Amendments Nos. 1 to 7, inclusive, are out of order.
Criminal Justice Bill 2007: Committee Stage.
I move amendment No. 8:
In page 5, between lines 23 and 24, to insert the following subsection:
"(3) An order under subsection (2) in respect of section 11 may not be made until the Minister is satisfied as to the technical accuracy of the technology required to operate that section.”.
I preface my remarks, as invited by the Ceann Comhairle, by stating this is an unreasonable way of dealing with legislation. I checked until 7.30 p.m. last night but a consolidated list of amendments was not available. Through the hard work of the Bills Office, it was available in electronic format at that point but the printed version was not available until this morning. I am working from the electronic version I received last night. This is unsatisfactory. The inadequate consideration of the Bill is illustrated by the comments made by the Minister on the Order of Business. He stated he was willing to accept amendments submitted in writing by external lawyers and that he was willing to amend the Bill on foot of representations he received. Members have not seen them and I do not know what points external bodies will make. Sections of the Bill will not be reached in the debate in this House and important parts will be backloaded into the Bill. I have enjoyed the Minister accepting amendments and debating issues as he normally does. The structure of this debate does not lend itself to such a procedure because we are not at the Select Committee on Justice, Equality, Defence and Women's Rights and do not have time. Whole sections of the Bill will not be debated. That we will have a debate on Report Stage on which the confines of the debate will be much narrower is no excuse.
The amendment seeks to insert in section 1 a subsection relating to the electronic tagging of individuals afforded bail. We will deal with that issue in some detail when we come to section 11. I raised this matter on Second Stage. The Minister outlined the two forms of electronic tagging — a fixed location tagging system, whereby an individual is monitored in respect of his or her proximity to a particular point, used in respect of a curfew for example, and the global monitoring system which is better in monitoring the location of an individual. The latter does not work effectively, as the Minister has stated. During the debate on the Criminal Justice Act 2006 the Minister indicated that there were difficulties in respect of a tagged individual's proximity to tall buildings, high trees, low cloud and in certain climatic conditions. I asked if there had been remarkable changes in the technology since we last debated the matter in May. I did not receive a direct reply but do not believe there has been. If electronic tagging is not to be seen as a token gesture, there must be satisfaction that the technology works in advance of bringing the section into operation. If the view is that the section is not operational, the courts will not rely on it and this will be another example of legislation that sounds good but has no effect. The import of my amendment is that we can be confident the technology works and the courts can be satisfied that, if they resort to electronic tagging, it will work. They will not have resort to it if they believe it will not work. Even if the Minister is well disposed towards using the technology, affirmation would be helpful in that regard.
I have been associated with the view in favour of electronic tagging for a long time. I supported its inclusion in the Criminal Justice Act 2006. It was included, despite the reservations of the Minister. I advocate a provision to allow discretion for judges to release people on bail subject to electronic tagging. If there is a choice between keeping a person in custody and releasing him or her, it is preferable to release the person if one has a reasonable assurance that he or she will not commit further crimes. Considering the 5,000 headline offences committed every year by those on bail, electronic tagging is a way to apply technology in pursuit of the public policy on the prevention of crime. I see a role for electronic tagging, particularly in respect of an assurance that a person will not commit further offences while on bail. One must consider the link between the policy, the statutory provisions and judges' discretion and practical implementation. I seek an explanation from the Minister. I sensed a reluctance on his part to accept electronic tagging, particularly in comments made during debate on the Criminal Justice Act 2006. The points raised by Deputy Howlin from the viewpoint of implementation certainly deserve a full answer. Essentially I want to know what the Minister has done as regards making provision for electronic tagging in a practical sense. It is not as if this was brand new technology. My understanding is that electronic tagging has been in operation since 1984, when it began in Canada. Since then it has become a common feature in many jurisdictions, including Australia, many states in the US, in Portugal, Spain and the Netherlands. It is a common feature of the criminal justice system in many countries. The question is why Ireland has not got it since we went through this process in the context of the Criminal Justice Bill 2004, which eventually became law last July, if we now propose to enable judges to have the discretion to release people on bail subject to monitoring.
The system of house curfew is well established in other countries, is inexpensive and can be readily and easily put into operation in Ireland. Half a loaf is better than no bread. If that is possible why can measures not be put in place so that as soon as it is cleared through the Oireachtas, hopefully after proper debate, judges can immediately make orders pursuant to its provisions? I want to hear the Minister's views on house curfew. Can we immediately make that system operative and on general monitoring, which involves tracking the movements of people, what is the up-to-date situation in terms of the technology involved? I accept that is more difficult and that there are deficiencies in this area. How far has the Minister gone with that particular aspect?
If we are taking electronic monitoring on board as part of our public policy from the viewpoint of crime prevention in particular, obviously the implementation process is of great importance and I should like to hear an up-to-date report on that from the Minister.
I support the amendments on the basis that in some ways I do not believe the Minister will be satisfied with the technical accuracy of the technology. I am opposed to tagging of people on bail, as I opposed the tagging of released prisoners as a system for keeping track of people who have been convicted. Greater investment in the probation and welfare system would probably serve much better those who have been convicted and it would be more cost effective. I argued that matter when this was being discussed in the previous Bill. We argued against going beyond that, as did the Minister. Several months later, however, he is presenting proposals to the House on something he has argued against and about which he had major concerns last year. I do not see what has happened in the meantime to change his or anybody else's mind in that regard.
