Dáil Éireann debate -
Thursday, 25 Jun 1998

Vol. 493 No. 2

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

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

Mr. Neville

I welcome the Bill. It is necessary legislation to continue the fight against the evil of drug barons and those who peddle drugs.

I wish to bring to the attention of the House an excellent survey on drug abuse in third level colleges which was carried out by the Union of Students in Ireland. It is the first such survey and the research was carried out in October and November, 1997 and January and February 1998. I congratulate USI on conducting the survey as part of its drug awareness campaign. When we discuss drug abuse we tend to concentrate on the deprived areas of our cities where drug abuse is a significant problem. However, we usually ignore other areas even though drug abuse occurs at all levels of society. It is important that we are conscious of the need to tackle the drugs problem in a multifaceted way.

A total of 72 per cent of respondents indicated that they took drugs for the first time at second level; 5 per cent, at primary level; and 23 per cent, at college. The earliest age at which a respondent took drugs for the first time was 11. The majority took drugs for the first time between the ages of 14 and 18. A small number took drugs for the first time over the age of 18. I was surprised to learn that only 10 per cent indicated that the drug they had tried first was ecstasy compared to a figure of 47 per cent for cannabis.

There is a view that young people experiment with drugs because of peer pressure but 75 per cent of respondents indicated that they took drugs initially out of curiosity. Only 17 per cent indicated that they took drugs because their peer group was doing so. This appears to suggest that an awareness campaign to create a better understanding of drug abuse could be effective. A total of 67 per cent indicated that they had received information prior to taking drugs. When asked from where they had received it, 28 per cent indicated that they had obtained it from articles, 24 per cent from friends, 23 per cent at school, 10 per cent from parents and 8 per cent from an older sibling while 6 per cent said they had found it out for themselves. A strong awareness campaign highlighting the dangers associated with experimenting with drugs should influence young people not to get involved.

A total of 69 per cent of respondents indicated that they were aware of the effects drugs could have. A total of 62 per cent indicated that they now consume a larger quantity. Those who use drugs on a weekly basis usually smoke four joints a week on average. Most would describe themselves as regular cannabis users. The average amount spent per week on hash is £10 to £15. Others would describe themselves as weekend users. Their average alcohol intake is six pints on a night out. They take one ecstasy tablet on average. Those who use drugs on a few occasions each month spend £10 on average on hash. The other drugs used in this manner are ecstasy, speed and poppers.

Those respondents who cited affordability as the reason for continuing to use drugs indicated that smoking cannabis was cheaper than alcohol with better effects. A small minority indicated that they were probably addicted to it. Other reasons given included the relief of pain and psychological dependence.

When asked from where they obtained drugs 27 per cent of respondents indicated that their source of supply was a regular dealer; 53 per cent said friends; 7 per cent, college; and 4 per cent, on the street. When asked about the immediate dangers associated with the drug of their choice, the five main dangers cited were addiction, death, the tendency to use heavier drugs, health problems and loss of control and consciousness. Other factors included the cost of drugs, the fear of prosecution by the Garda Síochána, the fear of being caught by their parents, and the fear that they would be taken advantage of or injured while under the influence.

A total of 57 per cent of respondents indicated that they had a bad experience. Those who had a bad experience with LSD had suffered from hallucinations lasting up to two hours. One respondent indicated that an LSD trip had lasted up to 12 hours with flashbacks which had lasted between three to seven hours. Those who had a bad experience with ecstasy had suffered from hyperactivity with jaw and tongue spasms and a negative come down, including extreme paranoia, palpitations, sweats and terror of friends. Loss of appetite, a feeling of weakness and breathing difficulties often lasted into the following day. One respondent indicated that his breathing had stopped and that his rib cage and upper abdomen muscles had arrested. He believed his experience was due to a bad tablet. He subsequently gave it up. A bad acid trip can last eight to nine hours. One respondent indicated that he had a ten to 15 minute flashback while on a bus. Those who had a bad experience while taking magic mushrooms had suffered from paranoia lasting several weeks. Other respondents indicated that they had physically injured themselves when mixing magic mushrooms and acid. Others suffered from constant vomiting when mixing alcohol and ecstasy, loss of sensation in limbs for 30 to 40 minutes when mixing alcohol and cannabis and a feeling of weakness and panic attacks for 15 to 20 minutes when mixing alcohol, cannabis and poppers.

