Amendments Nos. 1 to 3, inclusive, are related and will be discussed together.
Criminal Justice Bill 2007: Report Stage (Resumed).
I move amendment No. 1:
In page 7, line 6, after "1984," to insert "THE CRIMINAL JUSTICE (LEGAL AID) ACT 1962,".
These amendments are to the Long Title of the Bill. Amendment No. 1 reflects the fact that the Bill amends the Criminal Justice (Legal Aid) Act 1962. Amendment No. 2 deals with the fact the Bill amends the Criminal Assets Bureau Act 1996. Amendment No. 3 makes it clear that section 31 of the Bill empowers the Minister to make regulations governing the administration of cautions by members of the Garda Síochána to include a specific reference to increased detention powers provided to the gardaí under sections 49 and 50.
These amendments are consequential on changes being made and I support them with no difficulty.
The debate has been unusual in that we recommitted most of the Bill and debated it on Committee Stage a second time. There were areas that were not touched upon and, as a result, amendments I have tabled on Report Stage have been ruled out of order. Is there any way to discuss them because if we get to the issue of detention periods, an issue we did not cover, only the Minister's proposals can be examined? We cannot discuss particular amendments and I regret that. It is ironic because many of the amendments we will make to the Bill are ministerial amendments that would not have been there if the original timeframe had been adopted. There is merit in giving sufficient time for these matters to be discussed. I have no difficulty in accepting these amendments.
Amendment agreed to.
I move amendment No. 2:
In page 7, line 10, after "2006" to insert ", THE CRIMINAL ASSETS BUREAU ACT 1996".
Amendment agreed to.
I move amendment No. 3:
In page 7, line 13, after "RESPECTS," to insert the following:
"TO MAKE PROVISION IN RELATION TO THE ADMINISTRATION OF CAUTIONS BY MEMBERS OF THE GARDA SÍOCHÁNA TO PERSONS IN RELATION TO OFFENCES, TO PROVIDE FOR ADDITIONAL POWERS OF DETENTION BY THE GARDA SÍOCHÁNA OF PERSONS SUSPECTED OF CERTAIN OFFENCES FOLLOWING ARREST OR REARREST OF SUCH PERSONS IN CONNECTION WITH THE INVESTIGATION OF SUCH OFFENCES,".
Amendment agreed to.
Amendments Nos. 4 to 11, inclusive, not moved.
Amendments Nos. 13 and 14 are cognate with amendment No. 12 and they will be taken together by agreement.
I move amendment No. 12:
In page 8, line 22, after "failure" to insert "or refusal".
This is a simple, technical amendment to ensure that refusal, as opposed to passive failure, is also covered. In section 3(2) I wish to insert "or refusal". The repeal of subsection (1) of the enactment specified in Schedule 1 does not affect the application of those enactments to a failure or refusal to mention a fact to which those enactments relate if the failure occurred before the repeal comes into operation and those enactments apply to such a failure or refusal as if they had not been repealed.
It is important when we enact legislation of this sort that we are robust in repeal sections. My adviser suggests these amendments would make the section more robust in that regard. This is a technical issue, however, and I will be bound by the Minister's view and that of the Attorney General.
I have the greatest of respect for the Deputy's adviser but every refusal to mention something if asked amounts to a failure to mention it but every failure does not amount to a refusal. I cannot imagine someone saying that when he was asked a question and deliberately did not answer it, that does not amount to a failure. It could, however, amount to a refusal. In the circumstances, therefore, I am advised that the greater includes the lesser and "failure" is adequate to deal with the matter.
I simply wanted the matter to be checked and I am pleased to accept the views of the Tánaiste.
Amendment, by leave, withdrawn.
Amendments Nos. 13 to 15, inclusive, not moved.
I move amendment No. 16:
In page 8, between lines 27 and 28, to insert the following:
"PART 2
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 will 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.”
May I comment on amendment No. 16?
The Deputy may not comment but he will.
In many ways the Minister's effort are misdirected in parts of the Bill. We are discussing the quashing of acquittals following new evidence. This approach has been adopted in Britain and recommended by the criminal law review group. There is a great deal of support for this measure and I regret the Minister has not adopted my proposals. I can only assure him that in a short time, these proposals will find expression in law.
Amendments, by leave, withdrawn.
Amendments Nos. 17 to 19, inclusive, not moved.
I move amendment No. 20:
In page 8, between lines 27 and 28, to insert the following:
"PART 2
WITNESS INTIMIDATION
5.—The Minister shall, by regulation under this section, make provision for identification of suspects by witnesses, victims and other persons where the suspect can be identified through a one-way screen and the identity of the witness, victim or other person can be withheld.".
