decisive proposals, particularly in relation to mandatory sentencing. This proposal was rejected by the Law Reform Commission, when it was up for consideration by that body in July.

In opposing the Bill, I am not saying crime should not be tackled in an effective fashion. I want crime to be dealt with in a resolute and determined way which would put criminals out of business but in so doing we must tackle with equal vigour the social conditions which give rise to criminal activity. Part II of the Bill contains a provision for mandatory ten year sentences for drug trafficking in relation to so-called street value of over £10,000. This provision is completely out of kilter with the Law Reform Commission's report on sentencing which recommends the abolition of mandatory sentencing. On the point made by Deputy Higgins in regard to drugs valued at £10,000, he is correct when he suggests that the amount of drugs as well, as the value, should be taken into account. He eloquently pointed out how value can change from one circumstance to another, from time to time and from one location to another. Sentencing policy needs to be addressed but not in the manner proposed in the Bill. Unsupervised and early release of prisoners, which are often damaging to the community and the offender, should be ended. With regard to the probation service, which is under increased and consistent strain extra resources should be provided.

I support the recommendations expressed by the Law Reform Commission in regard to sentencing policy. Prison sentences should be used only as a last resort with community services orders being used to the greatest possible extent. Also in keeping with the recommendations of the commission, a centrally located criminal justice database should be created for the compilation and dissemination of statistics relevant to sentencing. Only in the case of murder should mandatory sentences be retained. I do not see how the Minister for Justice, Equality and Law Reform can seriously justify how a threat of a ten year mandatory sentence would put an end to the drug barons. His proposals will do little to solve the problems caused by drugs in society.

To reinforce my strongly held views, I draw the Minister's attention to a reply he furnished to me following submission of a parliamentary question on sentencing of convicted persons under the Misuse of Drugs Act. The Minister stated that Garda records show that up to 13 May 1998 there have been 50 convictions for indictable offences committed under the 1996 Misuse of Drugs Act, and that four of these convictions were in respect of drugs recorded as having a value exceeding £10,000.

These statistics appear to be the latest available from the Department of Justice, Equality and Law Reform. On this basis alone, I question the reasoning behind the proposals. Perhaps the Minister thinks it will give the impression that he is exercising a zero tolerance policy. I refute that. Putting four people behind bars for ten years will not solve the drugs problem.

No doubt the Minister reads the letters page in The Irish Times from time to time; if he does not, I am sure it is brought to his attention. I want to refer to a letter written by the Church of Ireland Chaplain at Mountjoy Prison, Reverned Patrick Semple, in which he expressed the opinion that some trafficking offences may warrant a sentence of ten years while others may warrant an even longer sentence. He went on to state that, equally, in the case of young persons without a criminal record who may be lured into carrying a bag filled with drugs through Dublin Airport, a ten year sentence would be disastrous. He suggested it is appropriate to leave sentencing to judges who, from years of experience in the courts dealing with offenders, can discern between first-time offenders, who may be quite naive, and hardened dealers who get rich from trading in drugs. The attempt the Minister made to draw that distinction is worthwhile. The Reverend Semple added that prison is supposed to be about rehabilitation as well as punishment. In his view, a ten year sentence would be more likely to destroy some offenders than rehabilitate them. While prison has to be a deterrent, and for some people there is no alternative to prison, we must not lose sight of the objective of rehabilitation being a function of prison. There is great scope for improvement in that area.

The existing Misuse of Drugs Act draws a distinction between cannabis and hard drugs, with offences involving cannabis drawing lesser penalties. Under the Bill, there is no distinction in relation to cannabis. While I am by no means making a case for the abuse of cannabis, it is worthwhile drawing some distinction between cannabis and heroin, particularly in relation to the social problems attached to the abuse of both substances.