I find it strange that my amendments were ruled out of order as being contrary to the purpose of the Bill. My intention was to ensure that if this Bill, as enacted, was to come into operation, it would be conditional on the proposals I tabled in those amendments. This amendment also has an element of conditionality attached and yet it was accepted so that is bizarre. The conditionalities I mentioned are reasonable and if the Minister is open to accepting or debating reasonable amendments, he should look at them, despite their being ruled out of order, and perhaps consider taking them on board for Report Stage. We have passed several laws since I became a Member of the House, which I believe were retrograde. They have not been operational for a sufficient length of time for us to be able to form an opinion as to their effectiveness, yet the Minister is extending some of those provisions in this legislation. At the outset, we should see whether previous legislation is being used and is effective. If it is not effective, we should look at it. I do not believe that most of the provisions passed last year under the Criminal Justice Act have been used. The Minister might present the evidence he has in support of his position to the House so that we may, on the basis of some facts and figures, decide on the way forward.
I outlined on Second Stage my virtual total opposition to this Bill. There are some slight parts that I accept, but in total this is not the way forward. If the Minister wishes to tackle gangland and drugs related crime head on, he would do much better to ensure that members of the Garda Síochána can communicate with each other by radio rather than personal telephones. They should have access to the Internet at each station and stations should be of a proper habitable quality. Rooms, including interrogation centres in stations, should be fully equipped and operational for video recording.
There should be a greater presence of community gardaí. There is a problem within the Garda, because it is difficult to get serving officers to remain as community gardaí as it is not considered sexy enough or whatever. That culture within the Garda Síochána needs to change because one of the most effective ways of tackling crime is to increase public confidence in the Garda and to promote greater interaction with gardaí in the community. Enormous strides have been made in this regard. Community gardaí have worked very well, for example, in Cherry Orchard, on the development council etc. In time the reward for this type of work will come. It might not come quickly enough for the Minister, nor, regrettably, for some of the victims of crime, but it is coming because there is a slight change in the manner in which the Garda Síochána is tackling the problem.
If the Minister was listening to the Garda and read Garda Review, a copy of which I got yesterday, time and again the call is there for more resources and equipment, but not necessarily more laws. The laws are there to be used, but they cannot be used because gardaí cannot get past the first stage, which is about communicating with each other and perhaps the public. At this stage, on section 1 in particular, I ask the Minister to look at my amendments, even though they have been ruled out of order. These amendments propose that some of these sections, such as the treatment of persons in Garda custody, do not come into effect until the regulations are independently reviewed. A similar needs analysis must be done of different parts of the justice system. For instance, no needs analysis has been done of An Garda Síochána although Kathleen O’Toole has begun one.
On a point of order, this is a lengthy debate but Deputy Ó Snodaigh's contribution is a dressed up Second Stage speech.
It is addressing amendments that were ruled out of order. Deputy Howlin's amendment is a simple proposal and we can debate that. If we allow, however, the debate to ramble all over the place, we will never get anywhere.
Just so the Minister is aware, we are on Committee Stage and dealing with section 1.
We are dealing with an amendment from Deputy Howlin.
We are dealing with amendment No. 8.
We can deal with amendment No. 8 and I can continue. I was not going to get up again and deal with the whole section. If necessary, I will sit down and repeat it again.
Deputy Howlin is proposing there should be a precondition for the commencement of section 11, that is an independent assessment of the viability by the Minister of the electronic monitoring system. Deputy Howlin's amendment is not necessary because the provisions in sections 13 and 16 mean that electronic monitoring will not come into operation until an arrangement is made between the Minister and a contractor for the operation of the system. That must be done with the consent of the Minister for Finance. As Deputy Howlin knows, I am unlikely to get the consent of the Minister for Finance for a system that would not work. Preconditions are already in place that imply Deputy Howlin's point.
I agree with the spirit of his amendment. Before a system is introduced, it must be workable. Section 13 makes it clear that for it to be workable there must be an arrangement with a contractor for which I need the consent of the Minister for Finance. Only then can I make regulations for the operation of the system. There are a series of jumps that must be cleared before the system can come into operation.
There has already been a discussion on electronic monitoring on Second Stage and Committee Stage of the Criminal Justice Act 2006. The global positioning system, GPS, which monitors actual location has been the subject of controversy in the United Kingdom and has not been satisfactory in its operation. The home-based curfew type device has also been in operation and has been more satisfactory, although not 100% so.
I agree with Deputy Jim O'Keeffe that even if GPS is not available, we can go ahead with the curfew system. Before such a monitoring system can be introduced, I must have an agreement with a contractor for its monitoring. I am not deploying gardaí to study monitors. The panoply of this set of provisions is conditions precedent for the operation of the systems. I will not commence these sections until a court is in a position to have compliance with its orders in this regard. There will not be a situation where a District Court judge in Clonakilty orders electronic monitoring, only to be told by the Garda there is no system in place. There must be a system in place before the courts can order its use.
Section 13 is the standard provision for the consent of the Minister for Finance regarding contracts. I tabled the amendment to tease out where these monitoring systems stand. I admit I am not a technician. Since my comments on GPS, I have had several e-mails from people who use it satisfactorily for jogging.
