Criminal Justice Bill 2007: Second Stage.

I move: "That the Bill be now read a Second Time."

From time to time this House is confronted with issues that go to the heart of our role as national legislators. On such occasions, a courageous response on our part can give leadership and galvanise society into clear and determined action. The Criminal Justice Bill 2007, which I am pleased to introduce today, provides the House with an opportunity to send a clear and unambiguous message that, as a society, we are not prepared to allow organised criminal gangs set about the destruction of families and communities.

In October, and following the enactment of the Criminal Justice Bill 2006, I said I intended to examine broader issues in regard to the criminal law. I established the Balance in the Criminal Law Review Group under the chairmanship of Dr. Gerard Hogan SC, on 1 November. I requested that group to prepare an interim report on the right to silence at the beginning of February.

In December there were a number of serious atrocities, including the murders of Alan Cuniffe, Anthony Campbell and others. It became clear some criminal gangs believed they could act with impunity. The Government agreed a major package of anti-crime measures in mid-December. These included a further increase of 1,000 in the strength of the Garda Síochána to bring the total to 15,000; sanction for 300 additional civilian administrative support posts for the Garda Síochána; the recruitment of the seven senior civilian posts recommended in the recent reports from Kathleen O'Toole and Senator Maurice Hayes; an increase in the retirement age for gardaí, sergeants and inspectors from 57 to 60; a proportionate increase in the targeted strength of the Garda Reserve from 900 to 1,500; increased staffing for the forensic science laboratory, the office of the Director of Public Prosecutions and the Courts Service; and a clear statement there was no limit on the funds available for the witness protection programme, which is provided for in statute.

I outlined I would bring a legislative package before this House also. Over Christmas we worked on this package and published the scheme in early February with a view to enacting the legislation this session. The Bill was published last week and we now have three weeks on Second, Committee and Report Stages to consider the Bill.

I acknowledge the Bill contains what some may consider tough measures but, as I have said on a previous occasion, the measures are both necessary and proportionate to the threat we face from organised crime. All of us, without exception, accept we cannot tolerate the growing threat from that source. It is not a threat that is confined to certain areas around Dublin; it is a threat that, increasingly, we are facing in every part of the country and in every strata of society.

Although additional staffing and equipment are essential, it is equally important our laws are capable of responding effectively and speedily to new patterns of crime. It is in that context I bring forward the Criminal Justice Bill 2007, which provides an extensive updating of the law in that area. As a result, the law enforcement agencies will be in a much better position to react to the serious situation we face as a society.

I will give the House an outline of the Bill's main elements. The Bill has 51 sections, in 9 Parts, with two Schedules. Part 1 deals with standard items such as commencement and interpretation. Part 2 — sections 5 to 23 — updates the law on bail. In a moment I will deal more fully with sections 6, 7, 11 to 13 and 19 in particular. However, I wish to mention the remaining sections in Part 2 introduce a number of important changes to the administration of the bail system, to permit, for example, the setting of non-monetary conditions in cases where that would be appropriate.

Section 6 provides that the applicant for bail may be required to provide a statement on his or her net assets and income, as well as details of any criminal convictions and any previous bail applications. Section 7 provides that a chief superintendent may give his or her opinion that the applicant, if given bail, is likely to commit a serious offence and that the application should therefore be refused. Sections 11 to 13 provide that a person granted bail may be subject to electronic monitoring if the bail is conditional on the person being or not being in certain places at certain specified times. Section 19 provides the prosecution with a right of appeal against the grant of bail or in respect of any conditions attaching to bail, where it is granted. Such a right is not currently available to the prosecution. This section also allows the High Court to transfer bail applications to the Circuit Court in cases where the case can be tried by the Circuit Court.

The net effect of the changes being introduced by Part 2 is the prosecution authorities will be in a position to mount a more effective challenge to bail applications where there is a likelihood of the applicant committing serious offences if given bail. Part 3 — sections 24 and 25 — deals with sentencing. Before I outline the nature of the proposed provisions I wish to make a few general remarks on sentencing. When it comes to this issue, my views are well established and were set out in a speech in 2004. I made the point that there has to be consistency in sentencing. When it comes to the mandatory minimum sentencing provisions applicable to section 15A drug trafficking offences, the will of the Oireachtas, which is also the will of the people, must be given effect. It is not window-dressing. It should lead to a ten-year sentence, with seven and a half years served taking account of remission for good conduct. It is not disproportionate or arbitrary but a conservative measure to reflect the values of society put in place for the guidance of the Judiciary and to stop people in the drugs trade from serving short sentences and resuming their criminal activities.

Some people may argue that a statutory scheme is not necessary for consistency in sentencing for drug or firearm offences, but if that were the case, there would be no need for legislation. The figures show that the policy laid out in 1997 has not been adhered to, and that is why I have had to make it more explicit. I cannot comment on individual cases, and I do not intend to start doing so, but people must be under no illusion that the people of Ireland expect coherent, rational and consistent sentencing from the courts, and if they do not see that, it amounts to potentially grave damage to the administration of justice.

As I said in 2004, my preference is the development of effective sentencing jurisprudence by the courts themselves, and I reiterate my strong view that, collectively and individually, the independence of the Judiciary is an important value enhanced rather than damaged by collective measures taken by the Judiciary to ensure consistency, rationality and coherence in sentencing.

My view remains unaltered. I do not want to be forced down the continental or USA model where the Legislature is forced to specify relatively inflexible sentences for every offence. To avoid that, there is a crying need for the development of sentencing guidelines by the Judiciary that are effective and are followed. It is not good enough to say that the DPP's right of appeal against judicial error in sentencing is sufficient to ensure consistency, coherence and rationality. I am strongly of the view that sentencing policy should be collectively formulated by the Judiciary and stress that I will give every backing through resources and legislation to achieve that end.

Section 24 provides that a person who commits any one of a list of scheduled offences and, within seven years, commits another of those offences will be subject to a penalty of imprisonment equal to at least three quarters of the maximum laid down by law for that second offence. Where the second offence carries a potential maximum of life imprisonment, a sentence of at least ten years must be imposed.

Section 25 provides that, upon release, a person who has been imprisoned for one of the scheduled offences may be subject to a crime prevention order. It will require the person to observe any conditions laid down by the court, which may include a condition that the person must keep gardaí informed of his or her movements. The order may last for up to ten years, or until the time when the maximum sentence for the offence, had it been imposed, would have expired.

The scheduled offences in Schedule 2 to the Bill are among the most serious known in criminal law and include all the offences typically associated with gangland crime, including, of course, drug-trafficking and firearms offences. In broad terms, they are racketeering offences, and the inspiration behind this is the racketeering-influenced corrupt organization, RICO, legislation in the USA. These provisions on sentencing are innovative in Irish terms and reflect the need to find new ways to meet the challenge that we face from organised crime.

Part 4, covering sections 26 to 29, deals with the right to silence. I will deal with sections 26 and 27 together. Section 26 inserts a new version of section 18 of the Criminal Justice Act 1984. Section 27 inserts a new version of section 19 of the 1984 Act. The provisions in sections 18 and 19, by virtue of coming under the 1984 Act, are applicable to all arrestable offences. Under the current provision, inferences may be drawn only if it is the arresting garda who asks the arrested person to account for, in the case of section 18, objects or marks or, in the case of section 19, his or her presence in a particular place, and the person refuses or fails to do so. That has proven to be a significant restriction on the operation of those sections.

Under the revised version now proposed for the two sections, any garda who is questioning the suspect may ask him or her to account for the objects or marks, or, as the case may be, his or her presence in a particular place. Several other changes are made that apply to both sections. It is proposed that the court may draw an inference only where the circumstances in question "clearly" called for an explanation. The court may draw inferences in situations where it is determining whether the person is guilty or considering an application for dismissal of the charge in the course of a trial, on the basis that there is no case to answer. An inference may be drawn only where it is, or is capable of being, treated as corroboration for any other evidence on the matter. A person may not, however, be convicted solely or mainly on an inference.

The court must not draw inferences unless it is satisfied that the accused had been given a caution in clear terms and had access to a solicitor before failing or refusing to answer the question put to him or her by the investigating garda. The court may take account of the point in time when the accused first gave an account regarding the objects or marks or his or presence at the place. An electronic recording of the interview must be available before an inference is drawn, unless the accused had refused to have the questioning recorded.

The new sections provide that the arrangements that they set out shall not prejudice the admissibility in evidence of the silence or other reaction of the accused in response to anything said in his or her presence relating to the conduct regarding which he or she is charged, where evidence about that reaction would otherwise be admissible. Similarly, neither section precludes the drawing of an inference from the silence or other reaction of the accused where an inference might be drawn other than on the basis of those sections. That is also the case regarding a failure by the accused to account for an object or mark or the condition of clothing, where the inference could be drawn other than on the basis of section 18.