The Labour Party has put forward an alternative and more substantial case than that put forward by the Minister for the fast-tracking of major drug offenders. Under this proposal, the trials of such offenders would take place within 60 days of their arrest. We suggest that the prosecution of drugs-related offences, and action related to evictions of local authority tenants and so on, should be given priority in the prosecution service. We have called for deadlines for forensic reports, DPP directions and the preparation of books of evidence and hearings. Under such a fast-track policy, trials in regard to certain types of serious offences should take place within 60 days of arrest. To allow this operate effectively the necessary support services, including the Garda Forensic Unit, needs to be upgraded.

Instead of attempting to push through this legislation I urge the Minister to take cognisance of the proposals I have outlined. I cannot identify how the Minister's proposal will take the fear out of communities which are torn apart from the ravages of drugs. Can the Minister tell me how this Bill will put an end to the recent spate of shootings in Fatima Mansions in my constituency in the south inner city? Those incidents are taking place in an area which has experienced a terrible drugs problem over the years.

The Minister should concentrate to a far greater extent on these type of problems which are festering in certain parts of Dublin. Little effective action has been taken to resolve them. The problem manifests itself in these disturbing events such as those that occurred last weekend when people fired guns for whatever purpose.

I emphasise to the Minister my grave concern and that of the people living in these communities about this problem. I am sure that holds true for the other public representatives in the area. I urge the Minister to give his attention to this problem. I acknowledge he took the time to visit the area and meet people living there, but I hope he will provide the necessary additional resources for the gardaí in the area to allow them deal effectively with this problem. I pay tribute to the gardaí working in the area. They have worked above and beyond the call of duty to deal with this problem but, unfortunately, they do not have sufficient resources in relation to manpower and so on. I hope the Minister gives his attention to that matter.

The people in these communities are living in desperation. I receive representations and telephone calls from constituents, particularly the elderly and the young, who are terrified to walk around their area. The Minister must deal with this problem because it has gone on for an unacceptably long period.

This problem is more complex than simply the security aspect. It relates also to agencies such as the local authorities in respect of what they can do to deal with this problem. I hope they turn their attention to creating an environment which militates against the type of activity that is taking place. That can be done in a variety of ways such as an increase in security and the use of modern technology. The concierge concept might be considered also. I ask the Minister to consult his colleague, the Minister for the Environment and Local Government, and the local authorities about this problem.

I disagree with the approach taken in the Bill and urge the Minister to listen to the views put forward by the Opposition. They are well-founded and have the support of prominent people working in the criminal justice system and in criminology as well as those studying the effectiveness of the various strategies which can be used.

I subscribe to the slogan of my colleagues in the UK Labour Party that there is a need to be tough on crime and on the causes of crime. In so doing, however, we need to be rational. There is little point in sounding tough if we do not take action. We must work on the basis of reality, assess the strategies which have been utilised and then move on. We should learn from our mistakes and make improvements but to do that it is essential to know the types of strategies that give particular results, but the level of statistical information in relation to the courts system is appalling. We are groping in the dark looking for solutions and it is that paucity of information which, to some extent, facilitates the Minister in providing the type of solution he has brought forward today.

The Minister must invest in serious research into the causes of crime, the solutions to the problem and the treatment of offenders. Research should be carried out also on the value of certain sentencing strategies and the effects of prison. Indeed, the Minister could go further by investing in research to determine the most effective way to manage prisons.

The problems in Mountjoy are dismal. The extent of the drugs problem in the prison, which has been allowed to fester over the years, is a terrifying indictment of the whole system. It is crying out for reform, yet it seems impossible for anything effective to be done. I know the Minister has good intentions and that has been borne out in debates on Question Time. However, not enough is being done and that must be addressed.

Prison should provide people with an opportunity for rehabilitation so that, when they leave, they will be motivated to move away from crime. What usually happens is that they are potentially worse when they leave prison because it has worsened their attitude to crime. As Deputy Jim Higgins said, prison is for many people a centre of advanced education in crime in which they become more effective because it offers them the opportunity to discuss and test new ideas for crime. That should not be the case. When the Minister makes tough sounding noises, they should be underpinned by effective measures but that has not happened.