My concern is that this is part of a window-dressing package. The Minister claims these systems will be introduced but only when they work. They never may but it is useful to have a nice, robust-sounding package together, capturing some ideas put forward by among others, Deputy Jim O'Keeffe, to make the Minister look good running into the election. Maybe mine is a particularly cynical view. Last year on Committee Stage of the Criminal Justice Act 2006, the Minister declared his enthusiasm was waning for these same proposals.
That was for GPS.
The Minister also discussed the same provision for electronic tagging. GPS is captured by this provision. One could also argue the enabling provision be included in the Bill and, if GPS ever becomes 100% accurate, the legislative base is intact.
Is there a costing for these systems? Last year, the Minister referred to a sum of €1,500 for monitoring. Yet, any system that requires 24-hour monitoring is not going to come cheap. The other side of the argument is that keeping an individual in prison is not a cheap option with the costs of incarceration ranging between €90,000 and €140,000 per annum.
I would have preferred if we had the views of the Irish Human Rights Commission before dealing with these provisions. There would be a great reluctance on the part of any court to confine someone to prison regarding a bail application unless there was a compelling reason. It may be more pro forma to electronically tag an individual. That is a significant infringement of one’s civil liberties and the courts may have a much greater readiness to do so.
The concern arises, however, that more people may have some curtailment placed on their civil liberties through tagging when the basic principle of law that should apply is that people are innocent until proven guilty and should have their liberty fully vindicated until such time as they are convicted in a court of law of an unlawful offence. Somewhere between these two propositions, there is the common good. The common good is not served by serial re-offenders being at liberty. That is why the bail issue must be dealt with separately.
I am cautious on this matter. Does the technology work? How much will it cost? Will it be operated in a way that ensures it is still considered a significant curtailment of liberty? It should not become a matter of routine even when it is introduced. Electronic tagging by GPS or fixed-point tagging, which confines people to certain locations within certain hours, must be carefully evaluated for its effect and never become a matter of routine. Has the Minister considered that electronic tagging may become seen as a small enough matter and would be resorted to with much greater frequency than a refusal of bail and a confinement to prison? In such a scenario, does the Minister consider it might imbalance the rights of an individual who is accused but not convicted to his or her full liberty?
I am shocked by the Minister's response. The issue of electronic tagging has already being debated during the Criminal Justice Act 2006. Amendments at the time, some of which I was involved with, provided for a process whereby, on a post-release basis from custody, a judge could order a criminal to be electronically tagged for a certain period. Apparently nothing whatever has been done by the Minister to implement the provisions dealing with electronic tagging already in place under the last Bill covering this area. Since the last Bill was enacted I have pushed to extend its provisions to cover giving a judge the option to release a person on bail subject to electronic monitoring. It was not included in the earlier proposal from the Minister but it is included in the Bill, about which I am delighted, although I wonder why he included it. Was it solely because I proposed it and to stop me giving out about it——
——or was it genuinely to put in place a system that will be operative under the orders of the court? The Minister has accepted that pressure has been exerted very much by me and the Fine Gael Party on this issue to provide for the necessary statutory underpinning, but apparently he has done nothing to implement it.
I do not intend to go over the ground of outlining the benefits of electronic tagging but responding to this issue, as someone possibly more committed to it than the Minister is, to some of the comments made by Deputy Ó Snodaigh, I am talking about an alternative to custody. We can give judges power to release a person on bail with a reasonable assurance that he or she will be tracked to ensure that he or she will not commit further crimes while awaiting trail. It also has other significant benefits, which have been manifested in other countries. This system has allowed a person to sustain his or her employment, rather than be detained in custody. I saw a person, who was released in the UK and electronically tagged, play a first division soccer match. It was highlighted in the media. He was able to continue doing his job. The system also results in huge savings for the taxpayer. Deputy Howlin mentioned that it costs €2,000 a week, on average, to keep a person in prison. This system releases custodial places which are in short supply and relieves pressure on the custodial system. Therefore, it has advantages from the point of view of post-release programmes and bail.
I believe I am wasting my breath in trying to convince the Minister to include such a provision in legislation when, apparently, he has not raised a finger to make sure that it will operate. What kind of an approach is that? I find it utterly unacceptable. While I am happy to see the legislative provisions in place, I am entirely unhappy about this approach making any contribution towards the fight against crime when the Minister has not raised a finger to implement the provisions, not only those of this Bill but those of the last Criminal Justice Bill enacted into law by the Oireachtas last July.
I will not labour this point as we are only dealing with an amendment to the section. We discussed the accuracy of the technology of such a system last year. If we were to go down the road of introducing a tagging system, it is reasonable that at the very least not only its accuracy but its effectiveness would be proven. There are other proven alternatives to tagging such as resourcing the courts, making sure that there are not long delays in the hearing of court cases, and that the conditions of bail can be set by judges which would allow the probation and welfare service to monitor them or the Garda Síochána to ensure that those on bail do not breach their bail conditions. However, that has not been done and neither the Garda Síochána nor the probation and welfare service has been properly resourced to ensure that bail conditions are complied with.
Is the Minister going to reply?
I will reply. I have said virtually everything I want to say about this.
I put three specific questions to the Minister. Perhaps he has forgotten them because I asked them so long ago.
I have forgotten them, as it is a long time since the Deputy spoke in favour of his amendment.
