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.