Some parts of the Bill are worthwhile, especially the abolition of the year and a day rule which is important as it will ensure the difficulties experienced in dealing with the Blood Transfusion Service Board scandal will be surmounted and not experienced again.

Regarding the policy of being tough on crime, in many ways the most effective measure taken in dealing with the drugs problem and drug barons has had little to do with the criminal justice system. The Criminal Assets Bureau was set up by my colleague, Deputy Quinn, when Minister for Finance. It is a financial measure which has been exceptionally effective and the outcome has been that a large number of the key players in the drugs trade in Dublin are on the run. Either they have had to leave the country or they are in serious difficulty with the law. This measure did not come from the then Department of Justice. There are lessons to be learned from this. We need to think laterally about these problems rather than devising tough-sounding solutions which are often ineffective.

There is a need for greater enlightenment in the management of prisons. Deputy Higgins introduced a worthwhile Bill dealing with the punishment of people who default on fines. I calculate that the equivalent of £1.5 million worth of prison space is spent keeping these people in jail because they will not pay their fines or because they are in contempt of court. Such a system is years out of date. The simple way to solve it is to take the money from them through the courts, thus freeing up more prison spaces. It is a basic management technique and I do not accept the various objections and difficulties the Minister has made or highlighted as regards the matter.

The Bill should be opposed for two fundamental reasons. The first relates to civil liberties and rights. It is fair to say that for every right there is an obligation. In the past, there has been too much emphasis on rights and not enough on corresponding duties and obligations. Nonetheless, we should not lose sight of the fact that rights are important. It is just that obligations and duties must be attached to them if society is to work in a civilised manner.

The other reason the Bill should be rejected is that it is to a large extent a public relations exercise. The motivation for it seems to emanate from concepts derived from advertising in that it wishes to give a certain impression although it is seen to be otherwise when examined in detail. The Bill imposes mandatory sentences to which I am opposed but there is a series of exceptions which undermine the thrust of the Bill. It is essentially a PR exercise and will not solve the problem. That is a pity because there is a huge problem which needs to be addressed in a tough, single-minded and determined manner involving more than just prison.

I welcome the Bill and I am surprised to hear my colleague, Deputy Upton, with whom I have attended many meetings, arguing against the Bill and stating that it is only window dressing. Anything which strengthens the law is welcome.

I have made many pleas since the 1970s for a strengthening of the law to deal with these problems. I said in the 1970s and almost every time I spoke on a justice Bill in the House that the hooligans of the 1970s would be the gunmen of the 1980s and 1990s and that, if we did not tackle these problems, we would be later forced to introduce draconian legislation which no one wants. However, the latter course has become necessary.

A ten year mandatory sentence for anyone found in possession of £10,000 worth of drugs, subject to certain conditions, is a strong deterrent. Will the Minister clarify that it is not ten years less time off for good behaviour? It is important it should not be and that the message is sent out to everyone in Ireland and beyond. Anyone caught bringing drugs into this country should also be locked up for ten years instead of being repatriated to their own country from where they can enter Ireland at another stage. It might be that the new way to claim asylum would be to import drugs so as to spend time in Irish prisons. I hope that does not happen.

We are still in a state of confusion. Deputy Upton and I were at a meeting in our constituency on Tuesday at which people stated the crime problem still exists. People sentenced to six months to a year are released after a few months because there is a problem with overcrowding in prisons. The Minister is waiting to sign the Bill arising from the referendum to prohibit the courts from granting bail in certain cases. Progress will be made once the legislation is in place and sufficient prison places are made available. The sooner the better.