I am of the view, like Deputy Jim O'Keeffe, that this system can make a useful contribution, particularly in regard to the bail-no bail issue. It might well occur to a judge dealing with the question of whether a person is likely to commit a serious gangland crime that the fact that he or she could or could not be GPS monitored might affect the judge's decision although, on the other hand, if a person is a serious criminal, his or her physical location may be less relevant than others. However, if one is lower down in the pecking order, where one goes and what one does is probably of significance.
I make the point that the system is not entirely cost free.
I asked about the cost of the system.
My recollection is that the cost per prisoner per month is Stg£1,200. I believe that is the figure I was told.
It is much less than the cost of keeping a person in prison.
That is true but it would also depend on the volume of people being monitored. If somebody is required to sit at a monitoring station——
For one person.
——for one person, the price would be dramatically higher than for a large number of people. I am not in a position to give the Deputy an accurate estimate of that cost. It would depend on the technology and on the contract.
Is that for both systems or only the fixed point system?
My understanding is that it is for the fixed point system but I am not 100% sure about that.
The Minister might drop us a note on that.
The fixed point system is much cheaper.
I will communicate with the Deputies on this.
Officials in my Department met with Home Office officials on this issue. I remember that happening at the time of the previous Criminal Justice Bill but I am not in a position to say where consideration of it has got to since then, but the system involved cost implications, putting out a contract and having a statutory basis for it. The idea of outsourcing it was an issue which had to be dealt with in order to make it effective. That is what this is about.
I point out to Deputies Jim O'Keeffe and Howlin that I am not being cynical about this. While this system is not enthusiastically supported by some Members, Deputy Jim O'Keeffe is enthusiastic that this should be done. I accept the case he is making but I want to make it clear that there is no point in pretending to District Court judges or others that I have the answer to it, until I have an effective technology and a contractor in Ireland who can show, just as in regard to digital radio, that he or she can deliver the service. There is no point in my splashing out on a contract and then judges saying the system is ridiculous and does not work.
My complaint is that the Minister does not seem to have done anything about it.
Officials in my Department have been studying this issue and have consulted Home Office officials about it. I have drawn to the attention of the House that the reaction to it is mixed.
Some 200,000 such orders have been made in the UK since 1999; obviously, they have well developed technology there.
This, effectively, is the first amendment to be dealt with.
Is the Deputy pressing the amendment?
Yes. I am convinced that we need to give reassurances that such a system will work and the proposal in this amendment is a way of doing that. It would give some imperative to the Minister if he were to provide for this in legal terms in that we should have some follow up on it because it appears there has not been any such follow up. The Minister said his officials met Home Office officials last year and he is not aware of anything happening on this since then. Clearly, very little, if anything, has happened since the 2004 Act came into force last year. The notion of extending it to other categories, to bail applicants, when we have done nothing about last year's category, post-release persons, seems to be window dressing. That is reality as I see it. Therefore, I am pressing my amendment.
Amendments Nos. 9 to 11 are cognate and may be discussed together.
I move amendment No. 9:
In page 6, subsection (2), line 22, after "failure" to insert "or refusal".
These amendments deal with repeals of legislation in section 3 of the Bill. This section repeals certain parts of enactments in Schedule 1 which are section 7 of the Criminal Justice (Drug Trafficking) Act 1996, and section 5 of the Offences Against the State (Amendment) Act 1998. I am advised these amendments will lend clarity. The Minister's amendment wants those provisions to have force in so far as they relate to the failure to mention facts at the time before this repeal came into operation. The sentence is not comprehensive. Failure or refusal, as opposed to passive failure, should also be covered. The active refusal as well as passive failure to mention should be captured by the provision. It is a simple technical redrafting to expand the saving clause that the Minister is proposing to insert when he is repealing those sections.
The two provisions being dealt with here only refer to failures and they do not deal with refusals. I appreciate the Deputy is being consistent with proposals he intends making to Part 4 of the Bill but that would be with regard to new law. I can shorten this matter by saying that as far as we are concerned, every failure includes a refusal. If a person is asked to do X or to account for X and the person refuses to do so, that is a failure just as much as sitting there and staring at the wall and not giving an explicit refusal. We do not propose to accept the Deputy's amendments regarding a refusal and for that reason and for the other reason that the two Acts only refer to failure, I do not propose to accept this amendment.
I take the Minister's point about the previous Acts. I cross-referenced them on the basis of what I wanted to achieve here. I will deal with the matter of refusal when we are discussing the section in question. I do not wish to delay the debate. There is no point in amending something that is not stated or restating something that is not stated. I will withdraw the amendment on that basis.
Section 4 is a standard section and I will not labour the point. The section proposes that the expenses incurred by the Minister shall be to such an extent as sanctioned by the Minister for Finance. This is not a significant problem but any proposals tabled by my party have been ruled out of order on the basis that they would be a charge on the Minister for Finance which means every amendment is out of order as every amendment has the potential to be a charge. I have tabled some amendments in other sections which I ask the Minister to consider because they have been ruled out of order on the basis they would involve a charge on the Minister for Finance.
When the Deputy moves over to that side of the House he will be able to call charges.
I am asking the Minister to look at these amendments because some of them are reasonable and they might save money for the Government in the long term rather than be an expense.
Deputy Ó Snodaigh knows the Government is given the monopoly of proposing legislation which involves a charge on the Exchequer——
Sometimes they treat it like Monopoly.