A total of 61 per cent of respondents indicated that the policies of dance clubs were not safe; 86 per cent indicated that ecstasy was part of the club scene; 83 per cent indicated that a public campaign would not stop them taking drugs; while 41 per cent indicated that they considered media reporting to be sensational, 40 per cent, informative, and 19 per cent, too emotional.

I refer to these figures because, when dealing with this problem, people tend to associate it with a certain socio-economic group or parts of cities. Undoubtedly, drugs such as heroin, which accounts for only 1 per cent of use in colleges, is endemic in parts of the capital city. It is appropriate that the public is concerned about the drug problem which is a blight on communities. It is not only a city issue. It affects rural areas also. Drugs are available in most rural towns and villages. One can report it to the Garda but people are reluctant to name the individuals involved.

I appreciate the need to introduce the legislation to deal with drug trafficking and dealers. It is most important that the drug barons and those making enormous sums of money from drug trafficking are caught and the force of law applied to them. We must ensure the laws do not contain loopholes. I am glad the Bill highlights the vital distinction between the position of addicts who are accused of being in possession of drugs and people who deal drugs for the sole purpose of profit at the expense of misfortunate addicts.

It is also important to recognise that, regardless of the seriousness of the problem in communities, the fundamental rules of law and democracy must be applied at all times. Everything must be done in accordance with constitutional provisions. The Bill is extensive and a number of sections could be questioned in terms of their severity and the democratic freedom of individuals. The Minister must take particular note of this aspect. Reactionary Bills were introduced in the past following unusual cases. Subsequently, legislation that was introduced in a hurry was successfully challenged on constitutional grounds and it was necessary for the Houses of the Oireachtas to change the statute. The Bill reduces the ministerial power which currently exists and I hope the Minister will explain why this action is being taken in relation to the offence. I welcome the Bill and look forward to its speedy passage.

Mr. Kenneally

I wholeheartedly welcome the Bill. The measure is long overdue and I congratulate the Minister for introducing it. In my research I found that some of my original notes on this subject dated back to early 1996. It is gratifying to note that the House is at last coming to grips with the wave of drug related lawlessness which is raging on the streets of the capital city and provincial towns and cities.

It is fine for Opposition Deputies to jeer and sneer at the Minister who has positively and firmly come down on the side of law and order. However, unlike his predecessor, he has initiated measures to combat the dreadful conditions thrust upon certain sections of society who live in areas where crime is prevalent. I can only give a certain amount of latitude to criminals who claim, or on whose behalf it is claimed, that the environment in which they were raised or the poverty to which they were subjected is responsible for their behaviour. To totally accept this as an excuse for criminality would be to denigrate the efforts made by the vast majority of others in similar economic or social circumstances to lift and keep themselves above the criminal threshold.

As I prepared my contribution I was interrupted by a telephone call from a constituent. He wanted to know what we are doing about youth misbehaviour and criminality. He had been subjected to several hours of abuse by a group of boys and girls aged not more than 11 or 12 years outside his house who made his life a misery. Having failed to reason with them and not wishing to concede to his desire to give them a good hiding, he called the Garda. It was a disappointing exercise all round. The Garda were powerless to make any spirited response, the constituent received little satisfaction after his couple of hours of misery and abuse and the children went almost unchecked.

For those who are willing to listen, the answer to this is what is known as "zero tolerance" where the lesson is learned at any early age that all misdemeanours will be taken into account and punished in line with what is reasonable. This lesson will be taken into adolescence and adulthood and may catch a young person in time and prevent him or her drifting into a serious criminal career later.

Much of the theft is petty. Much of the upset, imposition and feeling of violation is caused by small time criminals or out of control teenagers and not by hardened criminals. This aspect must be addressed as much as major crime. Whatever legislative steps are necessary must be taken to control it. However, if the only response to such logic is jeers and dismissal, it will be necessary to introduce more legislation, similar to this Bill, to deal with a situation involving adults which might have been prevented.