I agree with people who argue that those convicted of white collar crime should be placed in open prisons rather than locked up in high security prisons. Those who commit crimes against the person are most in need of incarceration. There was a dreadful case in my constituency last week where two young girls were battered by a man with a stick with nails in it because he wanted to rob them. He is willing to do anything to feed his drugs habit. Fortunately the girls were able to describe him to the gardaí. He was between 14 and 16 years of age with blonde hair and the gardaí knew who they were looking for. They found him and I hope he will not be out again in a short time to inflict the same terror and bodily harm. Drug addicts are out of control when seeking money for a fix. The only way to control them is to keep them locked up.

I am delighted that under the Bill it will be sufficient for the Garda to produce a certificate in court. This will keep gardaí out of the courts and on the streets where they should be. I have been pleading for years for us to follow the English example where inspectors present court cases on behalf of constables. This is preferable to the situation here where a garda must attend court for each prosecution which means that every time a criminal is caught another garda is taken off the beat. We want the gardaí on the streets where it matters.

I would like to see a higher concentration of gardaí on the streets at night. There are three shifts and there is a tendency to put as many gardaí on the early shift as on the late shift so the numbers are evenly divided. However, crime is lower between 8 a.m. and 2 p.m. than between 8 p.m. and 6 a.m.

No country has a perfect prison service. We deplore that drugs are taken in Mountjoy prison. However, the authorities feel there will be a riot if prisoners do not get their drugs so they turn a blind eye to the drug taking. I have no evidence of this but the drugs are getting through. This underlines the need for drug treatment services in the prison. I am not sure if the methadone programme is operating, but if it is prisoners should be forced to take the methadone at the clinic rather than being allowed to take it back to their cells where they might sell it on. I hear objections from people to the sale of methadone obtained on prescription. The Department of Health and Children is to take action to stop this, by for instance limiting the number of prescriptions which certain chemists and doctors can issue each week.

All of these people are contributing to the crime wave and the only way we will solve it is by locking up the addicts. I am heartbroken trying to establish facilities in my constituency to rehabilitate and educate people on treatment programmes. There has been a great deal of resistance. People agree that something must be done about this, but not in their areas. The same problem is faced when trying to house travellers — there is always somewhere else more appropriate.

In Crumlin the Salesian Fathers were willing to make rooms available for youngsters on treatment programmes. The youngsters were not to be treated at the house which was to be used to run education programmes and teach communication skills to prepare them for life after drugs. People are still trying to get on to programmes.

In the meantime, there is no use in saying that we cannot do anything about this problem. We cannot deal with one problem without tackling the other. The Minister for Justice, Equality and Law Reform is responsible for law and order. It is his job to lock up the criminals and those who are terrorising people and making life a misery for old people. In the shorter evenings people are terrified of syringe attacks. No matter how often we introduce legislation there is always some way around it. The main priority must be to build more prison places. We have to have places in which to lock up criminals so that they will no longer be a danger to the community.

The Minister said that if a person pleaded guilty this would be taken into consideration in the context of the ten year mandatory sentence. I do not know whether this can be inserted into a Bill. We cannot tell the Judiciary how to interpret the law. We make the laws and they interpret them. We must compose legislation in such a way that the Judiciary can interpret it to reflect the spirit of what we are trying to achieve. The law must be copperfastened so that someone cannot plead guilty at the last moment when it is obvious he will be found guilty.

We must also guard against the scenario in which someone with a record may argue when arrested for possession of drugs that the drugs were planted. A garda anxious to make an arrest may seek a quick confession and suggest to the individual that if he confesses the Garda will go easy or that he may not receive the mandatory ten year sentence. In such a scenario the individual may consider that if he or she argues innocence he or she may still go to jail for ten years. We have to be careful that no temptation is placed before people. We do not want a situation such as the plea bargaining system in the US.

The Minister must urgently address the length of time it takes to assess the strength of drugs. When drugs are confiscated they are sent to a laboratory for analysis which can take six months or longer. In the meantime, the individual is allowed out on the streets until the gardaí have the results of the tests. This needs to be addressed urgently.