——or Ministers of the Government are given this monopoly. Whether this is right or wrong is a constitutional matter and I believe there are good reasons for it. Standing Orders of this House provide that amendments which would have the effect of impinging on the Government's function in this matter are not in order. I will look at all the Deputy's amendments to see if there is any substance to them even though they have been ruled out of order for one reason or another. I will look carefully at all amendments whether ruled in order or out of order, to see whether they contain something of value.
Amendments Nos. 12 to 15, inclusive, and amendments Nos. 122 and 123, are related and may be discussed together by agreement.
I move amendment No. 12:
In page 6, before section 5, but in Part 1, to insert the following new section:
QUASHING OF AN ACQUITTAL
5.—(1) The Director may apply to the Central Criminal Court for an order—
(a) quashing a person's acquittal for a stated offence, and
(b) ordering that he or she shall be retried in respect of that offence.
(2) On an application under subsection (1), the court shall—
(a) if satisfied that the requirements of sections 6* and 7** are met, make the order applied for, or
(b) otherwise, dismiss the application.
This proposal arises out of one of the recommendations of the criminal law review group which reported this week. One of the recommendations of this group was to do with the re-opening of acquittals following new evidence. I know from my days as a law student and as a practitioner of the old principle of double jeopardy, whereby once an acquittal was granted, the person was free. I have noticed that changes have been made in recent years in the UK and other jurisdictions. The change arises where new and fresh evidence becomes available which was not available at the time of the trial and which points to the guilt of the person who was accused of a serious offence and who was acquitted at the time.
The recommendations of the Hogan committee arise in the context in which the power which I am proposing in my amendment of quashing an acquittal would be used very rarely and only used following the new evidence becoming available or an allegation of trial tampering. It would not be used often but it would be an important part of the criminal justice system to have this power to deal with somebody who was guilty of a serious offence and who effectively got away with it. I am proposing that the jury acquittal can in certain limited circumstances in the case of serious offences such as murder and rape and other heinous crimes, be re-opened.
In tabling this amendment I am reinforced by the recommendation of the Hogan committee. It is a ludicrous situation that a Criminal Justice Bill is being proceeded with without taking into account the recommendations of such a high-powered committee chaired by such an eminent lawyer, Dr. Gerard Hogan. I certainly take note of the committee's recommendation.
It was not a question of sitting up all night when it came to drafting these amendments but rather of looking at the British precedent and its outcome. It is already in operation in the UK under the Criminal Justice Act and the sections in the Bill before the House largely follow the format of the British Act. The thinking is to give the power to the DPP to apply to the Central Criminal Court for an order quashing the acquittal and leaving open the possibility of a new trial with new and compelling evidence. I have in mind here advances in modern technology such as those relating to the collection of DNA evidence. If DNA evidence was not available at a trial but if it subsequently became available and pointed to the guilt of the person who was accused and then acquitted, surely there must be an argument in favour of, at the very least, reopening the case. I accept this would be subject to all the relevant safeguards recommended in the Criminal Law Review Group's report, namely, an exacting threshold, advance judicial approval for an application and a setting aside of an acquittal before a retrial could commence. The mechanism I am suggesting would only be used on rare occasions. Having it in the armoury would, however, strengthen the criminal justice system.
According to the Criminal Law Review Group's report, there has already been one conviction in the UK, namely, in the case of Regina v. Dunlop last year. In the case in question, a murderer who had been acquitted following two trials subsequently made admissions in which he clearly accepted responsibility for the death of the unfortunate woman who had been killed. The latter led to the use of the type of mechanism I have outlined in the UK and the man’s acquittal was set aside and he was retried on the new evidence and convicted of murder.
The Criminal Law Review Group's report also gives us the benefit of its members' views on the European Convention on Human Rights. Anything we do must remain within the terms of both the Constitution and the convention. This issue has been analysed by the Criminal Law Review Group and its recommendation arises on the basis that any such proposal here is both constitutional and in accordance with the European Convention on Human Rights.
One of the reasons I wanted a decent examination of our criminal justice system and the allocation of a reasonable amount of time in which to debate these issues is to ensure that proposals of this nature are properly assessed, analysed and, if appropriate, included in the legislation. I rest my case in respect of the amendments and I await the views of other Members.
While I share the high regard for Dr. Hogan and his work, I must state the two amendments tabled in my name are identical to those I tabled in respect of the 2004 legislation. Dr. Hogan was certainly minded to consider the points raised in amendments Nos. 121 and 122. He was probably influenced in this regard by Mr. Humphreys who helped me draft the original proposals that are replicated in the amendments.
Amendment No. 121 is an exact copy of an amendment I tabled in respect of the Criminal Justice Act 2006 and it deals with miscarriages of justice resulting in acquittal. There are cases where new evidence arises in respect of miscarriages of justice regarding convictions and where such convictions can be overturned. There is, however, no provision in law where when compelling evidence of the most heinous and serious crimes comes to light, it is possible to launch a retrial. The phrase "In the case of an accused person tried on indictment for an offence carrying a maximum or mandatory sentence of life imprisonment" is used in amendment No. 121 and, therefore, I am suggesting the provision would apply to a limited category of cases and that the normal double jeopardy rule would not apply because that would be grossly unfair and wrong. The potential of being retried cannot be left to hang over everybody for ever.