I got the impression from the discussion on Committee Stage that there is approval for this approach and I want to see it put into place as soon as possible. I accept that consideration must be given to the practicalities of this matter but we must look at the principle. It is outrageous that we do not protect the victims of crime to the greatest possible extent, including during identification parades.
I mentioned a case on Committee Stage where a rape victim would not take part in an identification parade because she could not face her attacker. The obvious solution is identification using a one-way screen, where requested by the victim. In that way the identity of the victim or witness can be withheld. The amendment would empower the Minister by regulation to make provision for such an approach. Can we agree this in principle? I get the feeling from general comments that there is broad agreement on this approach, where the position of the victim is recognised.
The practicality of such an approach has been dealt with in other countries, it is not that we are trying to re-invent the wheel. Let us learn from best international practice and do something similar here. I do not believe it is necessary to have a separate room built for such purposes in Garda stations or otherwise. Portable screens may be erected and modern ingenuity is such that practical difficulties can be overcome. We are not talking about building special identification rooms in Garda stations. Perhaps that would be the wise course to take in some of the busier centres, but in general the practicalities are capable of being dealt with and I urge the Tánaiste, for that reason, to accept the amendment on the basis of empowering the Minister of the day to make whatever regulations are appropriate and necessary to introduce such a system at the earliest possible date.
I support Deputy Jim O'Keeffe's proposal. We had some discussion on this matter on Committee Stage, when the Minister talked about the practicalities of it, accepting that the most practical way to do this, perhaps, would be to have portable screens that could be transported to the Garda station where an identification process was due to take place. Both Deputy Jim O'Keeffe and the Tánaiste will be aware of the long discussions on this and related matters that took place at the Joint Committee on Child Protection. While those discussions largely focused on child protection and the identity of perpetrators against children, I believe they have a more general application.
I will confess to the House that I was involved in an identity parade when I was a student.
Was the Deputy found guilty?
As a young lad up from the country I was requested to stand in an identification parade. There was very little chance of being identified——
I hope the suspect was not 6 ft. 6 in.
That is the precisely the point I was going to make. There was certainly a disparity in sizes and the point the Tánaiste makes is a fair one. In certain circumstances, when the elderly in particular are confronted by a perpetrator, it is not satisfactory that they should meet eyeball to eyeball, much less have to physically come into contact with each other. There is great merit in this proposal. I cannot recall why the amendment was not accepted, but I know there was broad consensus as regards the spirit of the proposal. Ministerial advisers are always reluctant to adopt such an initiative because if it is put into a Bill it has to be effected, whereas if it is checked in principle one may resile from it or it may be long-fingered in some way. I recommend it be adopted as it is an important issue in its own right and has merit, certainly, in the context of all the submissions on this matter, of which there were a great deal, to the child protection committee. It has general application, too, across other categories of crime perpetrated against the young, the elderly or anybody for that matter.
I regard this as a very important issue. The conduct of identification parades is of pivotal importance, first, as regards their fairness. That jocose remark of mine a moment ago is significant in the sense that identification parades have to be fair. There is no point in having one that is unfair in its composition. Also, they have to be effective as I know from my practice as a barrister. I recall one incident where the Provisional IRA was intimidating a family in Monaghan. Eventually, the only method of identification available to the Garda was to put the identifying witnesses into a vehicle on a street where they knew the individual concerned walked up and down among hundreds of others. In those circumstances they were given an opportunity to identify the culprit at a distance. That type of arrangement has its problems because of concerns over what might be happening in the van as regards the possible prompting of the identifying witnesses, for example. That is an inherent difficulty. The same argument applies if the person who later ends up as the accused is in a room and is aware that he or she is facing a mirror, without knowing what is happening behind it. In the event, he or she may make the allegation that while in the company of others there was no way of knowing what the identifying witness was actually doing at the time. The question of the identifying witness's demeanour or whether he or she hesitated etc. are all potential matters of difficulty afterwards. At least the face to face arrangement had the dubious advantage that the accused could see whether the witness was being prompted, hesitating or whatever.
We correctly identified the proposition on Committee Stage that sometimes it is really frightening, particularly for the victim of a violent or sexual crime, to be asked to confront the alleged perpetrator in a face to face manner. There is a way around this, but it involves allowing the alleged perpetrator the right to have someone behind the screen to ensure all is well or else having some video record of what is happening behind the screen and the like. Best practice in an identification parade should usually involve the taking of a picture so that the jury may work out what value to attach to it. In a situation, for instance, where there might be numerous people of one race with one person of another race or whatever, such information should be brought to a jury's attention if it is to attach any weight to the evidence.