Correction must start at an early age and a culture of correction needs to be reintroduced and developed. It has been allowed to slip and the people are paying a heavy price for the ineptitude of the previous Administration. Unfortunately, a situation has not only developed but been positively encouraged where it is almost impossible to deliver correction to a child. The religious leaders, gardaí and teachers have all encountered this difficulty. The whispering campaign about it being wrong to slap a child has added little that is positive.

We must face reality. Society must be clawed back from those on the criminal side who have hijacked it and those who are prepared to allow the situation to deteriorate further. It is easy for people to criticise and jeer when decisive policies are put forward and decisive action is proposed but then to panic and blame those around them when the deteriorating situation finally catches up with us.

Following the Veronica Guerin murder, the former Minister finally sat up and took notice of the slide. It took that cowardly act to provoke not only the Minister but also society into taking some of the measures for which this side had called for a considerable time. It is possible to tackle crime and win. We need only consider the success of the Garda, the Criminal Assets Bureau and other State agencies in the two years since Veronica Guerin's murder. With a combination of good legislation, adequate resources and a clear unequivocal political message, society can win. No one is, or can be allowed to be, invincible or untouchable in the State. Even if that was the only benefit of the last two years of dedicated policing, individual heroism and good Civil Service practice, all the effort would have been worthwhile.

There is no point, however, in tackling only one area of the entire criminal process if no progress is made in other areas to streamline procedures, improve detection and provide additional places of detention. A more integrated approach is necessary and the Bill is only one piece of a large jigsaw. Week by week the Minister is putting in place more pieces of the jigsaw. When all his proposed measures are in place, Ireland will be seen as a criminal unfriendly zone; to use the favoured American expression, "they can run but they cannot hide".

Only so much parliamentary time is available to Ministers. Limited resources are available to each Department and on this occasion the Minister has chosen to meet head on the growing threat to society from drug trafficking. As I stated previously, the increase in the use of illegal drugs is causing a concurrent rise in ordinary crime. Theft, larceny and burglary provide money for drugs. It is estimated by the Dublin Chamber of Commerce that the cost of crime to the city's retail sector is approximately £30 million a year. In addition, these businesses spend more than £20 million on preventative measures, a cost the hardpressed retail sector can ill afford. This has serious implications and grave repercussions for the retail sector both in Dublin and the provinces. Not only is there an added danger of physical injury to citizens, profits are reduced and jobs are placed at risk. There are many reasons for the prevalence of crime, from underlying social problems to the allocation of resources to the Garda. However, the inadequacy of the legal system, which makes it difficult to secure convictions, is a crucial factor. There is a low incidence of prosecutions of crimes against business, and most businesses are dissatisfied with the courts and sentencing. These are clear weaknesses in the criminal justice system that must be addressed urgently. The fundamental problem is that the system is weighted unfairly in favour of the accused. I am by no means a member of the "hang 'em, flog 'em" brigade, though I may be close to it. However, we must face reality. Advances have been made recently, but the odds of winning are on the side of the criminal rather than the law. In Opposition, the Minister introduced a Private Members' Bill, during which I said:

The misuse of drugs and their illicit sale and distribution is a creeping cancer in our society for which the only cure is surgery. The practice of drug taking and profit making must be removed with clinical care and efficiency in clean and successful surgical strikes. We must facilitate all the necessary agencies of the State to be able to carry out this surgery efficiently so that the people can survive.

This Bill forms part of that surgical programme, and I applaud the Minister for sticking rigidly to the introduction of positive proposals which will combat the scourge of illegal drugs. This Bill is a positive step towards providing the type of security which people demand and have a right to expect. One of the major causes of drug related crime comes from the dealers and godfathers. Nobody can deny that someone trafficking in drugs to the value of £10,000 or more is not a dangerous criminal. Those who traffic in drugs for profit should be shown no mercy and should incur the full rigours of the law. Dealers must know that what they are selling on the streets and in back alleys, pubs and dance halls is possible death or a life of misery, dependence and insecurity. In any other context they would be the outcasts of society. I am pleased the Minister is bringing in special provisions to deal with such people. We are not discussing junkies dealing on the street, but organised crime which must be met head on. Nobody can say that the mandatory minimum sentence of ten years is too harsh; there is too much at stake for the future, and too many lives are at risk. A great deal of damage can be done by £10,000 worth of drugs, and the courts must recognise that. The Minister is giving them the opportunity to do so.