Section 28 inserts a new section 19A into the Criminal Justice Act 1984. Two points must be made about section 19A. First, it relates to all arrestable offences. Second, it must be distinguished from sections 18 and 19 of the 1984 Act. Whereas section 18 deals with a failure to account for certain marks, substances or objects, and section 19 deals with a failure to account for being in a specific place, section 19A will deal with a failure on the part of the accused to mention while being questioned specific facts that he or she later relies on in his or her defence. In all other respects, section 19A is to be applied in the same way as sections 18 and 19. For example, it must be a fact that "clearly" called for explanation. In the same way as arose in sections 18 and 19, the failure to mention the relevant fact may give rise to an inference where it is, or is capable of being, treated as corroboration for any other evidence on the matter. However, the person may not be convicted solely or mainly on the inference alone. The safeguards regarding access to a solicitor and electronic recording of the interview also apply.

Since the new section 19A, along with sections 18 and 19, have general application to all arrestable offences, it is no longer necessary to have more specific provisions. As a result, section 7 of the Criminal Justice (Drug Trafficking) Act 1996 and section 5 of the Offences Against the State (Amendment) Act 1998 are being repealed. That is being effected by section 3 and Schedule 1 to the Bill. Section 7 of the 1996 Act and section 5 of the 1998 Act covered the same ground as the new section 19A, as is clear.

Section 29 amends and updates section 2 of the Offences Against the State (Amendment) Act 1998. Section 2 is more specific than section 5 of the 1998 Act, in that it relates to inferences that may apply in cases relating to membership of an illegal organisation. It would not, therefore, be appropriate to repeal it but it is being amended to include, in particular, the safeguards now generally available under sections 18, 19 and 19A of the 1984 Act in the case of arrestable offences. Those safeguards relate to the need for a clear caution, access to a solicitor and the need for an interview to be electronically recorded. The provision that the court may take note of the time or stage at which the person first gave an account is also included.

I am satisfied that the new situation improves considerably on the existing one and that this balanced set of proposals allows for reasonable and common sense inferences to be drawn but nevertheless also provides strong and enforceable safeguards.

Part 5, section 30, deals with the Misuse of Drugs Act 1977 and, in particular, section 27 of the 1977 Act, which deals with the question of mandatory minimum sentences. Deputies will note that section 30(2) of the Bill helpfully contains a table that restates the consolidated version of section 27. I will refer to that table to identify the amendments being made by the Bill. The first amendment is in subsection (3C). A new paragraph (a) is added. It is a “construction” clause that sets out in the clearest terms the intentions of the House and the Seanad regarding mandatory minimum sentences for drug-trafficking offences. It will be perfectly clear that the mandatory minimum term of ten years must apply in all but the most specific and exceptional cases.

In subsection (3CCC), a new paragraph (a) is added. At present, the subsection provides that in the event of its being a second or subsequent drug-trafficking offence, the mandatory minimum sentence of ten years imprisonment must apply, without consideration of any exceptional or specific circumstances. It is now proposed that, where the drugs are valued at €500,000 or more, the mandatory minimum of at least ten years is to apply, without reference to any other factors and regardless of whether it is a first, second or subsequent offence. The maximum sentence of life imprisonment remains unaffected by those changes.

Having discussed the matter with the Attorney General, I feel that specifying a value of goods is justified by constitutional jurisprudence, particularly in Canada, which says it is proportionate to have a less flexible approach where the value of the drugs is very large. I have no doubt the proposed approach is correct. I see the danger that, given the €15,000 to €500,000 limits, somebody will ask whether this is a hint to the Judiciary that it is free to ignore the ten-year minimum mandatory sentence. No such inference is warranted, however, or should be drawn. All it is saying is that, in the case of a second or subsequent offence, major participation in drug dealing is by itself incapable of being dealt with on the exceptional cases basis. I am satisfied that section 27 of the 1977 Act, as it is now set out, represents a clear statement of when the ten-year mandatory minimum is to apply. For the present nothing more needs to be said on this matter.

Part 6, sections 31 to 37, deals with firearms, and in particular with the circumstances where the mandatory minimum term of either ten or five years imprisonment is to apply. Each section repeats the construction clause I have already referred to in the case of drug trafficking. The new clause puts beyond doubt the intentions of this House concerning this matter, if anyone could have been in doubt about them in the past. A number of minor and technical amendments are also included that addresses issues arising from amendments made to the firearms legislation in the Criminal Justice Act 2006.

Part 7 — sections 38 to 40 — deals with amendments to the Garda Síochána Act 2005. Section 38 inserts a new chapter 3A into the 2005 Act providing for the establishment and functions of a Garda Síochána executive management board. The board will consist of executive members — the Garda Commissioner as chairperson, the Deputy Garda Commissioners and a member of the civilian staff of the Garda Síochána, at a grade equivalent to that of a Deputy Garda Commissioner — and three non-executive members. The three non-executive members, who will have appropriate management experience, will be appointed by the Government on the nomination of the Minister. The non-executive members will serve in an advisory capacity.

The function of the board will be to keep under review the performance by the Garda Síochána of its functions, as well as the arrangements and strategies in place to support and enhance the performance of those functions. In particular, the board will keep under review the arrangements and strategies in place to support and improve the performance of the organisation and the corporate governance arrangements and structures within the force. The board will produce six-monthly reports on the performance of its functions to the Minister and they will be laid before the Houses of the Oireachtas.

Section 39 provides for the replacement of section 42 of the 2005 Act.

Section 42 enables the Minister to order special inquiries to be carried out into Garda activities in certain circumstances. I have come to the conclusion that the provision should be strengthened and extended. Therefore, inquiries under the current section 42, which are limited to the administration, practice or procedure of the Garda Síochána, will be broadened to include "operations" of the force and "the conduct of its members". The person appointed by the Minister to undertake the inquiry may interview not just members of the Garda, but any other person who has information or control over a document or thing of interest to the inquiry. That person will also be empowered to apply to the High Court for an order of compliance backed up, if necessary, by the possibility of an order for contempt being made by the court where there is a failure to co-operate with the inquiry.

Section 40 provides for a number of amendments to the Garda Síochána Act 2005. Some of these amendments arise from suggestions made to me by the Garda Síochána Ombudsman Commission. The remainder are mainly technical in nature and involve minor changes to clarify certain matters that have come to light since the passing of the 2005 Act.

Part 8, section 41 is somewhat extraneous. It amends the Sea Fisheries Acts 2003-06. These amendments are necessary to strengthen controls concerning the detection of illegal fishing activity and enforcement of the law in that area. They are included in this Bill at the request of the Minister for Communications, Marine and Natural Resources, Deputy Noel Dempsey, and with the approval of the Government. The amendment provided for in paragraph (a) will allow a sea fisheries protection officer to apply to a judge of the District Court for a search warrant to enter and search places where there are reasonable grounds for suspecting that there is evidence of an offence under the Sea Fisheries Acts. The necessity for this amendment was highlighted by a recent case where sea fisheries protection officers were denied access to premises. Their legal right to enter was subsequently vindicated by the High Court. This amendment, within the normal safeguards that apply to such searches, will ensure that in future serious investigations will not be hampered or compromised by the unlawful obstruction of sea fisheries protection officers carrying out their duties. Paragraph (b) sets down a provision for penalties for offences committed somewhere other than on board a sea-fishing boat. That circumstance was not specifically provided for in the Sea Fisheries and Maritime Jurisdiction Act 2006. Penalties for offences under the 2006 Act committed on land, as well as at sea, will now apply in both circumstances. Paragraph (c) is merely a technical amendment following from the amendment in paragraph (b).

Part 9 — sections 42 to 51 — deals with several important issues. Section 42 amends certain provisions in the First and Third Schedules to the Garda Síochána (Complaints) Act 1986, which relate to the terms of office of members of the Garda Síochána complaints board and the appeals board respectively. It is necessary to provide that those members cease to hold office upon the repeal of the 1986 Act, when the relevant provisions of the 2005 Act are commenced.

Section 43 substitutes a new version of section 183 of the Criminal Justice Act 2006. That section deals with possession of articles intended for use in connection with kidnappings and false imprisonment. The scope of the section is being expanded to cover several other offences, namely murder, capital murder and drug trafficking. An offence is committed where a person has possession of an article in circumstances that give rise to a reasonable inference that they have it for purposes of committing one of the offences listed. It is a defence for the person to show that he or she did not possess it for the commission of an offence. Therefore, if a person had plastic bags, weighing scales and sugar piled up in a flat in Dublin, in circumstances that would give rise to a reasonable inference that they were preparing to engage in drug dealing, this section would criminalise that behaviour. It would be open to a person to say they had the items for some other reason — perhaps he or she is a baker.