As I said on the last occasion, I am very positive about the notion of providing one-way screens. How it is to be done, practically, I do not know. One way of dealing with the issue would be to have a witness procedure behind it or an independent monitor to ensure that there is no abuse. It might well be, in such cases, that the accused has the benefit of a lawyer at this stage, who can stand behind the scene to see what is happening. There are ways of getting around that issue. However, I want to emphasise that it is not necessary for me to have regulatory power in this regard. For me or my successor to make a regulation does not make the situation fairer or less fair. Prescribing rules on a ministerial basis does not really address the issue. As I understand the issue, there is unanimity in this House that there should be a facility for victims of violent and sexual crime to not necessarily have to confront their perpetrators. In those circumstances I do not need a regulatory power to bring this about. I need to find a good way to do it and must have the will to do it. Those are the issues involved. I do not need a statutory instrument. The making of a statutory instrument would only complicate the issue, as far as I am concerned. It is really a matter of bringing in a memorandum or circular for the Garda. It does not require a statutory instrument which will be pored over by defence lawyers to determine whether this or that paragraph is totally complied with. I prefer to deal with this in a non-statutory instrument or non-legislative way by introducing some type of Garda circular that might be capable of being amended or improved on, as the case may be. Legislation is not required to achieve what everybody in the House agrees, namely, that there should be facilities for people to make an identification in trustworthy circumstances, without making eye to eye contact with the alleged perpetrator, where there is an issue of intimidation or where the victim might have genuine problems by reason of the violence or sexual nature of the crime.
On the basis of the amendment, if we have unanimity in the House for the introduction of one-way screens, then, to a large degree my mission is accomplished. I accept that the practicalities involved have to be ironed out and from that perspective I want to see an examination of these issues as soon as possible, and in particular to know what best practice is in other countries. It is the practical aspects that need to be addressed. On the basis of the Minister's assurance that his examination of the issue indicates there is not a need for a legislative underpinning to provide for the identification system, I will not press the amendment. Instead, for future reference, I will leave it on the record that there was unanimity in the House in favour of the introduction of such a proposed system.
Amendment, by leave, withdrawn.
Amendments Nos. 21 to 23, inclusive, are related and may be discussed together.
I move amendment No. 21:
In page 8, between lines 27 and 28, to insert the following:
"PART 2
EXCLUSIONARY RULE
5.—(1) Where evidence is obtained in contravention of a person's constitutional rights, whether numerated or unenumerated, such evidence may, having regard to the totality of the circumstances of the case and, in particular, the rights of the victim, be deemed by the court to be nonetheless admissible, unless—
(a) the evidence was not obtained in good faith, and
(b) the contravention of the person’s constitutional rights was—
(i) intentional, and
(ii) significant in the context of the offence alleged.".
As far as the public is concerned, one of the greatest scandals of the criminal justice system is when an accused person is freed from the courts on technical grounds. The public can be further scandalised when it becomes aware there were large volumes of evidence against the accused, painstakingly gathered by the Garda, and presented to the court.
When I was a law student, I viewed the scales of the justice as being historically weighed against the accused. In our colonial history, the weight of the British Establishment was brought down heavily to bear on people who were largely uneducated and without proper representation which mitigated against their opportunity to an adequate and proper defence. My historical sympathies would have been towards the development of a proper system of defence so that the scales of justice were more evenly balanced.
In more recent years, I have changed that view and believe the scales of justice have gone the other way. In many instances, the accused are reasonably educated with access to the best lawyers through large pots of ill-gotten gains that enable them to put up substantial defences. Sometimes they have far more money for lawyers than the State can afford.
The criminal justice system is not served by having people excused or not convicted of their crimes on the basis of evidence being excluded for purely technical reasons. The exclusionary rule is one of recent origin in this and other jurisdictions. I am impressed that in other countries, the rule has been tempered, which is the basis of these amendments. If we focused more on these issues, we would serve the country better.
I accept the need to be careful in changing the rule and not to go overboard. The distinguished chairman of the Criminal Law Review Group, Dr. Gerard Hogan, for whom I have the highest regard, made a minority recommendation on this issue with which I do not agree. There is scope for change and I agree with the group's majority recommendation to allow a "Court to have a discretion to admit unconstitutionally obtained evidence or not, having regard to the totality of the circumstances and in particular the rights of the victim". This is one area that requires attention when bringing our criminal justice system up to date.