Without this mandatory sentencing, sentences would be at the discretion of the Judiciary. We have had many past examples of wildly differing interpretations from judges of how harsh a sentence should be. For example, some judges are quite happy with the two year ban for drink driving offences, while others differ. In my area, one district court judge has often remarked that in certain circumstances he feels that the Probation Act should be applied in drink driving cases if it is a first offence.

This type of inconsistency must be eliminated, and a comparison can be made between the courts system and the World Cup. The judge is the arbiter in the courtroom whereas the referee is the arbiter on the field of play. The referees were brought together in Paris before the World Cup to discuss the rules of the game and to ensure that their interpretations were similar in order to achieve a level of consistency. Do our judges ever do this? If not, they should consider doing so in the future.

This Bill also provides for speeding up trials, which appears to be an effort to accommodate the courts and the State. That is not necessarily the case. It is to the benefit of a defendant, particularly one who claims innocence, in that justice will be granted at an early date. There is an old maxim "justice delayed is justice denied" and this is an attempt to ensure that justice will be done as swiftly as possible and that cases will be heard within a reasonable period. The provision whereby the book of evidence must be produced within seven weeks is also welcome, and will ensure that less serious cases will go ahead with all possible speed. Criminals are the only people who will not be enamoured of these measures, as they want to postpone trials and sentencing as long as possible.

I have always doubted the benefits of the necessity for preliminary examinations which take place in District Courts. It has often provided an effective delaying tactic for the accused and given him or her time that has been put to bad use. Under this measure, that procedure will be replaced with an immediate return to the court of trial.

However, these measures do not simply facilitate the State or reduce the head start the criminal has on the legal system. Section 5 contains an amendment to the Misuse of Drugs Act, 1977, which contains a provision whereby the court will have the power to take into account, when imposing sentences, whether the criminal was addicted to drugs at the time of the offence and whether that addiction was a substantial factor that led to the commission of the offence. I applaud the Minister for including this compassionate provision.

We cannot close our eyes to reality. Addiction, not greed, is the cause of much city based crime. This is not to excuse that crime, but only a very hard society would close its eyes to the nuances and facets of the drug problem. Addiction can lead otherwise law-abiding people into a life of crime. The elimination of the addiction leads to the elimination of the need to commit crimes, and many people who have given up drugs have gone on to be not just good citizens but experienced counsellors and role models for others caught in the web of drugs.

It has long been recognised, not just by the Garda but by the communities it has served so well, that the place for a garda is on the street. More and more garda time is taken up with court appearances, to the detriment of community policing and detection. I welcome the Minister's decision to keep the gardaí out of the courts as much as possible and to keep them on the streets, where confidence can be built. Gardaí can now do much of their procedural work by written certificate rather than court appearances, and supervising garda officers will welcome the many thousands of working hours which will be available under the new system. The proposal to eliminate the power of the Minister to commute sentences until after the minimum mandatory sentence has been served is also good. Drug trafficking is such a serious crime and threat to society that we must remove any loopholes that could allow criminals off the hook.

This Bill is a serious and genuine attempt to tackle serious crime. It is a realistic attempt to make the courts more streamlined, effective and relevant to everyday life. It is an attempt to make the best use of garda time and resources, allowing as many gardaí as possible back on the beat while still giving those accused of serious crime everything which is their due in courts of law. It is also an attempt to marry the concepts of upholding the law and of giving the accused due process while showing compassion where it is called for. The Minister has the mix just about right and it is one more part of the comprehensive jigsaw of justice which he is assembling. I applaud him and commend the Bill to the House.

Mr. Perry

I propose to share my time with Deputy Gormley.

In general the changes being introduced are acceptable. However, there is one change which is unnecessary. It is cumbersome and will add considerably to the cost of the administration of justice. Currently, if a person is charged with an indictable offence, a book of evidence is prepared and submitted to the District Court and the District Court justice decides whether there is a prima facie case to answer. If the District Court judge so holds, the defendant is then sent forward for trial to the Circuit Court. That method of preliminary examination has worked well. Under this Bill, however, it is proposed that immediately a person is charged he will be transferred to the Circuit Court. A book of evidence will then be prepared by a Circuit Court judge who will decide whether there is a prima facie case. If the Circuit Court so decides, the matter is sent to a different Circuit Court judge to deal with same. If it transpires that further depositions are required on the matter, the Act directs that these shall be taken in the District Court. This amendment adds a further layer of bureaucracy and expense to the administration of justice. The Circuit Court does not sit as often as the District Court. Furthermore, there are fewer venues for Circuit Courts than for District Courts. Accordingly, in country areas the fact that the preliminary examination takes place in the Circuit Court will incur additional travel and expenditure of time for practitioners, gardaí and other persons involved in the case.