Selling sugar.

Selling sugar or whatever.

Baking a cake, possibly.

Section 43 also provides for a new section 183A of the 2006 Act. Section 183A concerns the possession of cash, in the amount of at least €5,000, in circumstances giving rise to the reasonable inference that it is for use in, or in connection with, the commission of an offence. As in section 183, it will be a defence if the person can show they did not have it for that purpose. The offences listed in section 183A are murder, capital murder, drug trafficking offences, kidnapping, false imprisonment, blackmail, extortion, demanding money with menaces, and robbery. The penalty on conviction under either section 183 or 183A is up to five years' imprisonment.

These offences are being created because they will be useful in tackling those who assist and facilitate major gang bosses. People who have large sums of money stashed away for the gang bosses will find that they themselves now fall under the rubric of this law. In other words, I want Deputies to understand that this Bill aims to tackle gangland crime at all levels and at the edges. It is essential that we attack the support systems employed by the main players and these new offences will assist greatly in that respect.

Section 44 updates section 15 of the Criminal Justice (Theft and Fraud Offences) Act 2001 by adding robbery to the list set out in that section and to bring the defence of innocent possession under section 15 into line with sections 183 and 183A.

Section 45 amends section 6 of the Criminal Justice Act 1984. Section 6 deals with the taking of samples from arrested persons. The first amendment permits the taking of second or further samples where the first are damaged or are otherwise unsuitable. The second amendment involves a change in the rank of a garda who may authorise the taking of samples, from superintendent to inspector. However, I should point out that in the case of intimate body searches — involving, for example, the removal of underclothing — only a superintendent may authorise those searches.

A new section 6A is being proposed, which will permit the use of reasonable force in the taking of samples — finger or palm prints, or photographs — under section 6. The person must first be cautioned and the use of reasonable force must be authorised by a superintendent and supervised by an inspector. It must also be video recorded. Unfortunately a provision such as this is necessary because some people refuse point blank to provide fingerprints and must be subjected to physical coercion to do so. Deputies will agree, however, that this section contains strong and verifiable safeguards, particularly the video recording of the incident.

Section 46 replaces section 8 of the Criminal Justice Act 1984. In its current form, that section deals with the destruction of samples and similar records after 12 months, where no prosecution is taken or, in the event of a prosecution which ends in a dismissal or acquittal, within 21 days of the acquittal or dismissal. In other words, only samples or records relating to convicted persons may be retained. I am satisfied that such a limited approach is no longer justified in this day and age. The new section 8 is therefore based on the principle that all samples and records are to be retained indefinitely but that, in the interests of natural justice, some provision needs to be made for the removal and destruction of samples in individual cases. The new section 8 therefore provides a mechanism for the removal of samples. The result of this change will be that gardaí will be able to develop a comprehensive databank of information, which can be searched for intelligence purposes. This is essential for modern policing. Similar proposals are contained in the legislation being drafted on the establishment of a DNA databank.

Section 47 introduces new detention arrangements for persons arrested in connection with murder where firearms or explosives were used, capital murder, false imprisonment where firearms were used, or possessing a firearm with intent to endanger life. These offences are frequently linked to gangland activity and the extended detention time is, in the view of prosecuting authorities, necessary to locate and interview witnesses and suspects as well as to provide adequate time for the forensic examination of crime scenes. Some recent offences have seen people, arrested due to ongoing Garda surveillance, released from Garda custody at a time when new evidence relevant to their detention was only coming to light.

In the cases coming under this new section, persons may be detained for up to seven days. This is already the case under the Criminal Justice (Drug Trafficking) Act 1996. This means a person trafficking drugs is currently subject to these laws but not someone a drug trafficker sends out to shoot people, such as individuals who have not paid debts. Detention under that Act is under judicial authorisation and supervision after the first 48 hours and it will be the same under this new provision.

I have decided to limit the new power to the serious cases I have mentioned because I could not justify the use of such an arrangement for what are known as domestic murders. I believe we must tread carefully when authorising extensions to detention periods.

Section 48 provides for the rearrest of persons detained under section 47, in the same way that section 10 of the Criminal Justice Act 1984 allows for the same.

Section 49 ensures that certain sections of the Criminal Justice Act 1984 apply to persons arrested and detained under the new powers. The relevant sections provide, for example, for access to a doctor, if required, and access to a solicitor, and provide that a person must be released once the detention is no longer required or justified. Sections 50 and 51 make technical amendments to the 1984 and 1996 Acts.

I conclude by commending this Bill to the House. It is major legislation with transparent origins that is justified by and aimed at addressing the scourge of gangland crime. It is, as we have seen, a diverse Bill, covering many aspects of the criminal law. However, each part, other than Part 8, of course, has its own part to play in the fight against organised crime. There is, therefore, a unity in the Bill around the aim of defeating organised crime.

This Bill cannot defeat organised crime by itself. I do not wish to intrude on anybody's grief but last December I had occasion to stand at the foot of a bed in which a young man lay dead and to speak to his family. I made a firm promise to myself that the law would be adequate to deal with gangland crime, in as far as I can bring this about. I believe I speak for most Deputies when I say that by passing this legislation this House is doing its duty by people who would otherwise find their loved ones murdered or lying in mortuaries around the country, a scenario we cannot accept.

I am most worried that gangland criminals will turn their attention to the unarmed members of the Garda Síochána, an unarmed force. This is the nightmare we all face and if we do not give the Garda the legislative and physical resources to deal with this issue, members of the Garda Síochána may fall victim to the murderous intentions of these gangs. This legislation is proportionate to the threat faced by society and is in line with what I said I would do last December and the scheme I published in February. The right to silence issue has been canvassed and this legislation is in line with developments relating to other serious offences. I believe that this legislation should be passed.

I have been accused of putting forward this legislation in the run-up to an election. I could have left it, claiming it to be an inappropriate time and had another Dáil deal with the matter. If the events of last December were repeated during July, August, September and October the finger of accusation would point, not at me alone — I can take it — but at us collectively because we did nothing when everyone was agreed last December that legislative action was needed. The fact that an election is pending is not reason for any of us to give up on our day jobs and I know the House agrees. We must continue to do our jobs and I hope that over the next three weeks this legislation will pass. I look forward to a good debate on the legislation. I have always been amenable to persuasion in respect of all legislation that has come before this House and the other House when provisions can be improved. I have always made it my habit to listen carefully to the arguments of Deputies from every side of the House on improving legislation and I will adhere to that standard.

I ask the House to give this Bill a Second Reading and request that all Deputies in this House with a specific interest in this issue come forward with their views and participate in the debate on Second and Subsequent Stages over the next three weeks.

Action against gangland crime should have been taken long before now. It is refreshing that as late as last December the Minister saw that a huge problem relating to gangland crime needed to be confronted, but it would have been more helpful if he had come out of denial years ago and dealt with the matter in a considered and measured way over the years of his tenure as Minister for Justice, Equality and Law Reform.

The Criminal Justice Bill 2007 will be regarded by many as the last political sting of a ministerial wasp. I support the broad principles of the Bill. I support any efforts made to confront gangland crime. My main concern relating to the content of the Bill and the manner in which it is being handled is that its effects have been oversold by the Tánaiste. I do not accept that the provisions of this Bill will achieve anything like the outcomes he predicts as the answer to gangland crime. The Minister, who has attempted to portray the image of the tough man on these issues, has neglected to point out that in certain areas the changes introduced in this legislation will make life easier for those accused of crimes as opposed to those on the prosecution side trying to obtain convictions.

My main worry is that the haste in which this Bill was produced and the inadequate time given to debate it will produce legislation that will not be robust and watertight. I believe that a lack of prudence in this area may, and probably will, lead to challenges against its provisions later. I am afraid that criminals will walk free because of loopholes created by this slipshod manner of introducing serious legislation of this kind.

The Minister made a laughable comment in his closing remarks when he said he hopes that as many Deputies as possible will have an opportunity to contribute to this debate. How could that happen when the debate has been short-circuited into a few hours of Dáil time? The lack of time allotted to properly debate the issues raised in this Bill means gaps and lacunae will not be cleared up during the debate and we will end up with a case like that of Mr. A who walked free.

I support many of the ideas in the Bill. I have no objection to making life more difficult for criminals, particularly serious criminals who have been involved in gangland crime. I want to see the criminal justice system strengthened and equipped to deal with a new brand of criminal who is altogether more sophisticated and cunning, better resourced and equipped and more willing to subvert the course of justice at every opportunity.