These amendments were tabled on Committee Stage. I have tried to draw them up to ensure there are compelling reasons for obtaining evidence unconstitutionally. I do not want the Garda Síochána to be given a free run. These proposals would address serious cases and crimes. There would have to be proof that the evidence was obtained in good faith with no intentional breach of the accused person's constitutional rights. It would be in the interest of rebalancing the criminal justice system, making the public more confident in it. That confidence is eroded when persons accused of heinous and serious crimes walk out of the courts on the basis of technicalities.
On Committee Stage, I stated that I supported the minority in the 1990 Kenny decision. The minority, or discretionary view, held that a balance had to be struck between rights rather than a rigid view being taken which I would prefer were reflected in our jurisprudence. The question is how can we arrive at that point.
I feel a place on the judicial benches coming for the Minister from which he can make judicial announcements.
He could also guarantee it.
It might preclude me from sitting on such a case.
To arrive at such a point, the House could prepare a single clause Bill, stating it is a legislative recalibration of the Kenny issue. The President, at her discretion, can then decide to refer it to the Supreme Court, having consulted the Council of State, under Article 26. Alternatively, it could be enacted without reference to Article 26 until an individual challenged it.
The alternative method is to insert a wording into the Constitution to recalibrate the law to meet the Kenny judgment. This could come to 15 lines which makes it a less preferable method.
The best way is to draw up a single clause Bill and test its constitutionality. Alternatively, one could wait for a case to come before the courts to challenge the Kenny judgment but that has already happened unsuccessfully. The difficulty with that is that it normally falls to the DPP to make that decision. It is not competent for the Government of the day to direct a case to be fought in those circumstances. In most of these cases, the Director of Public Prosecutions decides independently the points he wishes to make.
I fully sympathise with what the Deputy is driving at which also represents my view of what would be a desirable outcome. However, to use the slightly colourful language I used on Committee Stage, for me to accept this amendment would be like carrying a ticking bomb on to an aeroplane because it would mean I was including something which was at the very least challenging in respect of an Article 26 reference. The whole Bill would collapse if the Supreme Court was to uphold its original position in the Kenny case. It would not be in the interests of the Garda Síochána, the community at large or, indeed, the justice system if an extensive Bill was to fall because we engaged in a bit of experimentation.
I agree with the spirit of what Deputy Jim O'Keeffe proposes but it would be courting disaster to include something in a Bill that is at best a 50-50 proposition, even if the Attorney General were to agree to it, which is another issue with which I do not have to deal, to test whether the Supreme Court would be willing to revisit this matter for a third time. If this House got it wrong, we would be leaving ourselves in the position that we would have no legislation as a consequence. It is a matter for the next Dáil.
There are other issues for the next Dáil, including a pet of mine, namely, matters in regard to jury trial and an issue about which I am very strong, namely, the requirement that the accused in a jury trial be required to outline as part of the whole process his or her defence so the jury knows from the beginning of the trial what the case is all about and so the evidence that is irrelevant to the points at issue between the parties is not tendered to a jury unless there is a very good reason for doing so. We should introduce the concept of a formal defence where a person would say "I accept the girl was raped but I did not do it" or "I accept the house was burgled but that is not my fingerprint" so the jury knows the issue in a case rather than have everything open and have trial by ambush. That is the next phase of reform of the criminal law.
What is the situation where the accused does not give evidence?
Whether the accused gives evidence — there are tempting provisions in the English statute on that issue as well — the jury would know exactly the points at issue between the defence and the prosecution at the beginning of the trial. If at the end of the trial and without any defence evidence it is argued that the circumstances for visual identification were inadequate and that the complainant's evidence is wholly unreliable, at least let the jury know at the beginning of the trial that those are the issues in the case so it need not be bothered by evidence that is irrelevant to those issues. That is the point I make.
The Tánaiste will have time to bring in a Private Members' Bill in the next Dáil.
Yes.
It might be accepted too. I am glad to hear views emerge around an approach that is important, namely, that we formulate an approach that will stop people accused of serious charges being acquitted on purely technical grounds.
The Tánaiste mentioned the original Kenny case. It is interesting that in that case the accused was charged with possession of drugs found as a result of a search of his house. The discovery of the drugs was the essential, core point. However, there was an obtuse discussion as to whether there were reasonable grounds for the issuing of the warrant signed by the peace commissioner. How ludicrous could it be? Significant also was that the trial judge held the warrant was valid and the Court of Criminal Appeal, which I presume comprised three judges, ruled that it may not have been valid but that the evidence was nonetheless admissible on the grounds that there was not a conscious or deliberate violation of the constitutional rights of the accused. At that stage, four judges were in favour of conviction.