Something I would like to see is a specialised unit dealing with all aspects of business crime. Such a unit would act as a direct link between business and the Garda Síochána. For it to be successful, it will be necessary to give consideration to various aspects from efficiency, education of gardaí involved in customer relations, giving advice and making assessments, to cost effective crime prevention measures.

The Garda Síochána do a tremendous job in their day to day work. I congratulate them specifically on the reduction in crime as reported in the latest statistics. However, for the Garda to fully understand the requirements of dealing with business crime, I recommend that a pilot scheme be introduced for middle ranking gardaí above the level of inspector. These gardaí could be seconded to private business as part of their professional development. Gardaí involved in policy making can only really understand the needs of business if they have spent a considerable amount of time in the business environment. Business related studies should form a greater part of Garda third level education. Organised crime within business is a considerable risk to supermarkets, hotels etc. A recent survey indicated that of 312 people, 79 per cent reported theft, vandalism, fraud, arson. Banks, financial institutions, large supermarkets, hotels, petrol filling stations etc. are vulnerable to highly organised crime. The cost of preventative measures is quite prohibitive. An alarm can cost up to £1,900; closed circuit TV can cost £5,800; hidden cameras cost up to £4,000; a time lock costs about £1,000; a floor safe can cost up to £800. The average cost of preventative measures for an individual company can be £2,500. The Garda Siochána do an excellent job, but a special Garda unit is necessary to deal with business crime which is becoming more organised. The improved road structure encourages criminals to come from the larger cities to rural areas, particularly to places where it is clear that cash will be on hand. The Minister should look at that. RGDATA, the Small Firms Association and others have indicated the necessity of dealing with business crime. I appeal to the Minister to consider giving tax relief on investment in security measures. There is a very fine margin of survival in business of about 2 per cent. A carton of cigarettes costs about £30 and prosecution in the case of criminal activity in this area is extremely rare. The Minister should look at the possibility of allocating a member of the Garda in a district to deal exclusively with business crime.

Rather than calling for new laws, the laws currently on the Statute Book should be rigorously applied to all forms of crime. The resources of the courts should be increased in terms of judges, back-up staff and facilities so that crime can be dealt with quickly. The Courts and Court Officers Bill, 1995, despite its merits, does not go far enough. One of the most significant ways in which offending while on bail could be reduced is by shortening the length of time an accused person is at liberty before trial.

The victims of crime, retailers and staff, suffer a major shock when their operation is broken into. It is an ever increasing problem. There is very little support for victims of crime. The Minister could look at the possibility of providing some resources for them. Traditionally it was the custom for business people to live over their business premises, but many are quite apprehensive about doing that now, owing to the risk that they could be taken hostage and made to hand over the weekend's takings.

My focus is on organised business crime. This is a growing phenomenon which is becoming more organised by the day. Crime is becoming big business and people who are involved in it are capable of getting away with it. It is costly. Any break-in causes a considerable amount of damage. Insurance often fails to meet claims owing to lack of evidence and the fact that it is hard to prove what amount of goods were taken, or to the inability of operators to pay the insurance costs which can be quite prohibitive as well. I am delighted to have had the opportunity to speak on the matter, and I appeal to the Minister to take my points on board.

Mr. Gormley

I thank Deputy Perry for sharing his time. In addressing this Bill, it is appropriate to question the whole philosophy and ideology underlying zero tolerance. Zero tolerance has become an expression of a set of beliefs around justice — that it must be adversarial, that it must be punitive, and that the number of prison places somehow indicates both the success of the criminal justice system and the potency of the Minister.

The political philosophy of the Greens expresses a different understanding of these issues, and in the area of criminal justice our political philosophy finds expression in the concept of restorative justice. Restorative justice views criminal conflict as an injury to personal relationships and the property of those involved. It replaces punishment of the offender as the basis for justice. It sets out to heal injuries of all parties involved in criminal conflict, victim, offender and community.