The real concern is that the Bill will not achieve the objective of bringing a halt to these activities. I have a problem with promises that are made disingenuously, cynically and insincerely by a Minister who has repeatedly failed to make good on the raft of commitments and pledges he has made. I am very concerned that many of today's activities relate to his party's ailing position in the polls, and the manner in which this Bill is being jack-booted through the Houses confirms that fear. Legislation of this kind deserves serious consideration. The time allocated for Committee and Report Stages of this Bill of more than 60 sections amounts to fewer than ten minutes per section. How can this be considered adequate, even by those, such as me, who are well disposed towards placing robust criminal justice legislation on the Statute Book?

The Minister referred to the balance in the criminal law review group under the chairmanship of Dr. Gerard Hogan SC, for whom I have the height respect and whose views on any issue would guide and influence me. The group was asked to produce an interim report on the right to silence and did so in early February. The Bill was launched on the basis that its provisions on inferences from silence were related to the provisional recommendations of the review group's report. The Bill does not enact in law the report's provisional recommendations. The report also made clear that it was a provisional, interim document and the group planned to return to the issue of the right to silence and deal with it in its final report. Where is the final report? It is on the Minister's desk. Why do Deputies considering fundamental and serious issues of this nature not have access to the document? What is the Minister hiding? Is it not ludicrous that Parliament should be discussing serious issues of this kind when Deputies do not have access to the final report of the expert review group chaired by Dr. Hogan SC.

The interim report suggested the group would return to the issue of inferences from silence. Has it done so and, if so, did it take a new position on the issue? Is the Minister now aware of the injustice he is doing to his legislation in having the House debate this matter in the absence of the expert report? This is the worst example of ministerial megalomania I have ever encountered. The Minister has clearly decided, for whatever reason, to push the legislation through the House in order that he can go to the people with the words, "Me Minister, me strong." That is a ridiculous way to enact serious legislation in law. Is it necessary to remind the Minister of the consequences of his previous efforts to rush legislation through the House?

He also dismissed the Opposition at the time.

Opposition Deputies pointed out the dangers when they noted the basic premise that hasty legislation generally makes bad law. Has the Minister not learned anything? That is the background of the Bill.

Everyone recognises the crisis in crime rates over which the Minister has presided. Every person from Bandon to Ballsbridge has been directly or indirectly affected by crime or knows someone who has been affected by it. People no longer want to hear statistics recited. They know the number of murders is increasing, as is general crime in every category. Gangland assassinations have increased, serious crimes are rife, thousands more burglaries take place annually than in the year the Minister took office and the incidence of sexual assault and rape has increased. Violent crime, about which I am particularly concerned, has also increased, anti-social behaviour is more common and drugs more prevalent than ever and the number of headline crimes is 40% higher than it was five years ago. These figures are borne out by a European Commission report which shows that Ireland has the highest crime rates in Europe. An ESRI report published this week indicates that Dublin has experienced the largest increase in crime of any capital city in Europe. No one needs to be convinced of the extent of the problem over which the Minister has presided. The crime crisis will be his legacy in four, six or eight weeks when he is turfed out of office.

Is the Bill motivated by a genuine desire to deal with expanding problems in the areas of bail, sentencing and the right to silence or a need to significantly restructure the criminal justice system? On the basis of the Minister's performance to date, I doubt it. The decision at which I arrived, as a member of a party which believes in a strong criminal justice system, is to approach this legislation in the most positive way possible to try to produce legislation which will at least make a contribution. We could then review the legislation on our return to office after the election to ensure we have a proper, consolidated, considered criminal justice Act.

Over the years, the Minister could have dealt with many of the issues addressed in the Bill, for example, in the context of the two-year debate on the Criminal Justice Bill 2004, which eventually became law last year. He indicated, for example, that the witness protection scheme is provided for in law. In which law is it provided for? Every common law jurisdiction with a properly functioning witness protection scheme underpins the programme in legislation, has proper guidelines in place and adopts a clear, transparent approach. In many of these jurisdictions the witness protection programme succeeds in breaking open crime gangs, but that is not the case here. Funding allocated to the programme has been declining. While the Minister claims ample funding is available, a proper witness protection scheme needs more than money.

Need I cite comments made by Mr. Justice McCracken on the witness protection scheme a couple of years ago? He stated: "Undoubtedly the Witness Protection Programme was badly thought out and almost developed a life of its own". He added: "One of the most worrying features is that there seems to have actually been a programme." In November 2005, the Supreme Court, addressing the investigation into the murder of Veronica Guerin, stated:

The Witness Protection Programme in relation to the events in issue was the first such programme in the State and there is no doubt that it was not well organised or executed. It has deficiencies.

Section 40 of the 1999 Act refers to interference with a person taking part in the programme who has been relocated. Is this what the Minister means when he informs us the programme is grounded in statute?

On bail, I am pleased the Fine Gael proposal on electronic tagging has at last found a place in legislation. This issue also has a history. When Deputy Kenny first proposed the introduction of electronic tagging for persons on bail a couple of years ago, the Minister indicated the proposal was already contained in amendments to the Criminal Justice Bill 2004. When it was pointed out to him that this was not the case, he rubbished the idea and suggested it was laughable and unworkable and that Fine Gael was living in cloud cuckoo land for even deigning to propose it. He has now undergone a Pauline conversion and come around to my party's way of thinking. That is surprising because only recently Deputy Kenny highlighted the extent of the problem when he revealed that more than 6,500 suspected serious criminals were out on bail at the end of 2006. I am pleased, however, a provision on electronic tagging features in the bail proposals.

What steps has the Minister taken to implement the provision in the previous Criminal Justice Act for electronic tagging of those on early release? Why is this provision not being applied? Is this another case of the Minister accepting the theoretical case, while doing nothing to implement it in practice?

The Minister's comments on sentencing are interesting. We are all aware of his views in this area. He supports heavier sentences and has criticised judges when they do not impose them. Despite all the Minister's rhetoric, however, the reality is that 3,000 prisoners received early releases from prison last year, many due to overcrowding. Some of the reason for this is the closure by the Minister of three prisons without any provision for compensatory capacity in the short term. There are plans for the future, but the creation of additional prison spaces in five years' time will do nothing for the crime problems we face today.

The public is concerned at the lack of consistency in sentencing, which was highlighted in some recent cases. Why has no action been taken in this regard? The Minister has said he expects the Judiciary to do something about this. That is not the approach to take; we are Members of Parliament and we make the laws. Other common law jurisdictions have taken the correct approach, which is to establish a register of sentencing tariffs and guidelines as laid down by the Legislature. This does not trench on the independence of the Judiciary. The prosecution, for instance, can give its view on sentencing, as it should always do. More importantly, while judges can stray outside the tariff guidelines, they must provide an explanation when they do so. Why did the Minister not take on board international practice in this regard?

The Minister's press release of 13 February states that the new sentencing regime will apply to persons convicted of firearms, drug trafficking and other offences associated with gangland activity who reoffend within seven years. However, the Bill makes no reference to gangland activity. Many of those who commit the offences to which it refers have no connection to gangs or gangland activity. This is another example of rhetoric that does not match the outcome.

The Minister owes us an explanation in this regard. Some offenders should be imprisoned for a long time and if they reoffend, should be returned for an even longer time. There are others in prison, however, who should not be there. This is why we have an appeals process and judicial discretion. To ensure this balance is retained, the Government and Legislature of the day must set down what sentencing requirements are expected to be.

The system of three strikes and out has not brought any improvement to the criminal justice system in the United States. In some ways what the Minister is proposing is a policy of two strikes and one is consigned to a drug infested prison with minimal drug treatment services and little hope of rehabilitation. That may be appropriate in some instances but it is not so in others. This is an issue that must be carefully examined.

The Minister has not commented on his record in eliminating drugs from prisons. There has been much rhetoric about drugs-free prisons but the Minister seems to have missed every target in this regard. The latest target for action is mobile telephones. Is there not a case for ensuring drug lords and other serious criminals do not have access to mobile telephones in prisons and for imposing serious penalties for their use? Why is this not included in the Bill?

Provision was made in this regard last week.

Crime prevention orders sound like a good idea. Looking at how they operate in the United Kingdom, this is a measure worthy of discussion, debate and possible inclusion in the criminal justice system. The provisions in the Bill, however, seem to be thin on detail. What practical measures have or are intended to be put in place to enable the courts to decide whether to make such an order? What types of orders can be made, will a probation report be required and will the prosecuting garda be expected to advise the court on the matter? It seems this idea was taken off the shelf in the United Kingdom and hastily fashioned for inclusion in this Bill without any carry through as to how it will work in practice.