The case then went to the Supreme Court where there was a three to two verdict. Of the nine judges who considered the case, six of them were in favour of conviction. However, because of the way we do our business, the three-two decision of the Supreme Court meant the evidence was not admitted. Somebody caught red-handed in possession of drugs was able to get away. That is the background to this issue.
The foreground to this issue is a recent case of a famous or an infamous nature with which we had to deal through a committee of the House. Again, the public was scandalised that evidence, which was clearly there in respect of a computer and otherwise, could not be admitted because of a defect raised in regard to the search warrant, namely, whether the seizure took place 12 hours before or after the expiry of the search warrant. We need to change this.
I am cognisant of the points raised by the Tánaiste. In advance, I am preparing to accept an instalment of his support for a change along the lines he suggested. It is probably the right approach. If there is difficulty in regard to the constitutional aspects, let us introduce a Bill covering this rule as soon as possible in the next Dáil and, if necessary, let it be referred to the Supreme Court. Some of the points made in this House will be referred to when the matter goes before the Supreme Court. On that basis, I will not press the issue further.
Amendment, by leave, withdrawn.
Amendments Nos. 22 and 23 not moved.
I move amendmentNo. 24:
In page 8, to delete lines 30 to 38.
It is good to see that at least one of the amendments survived. The intention is to remove the section which allows for the outsourcing of some of the classes of work the Tánaiste has outlined in this Bill. As far as I remember, it is the Tánaiste's hope that electronic tagging would be outsourced and that he could prescribe or authorise a person to carry out that duty. On Committee Stage I argued that such a person should be at least in the employ of the State, preferably of the probation and welfare service, but the Tánaiste rightly said a probation and welfare officer would not be the correct person to carry out such duties. I argued at the time that it should be somebody employed by the service but not necessarily somebody who is of the same grade as the probabation and welfare officer. They should be answerable to the service. He or she would be an employee of the State and as such would be answerable to his or her employer in all aspects. What happens in other jurisdictions is that people involved in these services compete against others who tender for the work and the cheapest possible option is sought. The conditions of work and pay of such workers is not conducive to good practices. We should not go down that route of outsourcing and privatising any part of the justice system because of its importance and because of the need for the State to ensure justice is delivered fully and that the service is fully accountable to the State and the Minister.
I have made this point about a number of services such as the prisoner escort service. I know the Minister does not agree with my view but I have tried once again to outline the reason we should not go down this road. I note a number of other faults in this section of the Bill and most of my amendments have probably been ruled out of order because they were discussed on Committee Stage. However, due to the short-circuiting of the debate and its truncated nature I do not believe we had enough time to tease out the implications of some of the practical points even though there was some discussion of the major points. The short-circuiting of the debate has not allowed the House enough time to cross-examine the Bill in detail and to allow for the observations of others, including the professionals who operate in the various fields affected by this legislation. The observations and opinions of practitioners such as the Garda Síochána, the Irish Prison Service, the probation and welfare service, which will have to work with people in the private sector, should be considered. This Bill will result in major changes in the justice system but the Minister's approach of fast-tracking it through the House is fundamentally flawed. I am glad of the extra time which we have managed to wrangle out of the Minister but there has not been sufficient time and this will become evident in future when the Bill is put to the test.
I have on a previous occasion and with regard to a similar matter expressed my view at some length to the Deputy. I do not think he will persuade me and I do not think I will persuade him. In the circumstances we should agree to differ on this issue.
The Minister has expressed his desire not to go down this road. His stated preference is that it would not happen, yet he admits that the eventuality could happen.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Acting Chairman
Amendment No. 25 in the name of Deputy Ó Snodaigh is out of order as it was negatived on Committee Stage. Amendment No. 26 arises of out Committee proceedings. Amendment No. 27 is related. Amendment No. 26 and the amendment to amendment No. 26 and amendment No. 27 may be discussed together.
Amendment No. 25 not moved.
I move amendment No. 26:
In page 9, to delete lines 18 to 21 and substitute the following:
"(e) any previous conviction or convictions of the applicant for a serious offence;
(f) any previous conviction or convictions of the applicant for an offence or offences committed while on bail;”.