Crime is a serious form of interpersonal conflict involving concrete harms. Crime is only one type of interpersonal conflict. An action becomes criminal when there is serious injury to a person or property, and there is a failure to appreciate that the financial institution which fillets one's account for a few hundred pounds is just as much a criminal as the handbag snatcher who makes off with a tenner.

In theory, our criminal justice system administers just, proportionate corrections that have a deterrent effect. In practice it often fails to correct or deter, just as often making things worse as better. Few offenders leave our prisons reformed or rehabilitated. For the community the present system is costly both in fiscal terms and, more important, in terms of human destruction and degradation, and provides questionable value for money. Furthermore, parties to crime other than offenders, the victim and the families of offender and victim frequently perceive themselves as marginal to and disempowered by the justice process.

What has come to be widely realised in the period since the Victorian era is that prison does not actually work as a deterrent, as retribution or for rehabilitation. The current edition of the Bar Review unequivocally asserts that all our prisons are monuments of inhumanity. Members of the probation and welfare officers' union have demanded a moratorium on additional prison places. Despite these indicators, the political will is expressed in signing the contracts to implement costly programmes to build new prisons. This boosts the construction industry and adds to GNP but has no effect on the level of criminality in society.

There has been increasing discussion in recent years of the need for a more victim-centred criminal justice system that emphasises redress and the deliberative control of justice by citizens, but the debate in Ireland has suffered from the lack of an overall alternative model for a new criminal justice system.

In the past 20 years, an increasingly influential world-wide alternative has emerged in the form of restorative justice theory. Central to these models is the tenet that justice should be a process for making matters as right as possible rather than simply punishing offenders.

The first question our current system asks is: how do we punish? A restorative justice system asks: how do we repair the damage? Restorative justice is most commonly defined by that to which it is an alternative. Our current system incorporates justice and welfare models, retribution and rehabilitation. It is primarily punitive, not rehabilitative.

Restorative justice is a third model. Its underlying theme is restoration of those affected by the offence. The goal of the process is to heal the wounds of every person affected by the offence, including the victim and the offender. To this extent it involves daring to be humane. Its underlying perspective is that crime is primarily a violation of persons rather than an offence against the State. Restorative justice defines crime as, first, an offence against human relationships and, second, a violation of law.

In a restorative system, the primary focus is on human violations and the need for healing and restoration of individuals and relationships. As a system of justice, therefore, it is not punishment orientated but based rather on actions which attempt to repair the damage caused by the crime. More fundamentally, restorative justice is a philosophical framework. While the retribution model of justice is focused on public vengeance, deterrents and punishment through an adversarial process, restorative justice is concerned with repairing the harm done to victims and the community through a process of negotiation, mediation, victim empowerment and reparation.

A United Nations working party on restorative justice has adopted the following working definition: restorative justice is a process whereby all the parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future.

Restorative justice encourages the victim and the offender to be directly involved in resolving any conflict through dialogue and negotiation. In that way, the victim and the offender become central to the process with the State and legal professions becoming facilitators supporting a system which aims at offender accountability, full participation of both victim and offender and putting right the wrong.

As against our current model of retribution, punishment and revenge, the restorative model fundamentally reinterprets the nature of crime and the response to it. The social consequences of such a restorative justice model are that it could lower costs associated with incarceration, provide the victim with a sense that justice was served, provide offenders with a sense that the legal process has treated them fairly, redress the victim-offender relationships, make the community aware that it has a responsibility to both the offender and the victim and that it has ownership of the justice system. I ask the Minister to indicate his views on such a system which is currently being applied in New Zealand on a pilot basis.

As we are dealing with the drug problem, I am aware that one drug has been responsible for 330,000 deaths and more than 4,000 murders in the past ten years in the United Kingdom. That drug is alcohol and I believe we have ignored that problem.

Mr. Gregory

I have one criticism of the Bill. When the Minister first introduced this idea he was in Opposition and a member of the security committee and the drugs subcommittee. At that time I made the same criticism of the proposal which is that it does not discriminate and treats all drugs as if they were the same.

Debate adjourned.