We are depending on too many other things to fall into place. We are depending on the Departments of Health and Children, Education and Science and Justice, Equality and Law Reform. However, the function of the Minister for Justice, Equality and Law Reform is to protect people from drug pushers and addicts. It is pitiful to see someone addicted to drugs unable to be responsible for his behaviour and who cannot help himself. He has to get his next fix and does not care how this is done or who he murders. However, the first priority must be the protection of the public.

The Minister stated that the gardaí will spend less time in court through extending the type of evidence which can be given by certificate. Will this apply to all prosecutions or only to those relating to drugs? If the certificate is in place of an inspector in court to present the case, who will present the certificate? Will there be a maximum number of names which can be on a certificate? Will there be one certificate for each person or can a number of accused be on the one certificate? I would like some clarification.

When a person is brought before the District Court the arresting garda should not have to be present. However, gardaí are not disposed to change the system as it would interfere with their overtime. They often have to attend court on their days off. The Minister has given an assurance that there will not be a loss of income as gardaí are needed on the streets. While the strength of a Garda station may be 24, only four or five gardaí may be on duty at any one time when annual leave and sick leave are taken into account. This is unhelpful.

Video cameras can be a huge asset to the Garda Síochána. I have asked that they be installed on the bridge in Dolphins Barn where there is much drugs dealing. This would make the work of the Garda Síochána easier.

I welcome the Bill. Anything that contributes to a reduction in crime has to be welcomed.

It is important to look at the intention behind this Bill as well as at what it sets out to do. It constitutes the last vestiges of the zero tolerance hype to create a reputation for the Minister. The zero tolerance concept lifted him into office and it collapsed just as rapidly when he was faced with ministerial responsibility, a different matter to talking about it. What the Minister has delivered so far is the antithesis of zero tolerance. He has delivered a major crisis in policing and the possible breakdown of law and order. In coming days we will face a vista of police strikes and criminal lawlessness in which the security supports we take for granted will be seriously undermined. It is a scenario that is not only unacceptable but also unprecedented. No Minister has ever managed — it only took him a few months — to create such a truly awful and potentially dangerous shambles. The sole cause of this mess is a Minister who promised too much in Opposition and could not deliver in Government.

The Criminal Justice (No. 2) Bill is a fig leaf designed to disguise the Minister's failure to produce anything of substance to back up his rhetoric. It is all about saving face and precious little about saving communities from the ravages of drug barons. It is also, at least in part, bad law. It contains two major changes that give cause for grave concern. It creates a new offence of having controlled drugs with a market or street value of £10,000 or more for supply and prescribes a minimum penalty of ten years imprisonment. The abolition of the procedure for preliminary examination of indictable offences in the District Court also gives cause for concern.

Section 4 creates the new offence relating to the possession of drugs worth £10,000 or more for the purposes of supply. It relates to all controlled drugs, ranging from what is considered to be the relatively harmless cannabis to ecstasy and heroin. Much larger quantities of cannabis are regularly seized by the Garda Síochána and have hitherto attracted much lower sentences. In one case five persons were arrested with a cannabis haul of £3 million. If the five were convicted and given sentences commensurate with the proposal in this Bill, they would get a sentence of 600 years each.

Cannabis is generally regarded as a soft drug. It is illegal and should remain so but it is not the same as heroin and cocaine which are killer drugs and are continuing to destroy the lives and health of many young people who are entitled to our protection. The way to protect them is not to introduce hamfisted, crudely designed legislation which nobody supports except the Minister and the Government. I have not heard any significant support for this measure from any other quarter. The majority of comment has been critical and opposed to it.

The use of the criterion of market value is arbitrary and unreliable. It is a rough and ready concept which has been criticised in English courts and is viewed with unease by many legal practitioners here. It is stating the obvious that since the market is illegal there is not a proper way of assessing the value or does the Minister intend to institute an index by which customs officers and gardaí can check prices on the drug market daily? Perhaps this information could be read out after the news so that we would know if there was any overcharging on the streets. Unless some index is retained this provision will, inevitably, be open to abuse.