Amendment No. 121 suggests that in the most serious offences in respect of which life imprisonment should be the penalty, where there is an acquittal and where, at any time following such an acquittal, the DPP comes into possession of significant new evidence which demonstrates that a miscarriage of justice has occurred, he or she may apply to the Court of Criminal Appeal for an order setting aside the acquittal and directing a retrial. I argued this point last year and referred to the UK proposals put forward at that time — these were not then enacted — particularly as they relate to technical advances. I suppose many of us are fans of the television programme "Crime Scene Investigations". While the advances to which I refer may not be as fanciful as some of those put forward in that programme, there have been clear technological advances in respect of DNA evidence and other matters through which very strong evidence of guilt can be adduced. In circumstances where a court did not have the benefit of evidence such as that to which I refer, it may have acquitted an individual who was guilty of awful crimes such as the murder or rape of children or the murder of another adult. That individual would be set free because the State and its prosecution services were powerless to act upon compelling evidence of his or her guilt. As already stated, the position regarding the overturning of wrongful convictions in high-profile cases is clear. There must be the potential — I accept the grounds in this regard would have to be narrowly focused — to revisit cases in respect of which new and compelling evidence relating to serious crimes comes to light.
The Minister may recall that when we debated this matter last year, he indicated an extremely positive view towards my suggestion in this regard. It is ironic that the main concern then was that there would not be sufficient time to tease the matter out properly. It was agreed that we would revisit it on a future occasion when another criminal justice measure came before the House. Such a measure has come before the House but my suggested provision is not contained in it. It would have been included in the legislation if we had been given the normal amount of time necessary to debate the legislation. If there had been sufficient time to review Dr. Hogan's report, the relevant recommendation would have migrated from that report into the legislative proposal before us.
It is not too late to make provision in this regard. The form of words in the amendment is good and robust and suggests a limited change to the current position, under which there is an absolute prohibition on double jeopardy, to allow us the potential to revisit the most serious of cases in respect of which new and compelling evidence arises. I do not know whether the Minister recalls that one of things that recommended this change to me was that in a case where somebody had committed a terrible offence and where the evidence was not sufficiently compelling to convince either a jury or court of his or her guilt, there would always be a nagging belief that one day proof would become available. There is some semblance of satisfaction in knowing that somebody who committed an awful crime that could carry life imprisonment would never be completely free of the shadow of that crime and that at some future date a charge could be proved against him or her.
Amendment No. 122 is an exact replica of another amendment I tabled last year. It arises out of clear examples that arose in respect of interference with juries. In a case where someone is acquitted and where it subsequently becomes clear that the jury was tampered with or intimidated, said acquittal is unsafe and there should be some mechanism to overturn it. Amendment No. 122 states:
42.—(1) In the case of an accused person tried on indictment for an offence, who has been acquitted, where at any time following such acquittal the Director of Public Prosecutions comes into possession of evidence which demonstrates that interference with the jury has occurred, he or she may apply to the Court of Criminal Appeal for an order setting aside the acquittal and directing a retrial.
(2) A retrial under this section shall be conducted by a special criminal court unless the Director of Public Prosecutions certifies that the ordinary courts are satisfactory for such retrial.
There are three elements in this amendment. First, where somebody has been acquitted of a serious crime and it becomes abundantly clear to the DPP that the jury has been got at, there is a mechanism to revisit that. Second, that evidence would have to be put before the Court of Criminal Appeal and that court would have to be satisfied as to it, which involves a significant burden of proof. Third, if there was any fear that one could not get a jury that would not be subject to such intimidation, and some crime gangs' reach is such that might be the case, a special criminal court would be available for the hearing of such cases unless the Court of Criminal Appeal determined otherwise. That is a good, strong, important mechanism and, as I did last year, I recommend it to the Minister for inclusion in this Bill.
I am very sympathetic to the spirit of both of these amendments. I indicated that previously and I am not just saying so now. It is my view that if somebody is the subject of a conviction by reason of a miscarriage of justice, we should supply remedies for him or her. Likewise, it is my strong view that if somebody secured an acquittal by certain forms of miscarriage of justice, particularly tampering with a jury, or tampering with witnesses for that matter, he or she should be subject to the stricture that if he or she procured a mistrial by an unlawful act, he or she must face the prospect of retrial, in certain serious cases at any rate. I indicated that when Deputy Howlin raised this in the context of the Criminal Justice Act of last year and I also indicated that in the context of a speech I made in Limerick in October last year. It was one of the matters I put on the agenda of the Hogan group for consideration and I note what that group has stated on these matters.
My mind has not altered one bit about this, just in case anybody thinks I am being inconsistent. Every time I discussed this in public I stated I believe this to be a desirable change in the law.
Whereas I share the view of Deputies Howlin and Jim O'Keeffe on this matter, it is not entirely free from controversy. I do not think, especially having listened to remarks from people from the fringes in the past few days, this would go without controversy. At the very least, we would need to have a significant debate on this issue, and to look at the constitutional implications of double jeopardy, before we go down that route.
I have been accused by people of trying to rush something through without adequate thought or adequate preparation for it. The Hogan report is an extremely valuable document and whereas I do not agree with every word of it, I agree with the significant bulk of what is in it and in some areas I would go further.
I took the trouble last Saturday to go to a seminar run in the Bar Council's premises and expressed all these views to a meeting of barristers. I thought that at least while I was present there was unanimity on these matters, although afterwards I discovered that some learned speakers came from different parts of the country and disagreed with the principle of some of the matters I am recommending. That being the case, I am confronted with the following choice: do I stop this now and have a widespread debate on the Hogan report, or do I proceed with this Bill which is narrower in focus.