The Minister has made much of the provisions on the inferences that may be drawn from an accused's silence. This is one of the issues dealt with in the provisional interim report of the review group. We have not seen its final report, however, and do not know its conclusions in this regard. Sections 26 and 27 of the Bill amend sections 18 and 19, respectively, of the Criminal Justice Act 1984. However, the interim report of the review group recommended the repeal of these sections.

A striking aspect of the 1984 provisions and other existing measures relating to the drawing of inferences from silence is how rarely they are used. For example, section 7 of the Criminal Justice (Drug Trafficking) Act 1996 allows for the drawing of inferences from silence in the case of prosecutions for drug trafficking offences. Many, although by no means all, of those arrested for such offences remain silent, and those who do so are often the most serious players. However, these provisions are rarely if ever utilised. In some instances, this is because the necessary caution was not given to the accused by the investigating garda. An examination as to why the provisions of the 1984 and 1996 Acts are under-utilised would be helpful. This should be the basis upon which to improve the situation, rather than seeking advice from experts.

My concern about the right to silence provisions in the Bill does not relate to civil liberties. That aspect was discussed 23 years ago when such provisions were first introduced. My concern is that the provisions are cosmetic. I am not confident the measures introduced by the Minister will make a significant difference, but I am open to be convinced on this point provided there is time for a rational debate.

The standards set out in the amended sections 18 and 19 of the Criminal Justice Act 1984 regarding how inferences can be drawn under any of the three provisions seem to be significantly more favourable to the accused than both what the review group recommended and what is currently the case. The Minister has given no explanation for this; that would not fit in with his tough man image. If there is an explanation, it should be given. The reality is that these provisions are significantly more favourable to the accused than was the case heretofore. Instead of strengthening the hand of the Garda Síochána, therefore, they serve to weaken it.

The wording of the new section 19(1)(a) is less than clear. One of the main difficulties is that this area is substantially governed by international law such as the European Convention on Human Rights, to which Ireland is a signatory. Failure to word this section accurately will undoubtedly result in a dubious acquittal in the future. We were all shocked by the case of Mr. A last year but it will be only a matter of time before somebody accused of murder, rape or another heinous crime walks free under the provisions of this Bill because they are deemed to have infringed the European Convention on Human Rights or otherwise. This points to the need for extreme care in framing these provisions. That care cannot be given in the short time provided by the Government for consideration of the Bill.

On the issue of video tapes of interviews with suspects, the review group provisionally suggested "the Regulations be amended so that the video tapes are only made available as a matter of prosecution disclosure following the charging of the suspect". The particular reason for this was the abuse by crime lords in respect of tapes they seized from people who had been interviewed by the Garda. This important recommendation is not included in the Bill, so what happened? Will it be implemented? The Bill should deal with this serious issue.

Similarly, in its interim report, the review group recommended a statutory change in the caution provided for in the judges' rules. Why was this recommendation not taken on board? Again, we have not received an explanation for this omission. The Government insists on rushing through these provisions which are inconsistent with the recommendations of the review group. It also ignores important recommendations made by the group. Where does that leave us?

Why do we find ourselves in the position of having to deal with a hastily prepared Bill that is not properly drafted in some areas, that does not recognise the provisional recommendations of the review group and without access to the final report of the review group? Why did the Minister bother establishing the review group? He purports to act on the group's provisional recommendations and announced in one of his many press releases that he was grateful for its dedicated work and stated that the recommendations of the interim report on the right to silence had been incorporated in the draft legislation. However, he proceeded to publish a Bill that contradicts or ignores the group's key recommendations and has now asked the Oireachtas to approve it without sufficient opportunity to consider and debate it. This is either a deliberate attempt to mislead the Oireachtas and the people or a stunning example of carelessness and incompetence. Either way, it is not an acceptable way of doing business.

The Minister has promised the Bill will deliver much. He says it will strengthen our system and make life harder for criminals. I hope it does, but I remain to be convinced. Several provisions in the Bill have the opposite effect. However, the overriding issue is that without time to properly consider, debate and amend the Bill, it can never be as good as he claims.

I will conclude on this question. When Fianna Fáil and the Progressive Democrats have totally failed in ten years of Government, should anyone have any faith that they will ever achieve results in the justice portfolio, ever stem the tide of rising crime or ever restore people's confidence in a society based on law and order? This ten-year span of Government began with zero tolerance and it ends with the Minister's last efforts here to convince the country that after a record of failure as Minister for Justice, Equality and Law Reform, he has something to offer for the future. I do not think the people will be convinced.

I have read and reread the Minister's opening contribution to the debate and find it hard to recall ever reading a sentence introducing legislation that was more full of self-importance or that belied the facts so much. The opening sentence reads: "From time to time this House is confronted with issues that go to the heart of our role as national legislators". However, the conduct and handling of this set of proposals is designed to undermine our role as national legislators, to minimise our input, to debase the Houses and to act as if we merely rubber stamp proposals that come from the Department of Justice, Equality and Law Reform. This is an assault on the integrity of the Members, of the House and of the capacity of the House to enact legislation properly in the name of the people.

It is only nine months since the House completed its deliberations on the Minister's last comprehensive Criminal Justice Bill — his last comprehensive response to criminality. It took many months for that legislation to go through the Houses. We engaged in serious debate on it and the Minister himself produced more than 200 pages of amendments, grafting onto a Bill a quarter of that size huge volumes of new law. We took time and great care and effort then to try and put in place an Act that met the needs of 21st century Ireland.

It is clear that criminal law needs to be modified and amended from time to time. Amendment should be an organic and constant process. We need to take account of new developments and new threats to the people from criminal elements. However, the announcement of the definitive crime package again and again is another matter. This undermines people's confidence in our ability as legislators to provide robust, strong and proper laws to defend their interests.

I do not believe it was a response to a completely altered environment that brought this new enthusiasm from the Minister to ensure this legislation was not just debated in the House but is made law in a timeframe that most people would regard as unacceptable. If it was not such a response that prompted the Minister, what prompted the current package? I suggest that what prompted the current package is fear, not fear of crime but fear of the judgment of the electorate. The package was prompted by the CSO crime statistics for the last quarter of last year, which showed the Government has lost the battle against crime with the proposals it put in place.

The fundamental mistake the Government made was that in the immediate aftermath of the last election it reneged on its commitment to resource the Garda and provide the numbers promised. The consequence was the statistics provided by the CSO last year, which showed drug possession up by almost one third in a year, murders up by 20% while detection rates dropped, assaults up dramatically, and robberies and thefts down. The figures on murders show that from the beginning of 1998 — the period 1997-98 is one the Minister is fond of capturing — to last November there were 113 gun murders in the State. Of these, 58, or 51%, were regarded by the Garda as detected. However, proceedings were commenced in only 36 cases, less than one third, and convictions obtained in only 19 cases, less than 17%. It is alarming that convictions were obtained in only one sixth of those murders over the past ten years, the ten years this Government has been in office. The full figures for last year proved even worse. The year 2006 was the worst for gun murder in the history of the State.

That record is the reason the Minister could not face the people. He had given his best shot, but his efforts had failed and he needed some new presentation for the people. He established an expert group and, as my colleague pointed out, demanded that it report on an interim basis. The work is incomplete and we have not seen it. The imperative of getting it all produced before the election is too much to allow proper process, debate and deliberation from anybody, whether the expert group, the House, interested parties or the collective community. The Tánaiste was right about one thing in his speech, that we as legislators will not defeat crime. We are part of the solution but we must arm all sections of the community in common purpose if we are to defeat crime.

This Bill was sent to the party spokespersons last week. I received its 128 pages by e-mail which I had to then distribute as best I could to my advisers. It was published and sent to the other Members last Thursday, this day a week ago, on the eve of the St. Patrick's Day holiday. Under Standing Orders the most minor Bills are published a fortnight before debate. A decision was taken to guillotine discussion on complicated and important proposals on Second Stage today and tomorrow. We have only two hours for debate today. The full complement of principal spokespeople will not even get a chance to speak today. The remainder of Second Stage is to be made up on what is normally a non-sitting day, a Friday, when there will be no votes and when, as the Tánaiste knew, on the cusp of an election most people would have firm commitments all around the country. It is a subterfuge to pretend that hours of debate are being given to this Bill today which is an insult to this House.