Under this provision a garda or customs officer could, in effect, determine what sentence an accused person would get. That has all kinds of attendant dangers of bias, inconsistency or even corruption. Gardaí to whom I have spoken do not want to be put in this position. This measure, in effect, interferes with the separation of the Judiciary and the legislator in a way that can at best be described as questionable. The legislator lays down the definitions of crime and the parameters on how to punish crime but the courts must be free to make judgments on a case by case basis. This measure, literally, erodes the basis of our judicial system.

Only in the case of murder is there a mandatory life penalty. This reflects society's abhorrence of the taking of another's life, although, ironically, even in this instance a life sentence is more flexible than that proposed in the minimum sentencing arrangement in this Bill. If the Minister gets his way, how can he justify a lesser penalty for the offence of rape or sexual offences against children? Where can the line be drawn or will we see the Minister continue down this track as he, inevitably, becomes more beleaguered and needs some new measure to try to salvage his tattered reputation? Why should drug dealing be singled out and not the raping of women and children or, as we have seen, the horrific raping of toddlers?

Children are mentioned in the Bill. Mandatory sentences, of their nature, cannot make allowances for the variety of circumstances which surround each offence. The Bill attempts to take account of this by providing that the minimum penalty will not apply to children or young persons or where the court is satisfied that there are exceptional and specific circumstances that would make it unjust. It specifies two circumstances which may be taken into account — where the accused has pleaded guilty or where he or she has assisted the Garda Síochána. The Bill proposes that where the accused was an addict at the time of the offence the minimum sentence may be reviewed and, possibly, suspended after five years.

The word "exceptional" can be taken in two ways — that it makes a nonsense of the principle of mandatory sentencing or that the non-imposition of the mandatory minimum term is intended to be a rare occurrence. We have to understand what is happening in the courts. Many cases before them involve drug couriers who have become involved in that activity due to family pressures, family ties to drug dealers, blackmail or threats that fall short of duress. Others are pawns of the real drug dealers who will not be convicted under this legislation. We should be clear about that. The runners and the couriers, who are the pawns, will be hit. Others were unaware of the amount of drugs they carried. At present such factors are taken into account by the courts, but this Bill will remove that degree of flexibility and discretion which is the hallmark of a good judicial system. It will also inevitably have the effect of filling up our prisons unnecessarily. Can it be that the Minister, who has so effectively caused havoc in the police service, is now intending to cause more havoc in an already overcrowded prison service? He seems intent on trying to get more people into prison instead of trying to ensure as many as possible stay out of it.

Other speakers referred to the situation in the prison service. It is important to refer to it because it is an important aspect of the Bill. We should pause to reflect on what prisons could do because there is much emphasis on the negatives in prison. The negatives are very real and endemic. We are familiar with what is happening in our appalling prison service. However, a prison service could rehabilitate prisoners. It could be responsible for people being better rather than worse individuals when they leave it. It could offer people on their release a new life, new opportunities and give them a second chance to make a go of things and stick to the straight and narrow. When we consider the work of organisations such as PACE, which try to offer people a second chance, one can see very clearly where the money should be spent. It should be spent on the probation and welfare service and voluntary organisations that are working with prisoners to try to draw them away from a life of crime and to ensure there is a future for them. The majority of people who end up in prison are unemployed, poor, male and have little or no education or prospects. Those are the problems we much recognise and address. Dealing with the problems that face those who end up in prison would offer the best solution.

The Minister is not satisfied simply with mandatory sentencing. He sets out in the Bill to prevent any commutation of the minimum sentence or temporary release of prisoners convicted under this legislation, except for grave humanitarian reasons. I question the constitutionality of that section as it may be found to discriminate unfairly against this class of prisoner. It is unreasonable to fetter the Minister and prison authorities in this way.