Has the Minister done anything since May last?
I have. From where does Deputy Howlin think the Hogan report and all the consideration therein came? It came from the actions that I took to put this matter on the agenda and the other matters that are there.
But the Minister still has not got a fixed view on it.
The Irish people should have an opportunity to consider the Hogan report in its entirety.
We ourselves would like an opportunity.
This will be the subject matter of debate in the context of the forthcoming general election. The negative views, for instance, that the Green Party and Sinn Féin have to much of this material should be played out in public. Groups like the Irish Council for Civil Liberties, ICCL, and perhaps the Irish Human Rights Commission may well have difficulties with the Hogan report, even though the Hogan group consulted with them. There is a public debate on many of these issues.
My view is entirely coincident with the view of Deputies Howlin and Jim O'Keeffe. It is not sustainable in this day and age that if a person gets away with a crime, so to speak, and there is compelling evidence afterwards which was not available at the time the person was acquitted that he or she is the guilty party, and the crime is of such seriousness as to require revisiting, one should simply state that is a question of double jeopardy or autrefois acquit and there is no issue to be gone into. It is interesting that the European Convention on Human Rights — it is in the report, in the passage referred to by Deputy O’Keeffe — specifically deals with this territory. It is also of significance that Ireland is increasingly out of kilter with common law consensus on this issue in having the old system where if a person is acquitted that is the end of the matter.
I agree completely with Deputy Howlin. First, it could have a general deterrent effect that people would know even if they did get away with it, and they were clever on the day, had clever lawyers and intimidated people and whatever, that in the end there were other people who could, by delivering an envelop into the DPP one day, have them back behind bars, and that accomplices could pull the plug on people at a later stage. That is a compelling argument for change in the law on this area, as is the sheer question of public faith in the entire judicial system. For instance, if somebody in a Myra Hindley type case were to be acquitted, and if it were subsequently to emerge that there was a video tape of them doing whatever they did and if there was incontrovertible evidence that their acquittal was mistaken, it would outrage public opinion that they would be able to walk free. Although I do not want to get into too much detail, there is the spectacle in America of persons writing books about how they could have committed the murder if they had committed the murder of which they were acquitted. That process, too, is deeply subversive of public confidence in the administration of justice.
Ireland should join the international consensus and qualify the principle, which was a cornerstone when I was studying law, of the sanctity of double jeopardy. We can and should qualify that principle.
The issue with which I am confronted this morning by this amendment being tendered is that I am being asked to do something which I am being condemned for doing in other contexts. I am being asked to make a radical change when there has not been debate.
The change was proposed a year ago.
I appreciate that Deputy Howlin proposed it and I indicated that I agreed with it at the time.
Then the Minister cannot speak of time.
The pair of us having a conversation in a committee room does not of itself constitute a national debate. The point we must bear in mind is that if I were to accede to all of the amendments that have been tabled for the implementation of the Hogan report, I would be doing precisely what all of these bodies have been saying to me I should not do, that is, take radical steps in the course of disposition of this legislation without time for people to consider all the implications of it.
Deputy Howlin may ask why I am bringing in provisions to deal with the inferences on the right to silence.
We will deal with that.
We will deal with that at a later stage. The distinction I draw is that we made such a provision in 1998, as well as a provision on drug trafficking offences, whereas since 1994 it has been the general law in the United Kingdom that a jury can draw an inference from a failure to mention a fact. That has been in operation for the past 12 years. I am confronted by the immediate problem that gangland suspects in detention rightly believe that unless they are tried for one of the two statutory exceptions, their silence has no implication whatsoever. That is currently happening in respect of persons arrested and questioned, and I have to take immediate action in that context.
I am not abrogating the right to silence. That right is internationally recognised but nowhere except, perhaps, Ireland and the United States, is it prohibited to draw inferences from a failure to mention certain matters. Internationally understood, the right to silence is that nobody can be compelled on punishment to incriminate him or herself or risk a prosecution due to a failure to answer a question which would be incriminating. That is the meaning of the right to silence. It is bogus for some people in Ireland who pretend to be knowledgeable or stress their status as practitioners to claim otherwise. It is not an abrogation of the right to silence to say that someone can exercise it but may face implications by doing so.
The Minister will not be welcomed back to the Bar after the election if he continues in that vein.
I am grateful to those barristers who wrote to me but, as far as I am concerned, they got it wrong with regard to the right to silence and other issues. They got it right in that successive burglaries should not trigger three quarter sentences and I intend to deal with that issue.
The Minister is now making a Second Stage speech.
I am not making a Second Stage speech. Deputy Howlin raised a question on barristers and I am simply saying that the view is held by a small minority of barristers who had sought a general signature to their proposition. The great majority of barristers may not share their views on the right to silence. I imagine the majority of barristers share the general view that the right to silence is not unlawfully curtailed by drawing an inference from its exercise in certain circumstances.
I am not sure what way the Minister wants this. He curtailed a debate, yet claims we cannot adopt a proposal with which he agrees in principle because we will not have sufficient time for debate. This is incredible stuff. He now says we should not consider my proposal, which is synchronised with a similar proposal from Deputy Howlin, because it would cause controversy. I would find that incredible coming from any Minister but it is particularly hard to accept from him.