Deputies will recall I accepted an amendment proposed by Deputy Howlin during Committee Stage to delete paragraphs (e) and (f) of subsection 1 of the Bill as published and replace them with a new paragraph (e). I was persuaded by Deputy Howlin that paragraph (e) as published was too restrictive in that it required the bail applicant to list only previous convictions for the serious offence with which he or she was charged and that paragraph (f) was too broad in that it referred to offences committed while on bail rather than convictions for offences while on bail. The result is that paragraph (e) now provides that applicants for bail must include details of all previous convictions and information as to which of those convictions, if any, concerned offences committed while on bail in the written statement that is required to be furnished alongside their bail applications. On reflection I believe paragraph (e) is now too widely drawn by requiring applicants to list all offences including minor offences such as road traffic violations. This might be almost impossible for somebody with a string of convictions. For instance, a bad driver might have collected quite a record on the PULSE system which he or she might not have a diary note of nor be in a position to tell anybody about. It would be almost impossible for someone with a poor record to provide the level of detail and in any event it may be neither necessary nor relevant.
My proposal is a compromise that would require applicants to detail previous convictions for all serious offences and to detail all convictions for offences committed while on bail. The term, "serious offences" is defined in the Bail Act so it does not need to be redefined here.
Deputy Howlin then tendered an amendment to my amendment that would require applicants to furnish details of all serious offences and any other offences committed in the previous ten years. This would include minor offences. The Deputy's proposal, even with the ten-year limitation, is still too wide. It would be virtually impossible for a career criminal ever to furnish details of all minor offences for the preceding ten years. That level of detail would not be of much use to the prosecution or to the court in arriving at a view on the matter. Information that is of most relevance to the court, previous convictions for a serious offence and any convictions for offences committed by the applicant while on bail, are provided for in my proposal and therefore I am not disposed to accept Deputy Howlin's amendment to my amendment. If Deputy Howlin's amendment were to be accepted, the word "other" would need to be inserted before "offence committed within the previous ten years", but this is a drafting point.
Deputy Ó Snodaigh's proposal seeks the deletion of paragraph (g) of the new section 1A. The applicant’s history of bail applications is of relevance to the prosecution and the court and it will assist the prosecution in determining whether to oppose bail and the court in deciding whether to admit the person to bail. The nature of any conditions to be imposed could also be affected. It does not tie the hands of the court when deciding on the bail application before it, but it is information that should be before the court and therefore, I am not disposed to accept Deputy Ó Snodaigh’s proposal. It should be noted that Deputy Ó Snodaigh made the point on Committee Stage that no timeframe is included for the submission of the statement even though the section allows the court to extend the period for production of same. I undertook to consider that point. Subsection (3) sets out when the statement is to be furnished and I do not propose to elaborate further on that point.
I move amendment No. 1 to amendment No. 26:
In paragraph (e), after a “serious offence”, to insert the following:
"or for any offence committed within the previous 10 years".
I saw the Minister's amendment since we had the reasonable debate on Committee Stage and he had accepted my amendment and substituted my wording of subsection (e). I wondered why the Minister was bringing forward two new subsections now and I thought it might be just to fill the gaps since the Bill as published has subsections (a), (b), (c), (d), (e), (g). It seems subsection (f) has fallen off the agenda entirely in the sequencing. I thought the Tánaiste might divide paragraph (e) to create a paragraph (f) and improve the sequencing.
On reflection, I am inclined to agree with the Tánaiste. The original wording was quite flawed and he has accepted that point. The Tánaiste suggests a compromise in respect of convictions for serious offences. Perhaps he will read into the record the definition of "serious offence" under the Bail Act. I understand that what is now proposed is that, in making a bail application, an individual will be required to list all previous convictions for serious offences and any convictions relating to offences committed while on bail. On balance, that is probably adequate. My suggestion that we should add the phrase "or for any offence committed in the previous 10 years" was for completeness. However, this might lead to the capture of rather minor issues and place too onerous a burden on bail applicants. I am not going to press amendment No. 1 to the Tánaiste's amendment.
My recollection of the provisions of the Bail Act is that a serious offence is characterised as one which, on conviction, carries a penalty of more than five years.
Such an offence must also be listed in the Schedule to the Bail Act.
Perhaps the Tánaiste will read into the record the list of serious offences.
We are trying to ensure that as much relevant information as possible will be placed before the courts when decisions relating to bail are being made. I approve of the requirement that information relating to a person's sources of income within the preceding three years, to his or her property, whether inside or outside the State, and to his or her previous convictions be made available. As a country attorney, my approach to these matters is to consider the practicalities. On Committee Stage, I referred to someone with convictions relating to 79 offences and the fact that he or she would not have a hope in hell of listing them all. I would not like a legal requirement to be put in place in this regard because there is no point in making provision in respect of something that cannot be achieved.