It is revealing of a paucity in the Minister's approach that he has used the extent of drug abuse in our communities as an excuse to present this Bill and to go down this road, which is not garnering the support of a substantial proportion of the population outside of the Government. Anyone who knows the situation on the ground appreciates that what is required to have a real impact in combating drugs is an integrated and effective approach on a number of fronts. This Bill is not part of that strategy, if the Government has such a strategy. The rainbow Government devised a strategy which proved its worth in connecting the good people in local communities who felt isolated in the fight to combat drugs with the powers, influence and resources of the Government.

This Bill is so far off the mark that it may well result in the most extraordinary outcome whereby more people will be convicted when drugs are scarce and, therefore, more costly than when drugs are plentiful and cheap. We have seen that over and over again in Dublin. When there is a flood of drugs on the market drugs can become so cheap that I have heard young people say it is cheaper to get ecstasy than it is to get drunk. In those circumstances there will probably be fewer convictions and more drugs being carried by couriers who will not come under the provisions of this legislation. That shows up the idiocy at the heart of this Bill. When drugs are rampant it is likely the number of convictions will drop and inevitably people will be able to carry a greater quantity of drugs and not come under the provisions of this legislation compared to when there is a scarcity of drugs and people will come under its provisions at an earlier point.

Other Deputies referred to the issue of drugs in our community. However, efforts are being made to tackle the problem. One aspect of the strategy to tackle it which has proved its worth over and over again is the provision of treatment centres. I know of young people who have come through them and have been able to finally kick the habit. Others have not and they will be dependent on methadone for a long time, if not all their lives. Methadone stabilises their condition and takes them out of the criminal world and the fact they can avail of that type of treatment does tremendous good. The Minister would be much better employed advising his Deputies and his public representatives in local authorities to stop putting the fear of God in communities who are afraid to accept the provision of treatment centres. They should start to lead the way by ensuring that every community that requires it has an adequate number of them. I am proud of the fact that there are three treatment centres in Bray. We are probably ahead of the posse in many ways, but it was not an easy achievement and we did not get the help and support of Deputies who now sit on the Government benches. I hear reports all the time about how Fianna Fáil, in particular, has been unhelpful and has attempted in many ways to block the provision of treatment centres, which are an essential part of the battle against drugs, in other communities.

If we could cut off the demand for drugs, we would be able to reduce the supply. We all know that no matter how many people are sent to prison, as long as there are big profits to be made in the drugs trade there will always be somebody to take the place of the courier or drug baron. There will always be someone who wants to make money out of the suffering and death of our young people. We have to deal with the demand and face the fact that for many of our young people life is so bleak that taking drugs is an attractive option. If the Minister and his colleagues could do that, we would all express our gratitude. That would be a better approach than having a Bill that is nonsensical in its approach and is being used to shore-up the reputation of a Minister who has proved himself to be incapable of dealing with issues on his doorstep which he has singly failed to address and, in many ways, when one considers the Garda Síochána dispute, made worse.

I thought this Bill would have been welcomed by Members on all sides of the House because it is a draconian but sincere attempt to tackle a problem about which all right minded citizens are concerned and on which they have repeatedly stressed the need for action. The Minister has taken some tough and difficult decisions in the Bill.

Like many Members I have experience of dealing with the drugs problem. I fully agree with rehabilitation and treatment centres as means of dealing with the problems which have arisen. The Bill is endeavouring to cut off the source of drugs and provide long periods of imprisonment for drug barons and godfathers irrespective of the legal or financial resources they may have and the delaying tactics they may bring to bear. It provides for all that is necessary in the complex business of getting a successful prosecution.

How often have residents associations and concerned parents invited Deputies to meetings and told us, for example, of a person coming to a particular place every Thursday at 4 o'clock or to a housing estate to sell drugs? Such activities are reported to the Garda who are attempting to deal with the problem. However, getting evidence at that level is complex and difficult. Under this legislation drug barons and those they employ to ply their vicious trade will know that if caught with drugs with a value of £10,000 or more they will receive a mandatory sentence of ten years. It is a draconian but necessary measure and I hope all Members will support what the Minister is attempting to achieve.