His reference to the general election also causes me concern. Did he disclose his real intentions for this Bill? I understood we were making an honest effort to improve the criminal justice system by introducing measures that would put us in a better position to fight the appalling levels of crime afflicting this country. Are we instead tinkering around with the Minister's election campaign? He might clarify that.
I am focussing on improving the criminal justice system on the basis of a Bill which was put before the House by the Minister but which I think can be improved. We are not discussing a new idea because this issue has been considered as long ago as 1982 by Mr. Justice Walsh in the O'Shea case, who stated: "It would be totally abhorrent if a conviction which had been obtained by improper means, such as the corruption or coercion of a jury, should be allowed to stand, it would be equally abhorrent if an acquittal obtained by the same methods should be allowed to stand." It is therefore not a new principle to say that, in certain limited circumstances, acquittals improperly obtained should be questioned.
With regard to the Constitution, the report of the Criminal Law Review Group states: "for the reasons outlined by Walsh J. in O'Shea, there is no public interest in preserving as inviolable a jury verdict which has been tainted by interference with the trial process". That would involve either tampering or a failure to produce compelling and virtually conclusive evidence. The report continues:
Instead the overwhelming public interest is in ensuring that criminal trials are conducted, in the words of Article 38.1 of the Constitution ‘in due course of law.' For the reasons outlined by Walsh J., the Review Group considers that there can be no fundamental constitutional or principled objection to revisiting jury acquittals which were brought about by or influenced by interference of an unlawful kind with the trial process.
I have not yet had the opportunity to read the report of the Human Rights Commission but I do not doubt it would have no problem on this issue because the European Convention on Human Rights touches on it. Article 4 of the convention states:
1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.
2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.
Jurisprudence and the Constitution are therefore on the side of proceeding with this proposal. The European Convention on Human Rights specifically permits it and the review group recommends it. Deputy Howlin and I, subject to agreeing the procedure, want it and the Minister now informs us he wants it. Why can we not have it? The Minister says it is because it could cause controversy but I am prepared to justify the introduction of such a provision anywhere. I am not attempting to play the hard man or electioneer but believe it would be an improvement to our criminal justice system. I cannot understand the approach being taken by the Minister. If he accepts it would be an improvement to the criminal justice system, as I gather from his remarks, why in the name of goodness do we not proceed with it? That is the purpose of debate and the reason why we learned the views of the review group. The Minister was given a clear indication by this side of the House that we want a provision of this kind, yet he stops at the brink and says it would cause controversy. I cannot accept that as a reason for failing to proceed with the provision outlined in amendments Nos. 12 to 15, inclusive, or failing to take into account Deputy Howlin's amendments, which are of a more limited nature. The modus operandi, however, can be settled provided there is agreement do so. That is the purpose of a debate of this kind.
I am not frightened that it would attract controversy but I have been publicly criticised for not providing sufficient time on a scheme of a Bill, which I published in February, by many people who have stated I should allow more time before I proceed on that basis. Now I am being told to put the entire Hogan report into law.
That is not so.
Who is saying that?
That is what I am being asked to do.
No, it is not.
I want to consider the Hogan report at greater length for good reason. Some aspects of the report, for instance, regarding inferences arising from the failure to mention facts, are too weak. Another aspect of the report does not go far enough. I believe in every jury trial a statement should be made by the defence as part of the process to start the trial.
Let us get to that later.
These are separate issues.
I appreciate that but I will not simply take some bits of the Hogan rebalancing package and leave others aside without giving a chance to anybody to even publish the scheme of a Bill. The scheme attaching to the Hogan report has been published——
On a point of order, the Minister is not sticking to the amendments under discussion. He made the same point of order during my contribution earlier.
It is for the Chair to rule on that.
The issues have been raised and the Minister should refer to them briefly.
To accept the scheme of the Bill, helpfully prepared at the back of the Hogan report, and to run with it now would be to do precisely what I am being criticised for, that is, not giving anybody time to consider other implications.
We are not asking that.
The Hogan group would not have expected me to run the scheme of its Bill through in rapid order. I am, therefore, not being inconsistent. I said last December that I would put a package before the House in the new year. I then published the scheme of a Bill in February and I published the Bill in March.
It is still March.
Yes and we are debating the matters that were canvassed in public. During this process, I returned from the US and received the Hogan report on my desk.
The Minister insisted on that.
Exactly. I did not undertake in public nor did I imply that I would immediately enact the report into law, even if I agreed with some of its provisions. I will not go down that road.
Deputies Jim O'Keeffe and Howlin cannot have it both ways. They cannot run with the Law Society on the one hand and say all these provisions are very major and require a good deal of thought——
The Law Society has a simpler version of our position.
——and then say eight days after I receive a report, "Please enact into law".
Nobody is asking for that. There is no point in putting up straw men to knock down.
There is no point in shouting either. I put before the people a scheme of a Bill and I asked the Parliamentary Counsel to draft that Bill. There is good material for the reform of criminal law in this package.
Why not use it?
I will not on Committee Stage turn the Bill into an enactment package of the Hogan report.
On a point of order, my proposal relates to a small section of the Hogan report dealing with the quashing of an acquittal.
It is not a small part.
The Minister can be very loose with his language at times. I did not refer to taking the 295 pages of the Hogan report and immediately enacting them into law. My amendments contain a proposal, the background of which goes back to 1982. It has been examined from time and time and it was raised and supported, not least by my colleague, Deputy Howlin, in the context of the 2004 Bill. It is not a new proposal.