The original proposal the Tánaiste presented was that Committee, Report and Final Stages would be taken on one day next week in five hours, without even a break for a cup of tea — wham bam, that was to be it. There is no opportunity for the views of groups outside the House to be heard. The Human Rights Commission is preparing a comprehensive response to this but it will not be available until next week. The commission, which has a role to play, particularly in considering criminal justice legislation, will give its view after the House has passed Second Stage and after the closing date for amendments to this Bill. This is a sham and a fraud, a travesty of proper legislative procedure.

I say that from my heart, not as a political charge because I respect this House and the Tánaiste in normal circumstances, and when he sat on this side of the House, shared that respect. I have been in contact with the Law Society and the Bar Council, both of which are preparing comprehensive responses. How can they in a matter of days gather themselves to give a thoughtful response on the implications of fundamental changes to the criminal law?

On the Order of Business this morning the Tánaiste asked where the Labour Party stands on this Bill. He said he was clear about Fine Gael's position on it. We will not oppose this Bill. We support in general terms the principles in it but we will seek to amend, improve and question the implications of some of those principles. This is what legislative debate means. I spent last night preparing my amendments because I was required to submit them by 11 a.m. tomorrow before I even heard what the Tánaiste had to say today, and certainly before the conclusion of Second Stage, which is inadequate and unacceptable. Our objective will be to improve the Bill to the best of our ability.

Part 2 of the Bill amends the law on bail, including the Criminal Procedures Act 1967, the Criminal Justice Act 1984 and the Bail Act 1997, which was brought in subsequent to the rainbow coalition's proposal for a referendum on bail. I will not have time to deal with 50 odd sections, nine Parts and two Schedules in the short time I have but had hoped to deal with them in detail over several weeks on Committee Stage. I have serious reservations about the nature, meaning and intention of section 7. It appears to be drafted on the assumption that opinion evidence by a member of the Garda Síochána in a bail application is inadmissible. That is clearly wrong. Whether a bail applicant is likely to commit a further offence if granted bail can be only an opinion, informed or otherwise. It is a matter of routine opinion evidence given in the courts on virtually every bail application.

Section 2(2)(b) of the Bail Act 1997 provides that in deciding whether to grant or refuse bail:

a court shall take into account and may, where necessary, receive evidence or submissions concerning—


(b) the nature and degree of seriousness of the offence apprehended and the sentence likely to be imposed on conviction,

That is opinion and speculation. To "apprehend" that someone might commit an offence is nothing more than to have an opinion that he is likely to commit one. The Labour Party has no difficulty with opinion evidence or it being admissible in bail applications, provided it is an informed opinion, in other words, that the opinion is reasonable and reasoned. That requires that the reasons that underlie and give rise to the opinion be made available to the court for it to decide.

I have a difficulty with the thinking which seems to lie behind section 7, that a court should accept an opinion as reasonable simply because a garda says so. That undermines a basic distinction between the function of the court and the prosecution authorities. It seems to be calculated to remove the existing requirement that a Garda witness should be able to give a court the reasons for his or her opinion as drafted. I am advised that the section states that proof that a chief superintendent has a belief is itself proof that the opinion is reasonable. There are two problems with that formulation, one, neither I nor those whom I have asked to check this can think of any precedent in law in which a witness's evidence to a court that his opinion about future apprehensions is reasonable becomes without further elaboration proof of the reasonableness of that opinion.

Comparisons have been made with section 3 of the Offences Against the State (Amendment) Act 1972 but those comparisons are false. That section allows a member of the Garda Síochána, not below the rank of chief superintendent, in giving evidence on a charge of membership of an unlawful organisation to state his or her belief that the accused was, at a material time, a member of that organisation and that opinion is admissible that the accused was then such a member. The section was and remains concerned with the opinion as to fact and the court can test the factual basis on which the opinion was formed. Since IRA members abandoned the earlier stance of refusing to recognise courts and began to engage actively in their defence in the Special Criminal Court that any form of cross-examination of a Garda officer as to the basis of his opinion or any form of defence evidence contesting the basis of that opinion was often sufficient to rebut evidence of a garda that the opinion was reasonable. As I understand it, there have been no recent cases in which a garda opinion about membership of an unlawful organisation has been sufficient, of itself, to secure a conviction. What is new is section 7 is that we are asked to stipulate that a garda opinion is not just evidence of the opinion but of the fact. The section seeks to ensure that the fact a senior garda holds an opinion becomes, of itself, proof that the opinion is reasonable without any need for the reasons underlying that opinion to be proven in a court. The garda is no longer required to provide some reason to the court why the opinion is held.

The second reason I query the new section is that it seems to be drafted on the basis of confusion over the respective roles of the court and prosecution. The 16th amendment of the Constitution allows a court to refuse bail where it is reasonably considered necessary to prevent the accused from committing subsequent offences. Quite clearly, having regard to the separation of powers and to judicial function, it must be the job of the court to decide whether such a course of action is reasonably necessary. In other words, it cannot be enough for a court to decide the garda considers it necessary to refuse bail, or even that the garda's opinion is objectively reasonable. The Constitution requires that the court itself be satisfied, on its own objective reasonable grounds, that bail should be refused. A court cannot be satisfied as to the reasonable necessity of refusing bail unless it is given reasons therefor.

To say a garda's opinion that refusing bail is necessary is proof of necessity and then say the fact a garda holds such an opinion is proof that the opinion is reasonable is to attempt to legislate to remove the judicial function in a bail application in its entirely. In other words, it would not be the court that would decide objectively on bail but a member of the Garda Síochána of a certain rank. I am advised there are significant and serious constitutional difficulties posed by the section in question. I hope we will have the time to deal with them in some detail.

Section 10 inserts a new provision in the Bail Act 1997 to allow a court, when admitting a person who is appealing a sentence of imprisonment imposed by the District Court, to make the recognisance subject to a wider range of considerations. I welcome this development and believe it is very important.

Section 13 allows for the operation of electronic tagging. My Fine Gael colleague mentioned this. What has happened since we last debated this issue? On 16 May 2006, during our consideration of the Criminal Justice Bill 2004, the Minister stated:

I shared the Deputy's ebbing enthusiasm [for electronic tagging] when I studied some of the figures. Rather than walk away completely from this, I thought it better to leave it on the Statute Book in the hope the GPS system would be improved and costs would come down. It is not something into which one would rush or to which one would grant an unlimited line of expenditure. One would need to be sure it would work before investing heavily in it.

He also stated expenditure would amount to €1,200 per month and expressed his concern over this.

This debate arose from the technical briefing note I asked the Minister to provide on the issue, which note he handed to the Opposition spokespersons. The GPS system on which the proposal is based has difficulty working in the presence of tall buildings, low clouds or high trees. This makes it problematic in Ireland. We would have to have Machaire Méith na Mumhan on a fine day. Why have electronic tagging if it does not work and if the Minister, as late as last May, had ebbing enthusiasm for it and would be unwilling to spend money on it?

Does the Deputy want it or not?

Has there been some great advance technically? I certainly do not want another white elephant.

The current Government's dallying with electronics should have warned it sufficiently about wasted money. If the project is unworkable, the Minister should tell us. If there has been some technological breakthrough since last May and the tall buildings, high trees and low clouds no longer affect the system and it is hunky-dory, he should let us know. It might then be a practical and useful device but if it does not work it is a sop.

It seems we have a raft of great, strong measures but, when examined under the microscope or even through good looking glasses, they are not so robust at all. We need to tease them out in detail, particularly if we are to spend public money on them.

My colleague, Deputy Jim O'Keeffe, asked the very good question as to whether any money has been spent on electronic tagging since the enactment of the Criminal Justice Bill 2004 last year. Is the Minister just shoving in the provision in case Fine Gael gets uppity again, thus exposing him? I am interested in finding out.

Part 3 of the Bill provides for new sentencing arrangements.

If Deputy Howlin believes electronic tagging is a bad idea, why does he not say so when it is advocated by Deputy Jim O'Keeffe? Deputy Kenny made speeches at his Ard-Fheis about how we will tag people.

I am committed and the Minister is not.

The Deputy is committed to it regardless——

The Minister is exposed; that is his problem.

Deputy Howlin is doubtful about it. Since he will be the justice spokesperson if the Rainbow coalition ever gets into power——

The Minister is utterly exposed, almost indecently.

He will not listen to Deputy O'Keeffe, who will be up in the back benches wanting one of these things.

I am grateful that, for the first time in this one-and-a-half-hour debate, the Minister is engaging with the Opposition. I have obviously touched a raw nerve. If the Minister believes this is a daft proposal he should tell us.

I am asking the Deputies to be consistent. If they were forming a Government, the Deputy would tell us what they believe. One of the Deputies says it is a good idea and another says it is daft. Let us hear the truth.

Will the Acting Chairman control the Minister before he gets carried away?