The compromise that has emerged in the wake of the amendment tabled by Deputy Howlin on Committee Stage strikes the correct balance. A court should be made aware of any previous convictions in respect of serious offences. It should also be made aware of any convictions relating to offences previously committed while on bail. That is a fair balance. I would like to see such information being placed before judges charged with making decisions on bail. I accept that offences relating to an accused having bald tyres on his or her car or not possessing road tax for that vehicle are not entirely relevant in this context. In addition, it is not practical to make provision in respect of such offences. On balance, therefore, I support the approach now emerging.
Amendment No. 27 in my name proposes the deletion of paragraph (g), which would solve the sequencing problem to which Deputy Howlin referred.
I have a difficulty with this because a judge should be able to make a decision with regard to the merits of an application before him or her rather than on the basis of previous decisions made by other judges. The Tánaiste is trying to capture everything in paragraph (g) but there is other relevant information which it does not cover. I refer, for example, to the fact there is no requirement to indicate why bail was or was not previously granted. Under the paragraph, there is only a need to indicate whether bail was granted and outline the conditions associated with that bail. A person charged with a serious offence might, for example, be granted bail on foot of the fact that a considerable period might elapse before the commencement of the court case. In addition, bail might be granted where a person was obliged to resolve a family or some other matter.
The paragraph does not cover every eventuality and accused persons will argue that they should have the opportunity to ensure all the relevant details they require to be raised will come to light. I do not know whether this is contemplated by the written statement that an accused is required to provide. I have difficulties with the entire section but my main concern is that a judge will be obliged to make a decision based on the findings or other judges rather than on the basis of his or her own findings. For those reasons, I am seeking the deletion of paragraph (g).
To some extent, there is an element of truth in that. If, however, in imposing sentence in a case, a judge has regard to the previous convictions of the accused, he or she is having regard to other judges' findings and the sentences they imposed. We must take a commonsense approach and a judge must have a fairly complete picture of what has gone before.
I am glad there appears to be general agreement on this matter. I visited the Garda vetting unit in Thurles yesterday. I was shown two application forms relating to jobs that involve working with children which were submitted for vetting and on which the applicants had forgotten to include information on major sexual offences involving children. Persons applying for bail must be put under some pressure, therefore, to rack their brains and supply information relating to serious offences they committed in the past. It is important that a court, in the context of whether bail should be granted, should be presented with a good picture of an accused and his or her general character. I am happy with the consensus that has emerged.
Deputy Howlin asked me to outline the Schedule to the Bail Act. The Schedule is extremely lengthy and covers virtually everything that could be considered a serious offence, including treason, murder, rape——
Piracy.
Yes.
Does it cover every offence in respect of which a penalty of over five years in prison applies?
I do not know whether that is a fair description but it covers virtually any act someone involved in serious criminal activity could commit.
Amendment to amendment, by leave, withdrawn.
Amendment No. 26 agreed to.
Amendment No. 27 not moved.
Acting Chairman
Amendments Nos. 28 and 35 are cognate, amendments Nos. 29 and 36 are also cognate, amendment No. 30 is related and amendments Nos. 31 and 33 to 36, inclusive, are technical alternatives to the same part of the Bill. Therefore, amendments Nos. 28 to 31, inclusive, and 33 to 36, inclusive, will be discussed together.
I move amendmentNo. 28:
In page 10, line 15, to delete "may" and substitute "shall".
I argued this point before and the Tánaiste responded so I will not go into major detail. With regard to amendment No. 28, section 6(9) states:
The court may, if it considers that publication of any examination of the applicant in relation to the statement or any part of it or of any submissions made to the court may prejudice the applicant's right to a fair trial, by order direct that no information relating to the examination or submissions be published in a written publication available to the public or be broadcast.
The phrase, "The court shall" is more appropriate. If there is any chance that a publication would prejudice a trial a court must definitely prevent it. Amendment No. 29 has the same intent. We also argued the other matters on Committee Stage or during recommittal to Committee Stage, I cannot remember which.
Amendment No. 31 proposes to delete section 7 which provides that the opinion of a member of the Garda Síochána should be given greater authorisation or standing than the opinion of somebody else with regard to a bail application. An opinion is not evidence in such a case because it is not cross-examined and I am not sure whether it is under oath. Until recently, an opinion had standing in court proceedings during which the defence and the prosecution can argue the point and where it is stated under oath. A judge then came to a decision based upon evidence supporting the opinion, such as material relevant to the case, video footage or other witnesses rather than based on the opinion of a member of the Garda Síochána who may not be tied to the case, does not know the accused and does not need to know the full details of the case but must be of a certain rank.