The Minister has recognised the possibility of unfortunate cases where people, through addiction, find themselves caught, accused and sentenced by providing for a halving of the sentence based on medical evidence and various other reports which can be made available to the court. Therefore, while it is a draconian measure, it includes a human dimension and understanding.

There are inadequate resources to address the major problem which exists. On the one hand we have to deal with the cutting off of supply while on the other hand the problem of addiction and getting people off drugs has to be dealt with. There is urgent need for a large detoxification facility to allow people be placed in care and go through the necessary traumatic process, be it through the taking of methadone or another method, to try to clear their addiction. In my constituency I have been involved in a number of such rehabilitation centres where computers and other assistance has been provided through support from various commercial organisations to help those in the Eastern Health Board and the voluntary sector carry out their very laudable work. These centres take under their wing people with addiction who visit the centres, take their dose of methadone under supervision, live with the continuing temptation and try to end their addiction. It is a difficult process for those afflicted with this curse.

We can see the trauma, pain and hurt in parents' faces on speaking with them at meetings as they explain how their son or daughter is addicted to drugs. Once people start using drugs the barons or godfathers get them to act as sales agents. This is how the vicious chain is formed. We must address the source of the problem. Together with other measures taken by this and previous Governments and the work of the Criminal Assets Bureau, this Bill is an attempt to deal with the source of supply. We must follow the money trail and the ill gotten gains accumulated by the drug barons in banks both here and abroad. There is no speedier way of tackling the problem. The international banking system is endeavouring to co-operate and the issue of movement of funds is now a responsibility of bankers in the context of drug trafficking and laundering of money.

The signal being sent out from the House is that anybody found trafficking in drugs with a value of £10,000 or more will serve a minimum sentence of ten years and perhaps longer. I listened to Deputy McManus and would have thought this Bill was in the making under the previous Government. Every Government has been conscious of the drugs problem and the difficulties it is wreaking on communities throughout the country. I was surprised when the issue was discussed at a meeting of our parliamentary party to hear that Deputies from rural areas, such as that represented by Deputy McCormack, had the same concerns and were experiencing the same difficulties which we thought were unique to large urban areas. It is an evil activity running through the veins of the country and tough measures are necessary to get on top of the problem.

I believe, not simply because I am on this side of the House, that what is being done is dramatic and drastic as it takes away many individual rights and discretion from the courts by setting down in mandatory form exactly what should be done with people convicted of this very serious crime. The Minister should be commended for doing this. All the agencies attempting to tackle this problem will say these measures are necessary and that the supply must be cut off.

In recent years some of the successful high profile convictions both here and in the UK have indicated to drug barons that they cannot have their wicked way or continue to smuggle drugs into the country and distribute them among our young people. The Bill amends the Misuse of Drugs Act, 1997, and some other Acts which deal with the potential of the Minister to remit sentences. The Minister is giving away his existing discretion to further strengthen the provisions and show that he and the Government mean business when it comes to dealing with these people.

The Bill is overdue and is well thought out. It comprehensively deals with the issues which arise and I sincerely hope it will receive a speedy passage through the House and become law so the Garda and the courts can use it in tackling this curse in society, particularly among young people who unfortunately succumb to the temptation of trying out drugs.

I disagree with Deputy McManus who wants to differentiate between cannabis, heroin, etc. She may have a theoretically valid point, but in practice the availability of soft drugs tragically leads to the taking of hard drugs. Drugs are the heart of the problem irrespective of type and the Minister is right not to make an exception. Seizure of drugs with a value of £10,000 or more will result in the full rigours of the Bill being applied, including a ten year mandatory sentence.

Deputy Jim Higgins made some valid points and I have no doubt that on Committee Stage the Minister will consider them in some detail. The Minister has already suggested he will be tabling a number of amendments. The Bill will be a very worthwhile instrument for the Garda and the courts.

Debate adjourned.