The Minister is exposed as a fraud; that is the long and the short of it.

Can I explain how the system works?

If the Deputy comes up with the ideas——

Deputy Howlin to continue without interruption.

I hope I will get injury time for all this.

I will explain to the Minister how the system works. He is the Minister for Justice, Equality and Law Reform. He makes propositions and explains them to the House. He should not ask the Opposition to invent its own laws so he can scrutinise them. When we move to the Government benches, we will make the law and he can comment on it. As and from today, and for the next couple of weeks, he will get to make a few proposals and we will scrutinise them. That is how the system works and if he does not mind, he should please answer my question on electronic tagging. Does his contention on Committee Stage last May that the system does not work in the presence of low clouds, high buildings and high trees still pertain or has there been a technological breakthrough, such that the form of electronic tagging he, rather than the Opposition, is now proposing now works? Is he committing public funds to it, bearing in mind that he told the committee he was unwilling to do so last year? Are we still waiting for the technology to improve, as he told the committee last year? Is he including the provision on the Statute Book in the hope the system will be improved and costs will come down? I expect him to refer to this in his conclusion.

Consider the sentencing provisions under Part 3. Section 24 provides for certain scheduled offences. The court must impose at least three quarters of the maximum sentence allowed for those offences as long as they fall into certain categories. This applies where the person has previously been convicted for a scheduled offence and sentenced to 12 months' imprisonment and where the offence was committed within seven years of a previous conviction. The individual in question must be over 18. I have given this much careful thought and find I am not at odds with the Minister in respect of it. We both start from the same position. I certainly do not like the American system, where there is a prescriptive legislature that outlines the parameters within which the judiciary must operate.

I admit that ten years ago I opposed mandatory sentencing because I believed the Judiciary should consider every case individually and, by and large, I felt it was doing a good job. I have changed my view on that, however, with the upsurge in violent crime. It is necessary to send a clear message to those who might perpetrate such crime that there is an inescapable consequence if they are caught.

I have a horror, however, of the American system of three strikes and you are out.

I am not proposing that.

I know, that is why I am not at odds with this proposal. The notion that people who commit a minor offence face life imprisonment without parole is horrific.

We must tread carefully. I do not oppose the Minister's suggestions, particularly on crime prevention orders, which are an extremely valuable development. I would like time on Committee Stage to find out the Minister's thinking on this, there might be instances where I would be more draconian. The idea that the perpetrator of a vicious sexual offence should be barred from approaching the victim after release might be considered instead of a timeframe, although there may be constitutional considerations in a timeframe.

Post-release conditions, however, are a good development and serve the view of victims who have been excluded from the criminal justice perspective for a long time. Once a victim presents him or herself to the gardaí, the prosecutorial system takes over and he or she is a mere witness in the court. We saw an horrific case lately where the victim had to travel to court on the same train as the accused, who was later found guilty but was also able to share the train back on the way home. That would not be dealt with by these provisions but the notion that we can assign orders that are binding on individuals who have served a sentence so it is understood there are other social requirements for those who have perpetrated heinous acts is welcome. I hope we have time to develop this on Committee Stage.

I will not have much time to develop Part 4, the inference to be drawn in certain circumstances. Perhaps it is as well to deal with that on Committee Stage but I do not have any difficulty in the broad stroke of what the Minister is suggesting.

In his own contribution, the Minister touched upon the issue of inserting in Part 5 the mandatory minimum sentence to be imposed on individuals convicted of a first offence for the possession of drugs with a value exceeding €500,000. We could debate the figure chosen but the issue of concern to me is that a threshold sends the message out that below that threshold is not serious. Talking about this might send a signal to the Judiciary but we may need to include something in the section that states notwithstanding this mandatory requirement of the Oireachtas, it is not to be taken that we regard anything below this as less than serious. It is difficult to strike a balance in this area but I share the concerns about it.

Judicial conduct has fallen off the agenda since the Minister's predecessor's proposal for a referendum. We must return to that because it is a better way to go than to corral judges into a certain way of behaving. Much work has been done on it and we must debate it.

There are important issues to be debated in this Bill and I support the bulk of them. I want, however, the time and space to do my job by giving it proper and careful scrutiny so that when we enact legislation, it is good legislation where we have achieved our objectives and where we have not made mistakes.

I welcome the opportunity to speak on this Bill, the thrust of which I welcome, although I can see the politics behind its introduction at this time, a few weeks before the election. By so doing, the Minister has made a valiant attempt to remove from the political agenda some of the issues that have been of concern to the public for some time.

I said I welcome the thrust of the Bill but I wish to place on record my belief that there is already much legislation that, if implemented, would make an enormous difference to society. The Minister must still answer many questions about this negligence during the election campaign. Questions will be asked about the lack of resources for gardaí that would allow them to do their work as a professional police force. It is always a question of resources.

I expect civil libertarians will have some problems with this Bill, mainly because it impacts on criminals. I remind those people that civil liberties are a two way street and they are just as important to those law abiding citizens who suffer at the hands of criminals. As in all walks of life, balance is needed and extremes on either side of the argument are not appropriate.

I would like to make a general point on how this Bill is going through the Dáil so quickly. It is wholly inappropriate to rush legislation through the House because, inevitably, it leads to further problems. Having said that, there is a degree of hypocrisy from the two largest Opposition parties on this issue. There is no great clamour from speakers on behalf of those parties.

Part 2 of the Bill gives the court the option to impose electronic monitoring as a condition of bail. That is a welcome provision because too often we hear of those on bail committing further offences at will, often with tragic consequences for the victim. When I hear of such cases, I ask how the law and order machinery of the State is so ineffective in dealing with such situations. Electronic monitoring will help control this unacceptable situation.

I also welcome the provisions in the Bill that tighten up the bail regulations, making it harder for a person to get bail. This approach is required because often we hear judges say they have no option but to grant bail in certain situations under the existing provisions.

The Bill also provides for a new sentencing regime and harsher sentences in certain cases. I have reservations about circumstances where a person is used by a drugs lord to transport drugs. This person may be easily led or operating under extreme duress from the drugs lord. There are many situations where a person could be used as a mule against his will. Under the provisions of this Bill, however, that unfortunate person will get the ten years in jail if caught in possession of more than €500,000 worth of drugs, while the drugs lord gets off scot-free because he is not caught in possession.

I agree, however, with the concept of specific sentences being set down for a range of offences. Mr. Justice Flood was recently quoted as saying that mandatory sentences interfere with the constitutional independence of the Judiciary. Mr. Justice Flood and other members of the Judiciary who would like to lecture politicians should first get their own house in order and strive to have consistency in sentencing, and in that way earn the respect of the public.

When publishing the Bill the Minister was quoted in the media as saying he would welcome a constructive debate. The Bill was published last week, although it was expected for some time, and therefore the time for the debate is limited in terms of assimilating what is comprehensive legislation. That type of constructive debate must take place and it is unfortunate that is not the case.

It cannot be overstated that the criminal justice system is the cornerstone of any democracy. Changes to it not only must be well drafted but fully considered. If there is an area of legislation that should not be subject to a guillotine it is criminal justice. The essence of our criminal justice system is that we commence with the presumption of innocence. I value that and I hope everyone here values it.

The consequences of inadequate scrutiny of legislation are obvious. When it came to light in recent weeks that last year's Criminal Justice (Sexual Offences) Act that was rushed through the Dáil had inadvertently deleted the section dealing with grooming of a child for sexual exploitation, the Minister's first reaction was to highlight the vast number of legislative provisions that could be used for prosecution purposes. Can the same be said of this Bill?

The legislation is reactive in that it is part of a response to an escalation in gangland crime, but resources are an equally important response. For example, the courts are significantly understaffed. The accused often spends years waiting for a trial. Reducing that time would at least limit the need to tighten bail laws. There is a limited availability of prison spaces. When sentences were limited and the bail laws were tightened in the United Kingdom, additional pressure was placed on limited spaces.

Legislation alone will often make little difference without practical resources, which is about enforcing existing laws. It is also about detection because there is no greater deterrent to a criminal than being detected and Garda resources are important in that respect. Additional pressure is being put on gardaí as a result of the administration of anti-social behaviour orders, for example, and the new crime prevention orders. Garda personnel are required to manage the change proposed under section 46 replacing the presumption of the destruction of finger prints, palm prints and photographs with the presumption in favour of retention and to construct databases etc. There is a resource implication in all those changes that takes personnel away from the area making the most difference, that is, detection.

I have major concerns about the changes to the right to silence. We can all conceptualise in terms of the people who misuse the right to silence but it exists as a protection. If that provision is transposed into law for use against people who are vulnerable, those at the lower end of the criminal fraternity or even innocent people facing charges, it must be given serious consideration. The Minister established a group to give expert opinion on that area but bypassed their final opinion. That is similar to the situation where legislation could not be brought forward on the issue of management companies until the Law Reform Commission produces its final report. The comparison is incredible.

I am not against imprisoning those who are a threat to society but people are being locked up for civil debts such as not paying their television licences. If the focus of attention is to be on using the gardaí and the prison spaces appropriately, a range of measures must be taken to free up spaces. An extended use of the Criminal Assets Bureau, for example, in terms of unexplained assets would be an effective use of personnel in creating a deterrent without eroding areas that stray into the area of civil liberties.

I take issue with my Independent colleague regarding civil libertarians being described as people who are in some way in favour of the criminal. Being a civil libertarian is like a badge of honour for me. Civil liberties are not suddenly eroded in a wave like a tsunami. They can be chipped away, so to speak, and one can find oneself living in a country that is unrecognisable. We must be precious about our civil liberties.

The Irish Council for Civil Liberties referred to the extension of the number of categories in which the right to silence will be included. There is evidence that the seven days detention provision is rarely used, yet it is being extended to other categories. That is difficult to understand. There is a perception that a very tough measure is being put in place but unless it translates into some practical measure that makes people feel safe on the streets, we will not be thanked for introducing tough legislation that makes no difference to issues like gangland crime.

We must use existing resources and laws in a more effective way but I am concerned we are burdening the gardaí with an increase in the number of administrative tasks such as dealing with criminal protection orders, CPOs. Even with something like the Internet, it is not possible to monitor all the areas that require monitoring and that takes up a great deal of time when the most effective deterrent is the detection of crime.

Tá mé féin agus mo pháirtí go huile is go hiomlán i gcoinne nan-athruithe atá luaite sa Bhille seo.

The Bill is draconian in nature and a dangerous gift to an inadequately reformed police force. It is unnecessary and unjustifiable because it curtails the rights of citizens and, crucially, does not address gangland crime or the related drugs crisis. The way to tackle gangland crime and the drugs crisis is to ensure that the Garda Síochána is properly resourced, that it has radios that work, access to the Internet, Garda stations that are fit to be occupied and cars and other equipment required for fighting crime. A series of legislation introduced has failed to deliver. Only last year we passed the Criminal Justice Act 2006. This Bill will amend that Act because the Tánaiste clearly believes he did not get it right last year. The Garda Síochána Act 2005, which is less than two years old, is also being changed. I can guarantee that the Tánaiste will get this one wrong and it will need to be changed particularly because of the haste in which he is introducing it and because of the undemocratic and ill-advised nature of the proceedings thus far.

The Bill will make a major change to the basis of our criminal justice system in areas such as the right to silence and mandatory sentences. The Tánaiste has not had consultation with the relevant groups. His review group to examine the balance in criminal law, which was announced in November, had the shortest period for submissions of any such group of which I am aware. Considering the remit of the group and the complexities of the issues involved, I expected considerably more time for that review group. That it only received 21 submissions speaks volumes in that regard. The Tánaiste published the heads of the Bill on the same day as he published the interim — not final — report. He has moved ahead of his own review group in introducing the Bill. While I am not saying that I agree with all the findings of the interim report, at least there was some consultation. There is no committee before which groups could appear and explain their opposition to the changes or even express support, if the Tánaiste managed to find any such groups in the State.

The Human Rights Commission, which has a specific oversight role in identifying failures in proposed legislation, has not even had the time to produce its comments on the Bill and we will not see those until next week, such is its workload, but such also is the haste of the Tánaiste. Even at this stage I urge him to slow down. The Act we passed last year has not had the effect the Tánaiste desired. The effect has not been seen and will not be seen for a number of years. Another Deputy once rightly described the Tánaiste as a serial legislator. His Department has produced more legislation than that of any other Minister. Indeed it may have produced more legislation than all the other Departments together. This merely indicates that the Tánaiste is good at producing legislation. However, he is not good at taking action. In the same period the crime figures have skyrocketed in some aspects.

Yesterday the Supreme Court increased the damages payable to Mr. Frank Shortt to €4.7 million because members of the Garda Síochána committed perjury and he ended up in prison. Responding to this outcome, the Tánaiste rightly said "Anyone who strongly supports the Garda Síochá entitled to feel a great sense of shock at what happened to Frank Shortt". The problem is that people are not shocked at what happened to Mr. Shortt because it was not a one-off case. There is a long list of other such cases, including those uncovered by the Morris tribunal and others going back to the Sallins train robbery scandal. There have been other cases in this city and many Deputies have been lobbied on behalf of people who have been abused while in Garda custody and elsewhere.

The Tánaiste also said that the treatment of Mr. Frank Shortt by the Garda means that there is no alternative but for the Government to pursue its radical reform. How can he reconcile the treatment of Mr. Shortt with his understanding of reform as expressed in this Bill and last year's Criminal Justice Act? Reforms extending unchecked Garda powers are beyond me. Speaking on the Order of Business this morning the Tánaiste rightly recalled a call for urgent action following the series of violent killings last November. I was one of those making such calls and have continued to call for urgent action to address gangland shootings and the drugs crisis in this city. However, the focus should be on communities and not on legislative gimmicks. Concentrating Garda resources on communities will have a greater effect than what is proposed in the Bill. Communities are crying out for better policing, not more police powers or the introduction of variants of existing offences, but the enforcement of existing powers to prosecute existing offences.

The use and deployment of Garda resources is a key issue. Successful convictions are determined by the work put into building cases and the availability of witness statements is influenced by the relationship between the communities and the Garda. Garda resources must focus on the two key areas of investigative work of gathering testimony, financial and physical evidence, and in particular community policing. Ten years ago the report on Garda effectiveness and efficiency recommended the civilianisation of appropriate tasks to permit the redeployment of fully trained gardaí. Further reports reinforced this recommendation in 2001 and 2006. While some progress has been made it has been insufficient by comparison with other EU countries. It has taken the high level of violent killings to force the Government to indicate that these recommendations will be implemented in full as quickly as possible.

The State needs to strip away the profits made from gangland crime. While it does great work at times, the Criminal Assets Bureau appears to be little more than a political tool, misused in cases that should be handled by the Revenue Commissioners. The Criminal Assets Bureau should prioritise the pursuit of drug barons great and small until the financial incentive to be gained from involvement in the illicit drug trade and gangland crime is diminished absolutely. The Government's response to gangland crime represented by the legislation before us does not do what is necessary. The Bill is more to do with getting the populist vote than in getting tough on criminals.

Is the Deputy suggesting the Criminal Assets Bureau should lay off Border smuggling?

The Criminal Assets Bureau should not be used as a tool to carry out tasks of the Revenue Commissioners. It should focus on the purpose for which it was originally established and not for chasing up——

The answer to my question is clearly yes.

It should focus on drug barons, criminal gangs etc. That is as the Tánaiste said. However, it has been misused for the purpose of obtaining revenue.

I do not have time to concentrate on a number of provisions in the Bill and probably will not have adequate time on Committee Stage to go into detail because the Tánaiste is rushing the Bill, as per normal. The removal of the right to silence for some people needs considerably more thought. Dean Lyons would not have been abused in the manner he was if he had used his right to silence. The issue of electronic tagging merits considerably more discussion. I debated some of these matters with the Tánaiste at length on the Committee Stage of last year's Criminal Justice Bill. The Tánaiste was perplexed and confused when we went into the technical details of how electronic tagging cannot and will not work, and would not be cost effective here. It represents a retrograde step in our criminal justice system.

I am always concerned when a Minister lashes in legislation a matter of weeks prior to a general election, particularly when that Minister will have been on the go for five years by the time the legislation is enacted. It is dangerous to pass legislation quickly through these Houses at the 11th hour. I am extremely concerned at the Tánaiste's growing isolation from his former peers in the Law Library and elsewhere. While I am not losing sleep over the Judiciary's snub to the Tánaiste at its Christmas drinks party, I am concerned when the chairman of the Law Society refers to the great danger of this legislation. No doubt he chose those words carefully. It is sobering to hear the president of the Law Society refer to the great danger to the rights of citizens if this legislation is rushed into law. It is rare that the head of a professional institute would use such strong language.

One of the great difficulties with this legislation is the modification of the right to silence, which has a long and honourable history within many institutions and jurisdictions. I note, for example, that in Australia the courts recognise the right to silence as an important common law right, and have always done so. Closer to home, in Germany, under the criminal procedure code a suspect, arrested or not, must be informed before any interrogation about his right to remain silent.

Debate adjourned.