This presumes those at the rank of chief superintendent would never lie, be vindictive or ensure somebody did not remain at liberty. Events in Donegal and elsewhere in the not too distant past show gardaí are similar to the rest of society and are not beyond reproach. We place great trust in the Garda Síochána to operate professionally. We should not include a section which states that the opinion of a chief superintendent is above that of others until the opinion is given in a court of law as part of proceedings against somebody rather than during bail proceedings. I am not alone in questioning this section and the raised status given to an opinion, in this case that of a Garda superintendent. The Human Rights Commission queried this in its observation on the Bill, as did the Irish Council for Civil Liberties.
As far as I understand it, the section does not explain the extent to which an accused has the opportunity to cross-examine opinion evidence. On past occasions when opinion evidence was used, privilege over the information on which that opinion was based was claimed by members of the Garda Síochána which meant the defendant did not have an opportunity to mount a defence. This matter is raised with regard to bail and serious crime. When one considers the length of time it takes for cases to reach court it is a serious matter to deprive somebody of their liberty for two or three years. It might be different if cases reached court and were sorted out much quicker. On the balance of justice we could then accept such a ruling.
We should not go down this road. It is a similar power to that given to the Garda Síochána under the Offences Against the State Act, which was abused. Over the years, changes were made whereby gardaí had to produce additional evidence. However, the most recent instance I recollect in which this type of privileged information was used was where a Garda superintendent swore it was his opinion that somebody was a member of the IRA. When asked to prove it, he initially refused and then stated that his opinion was based on Garda files. The court forced him to produce the files but they were only made available to the prosecution and the judges. The defence had no opportunity to challenge statements, hearsay and other material contained in the files. It made a mockery of the concept of a fair trial. Will this provision take us down the same road? Will the Tánaiste again consider what is intended or what could be the result of section 7?
The Tánaiste tabled an amendment to this section which captures the argument I made on Committee Stage to delete the word "considered" because the original draft added a great deal of confusion. The Tánaiste has redrafted that amendment. Other than dropping the word "considered" in the new section 2A(1) I am not sure what other changes are necessary.
I made a detailed submission on Committee Stage based on advices presented to me and published advices from a distinguished former Attorney General that the provision was unconstitutional. I am not happy about this. The provision that a member of the Garda Síochána not below the rank of chief superintendent can give as evidence that he or she believes it to be the case that refusal of bail is reasonably necessary for the purpose of a person not committing an offence does not sit well with me. Concrete evidence should be presented and the garda should state the reason he or she believes it and convince the judge of it. This tramples on the discretion of the judge who should have all the evidence adduced before him to show compelling reasons. There should not be simply opinion cases.
I know that when this State was under very serious threat we had a similar provision to allow the protection of the integrity of the State and its fundamentals, which provided for people to be incarcerated on the basis of opinion evidence from senior police officers. This would take such an idea and transpose it into a different category.
This has certainly recommended itself as part of the armoury to prevent people who are in real danger of recommitting offences from walking free but I do not believe it is the way we should go. Senior gardaí should go into court and point out the evidence sheet against a person, indicating the chances of a crime being committed again. The notion that a court is obliged to have regard to a mere statement as evidence is not a principle I am happy with. On balance, the more I have thought about it, the less happy I am with this section.
Amendment No. 34 in my name is now captured, as was promised by the Tánaiste in his response on Committee Stage. If I do not agree with the paragraph, it at least makes more sense now in my judgment, the word "considered" having been dropped.
In this instance I support the formulation proposed by the Tánaiste. I always had the view that a judge, in coming to a decision on bail, should take into account the views of the Garda Síochána. This is particularly relevant in light of the previous record of the accused and his or her associations with other people. A garda should be able to offer a view that there is a likelihood of a further offence being committed if the person in question is admitted to bail. It is even more appropriate in a case where there may have been threats, intimidation or danger of the same against witnesses.
I support the idea that the approach should not just be possible but approved of in the context of a bail application. I understand the points raised by Deputy Howlin.
I have read again the judgment of the Shortt case and it certainly tipped my view. It was a very learned opinion by the Supreme Court, obviously rehearsing case law from the United States. I am beginning to take liberties.
We all rely on the Garda Síochána and in the past we have probably given too much weight to its mere opinions on these matters. This House should also learn from the ongoing revelations of the Morris reports. They must have meaning and be reflected in what we do. The Shortt case and the Supreme Court decision in that is a compelling argument not to proceed in this way. I am sorry for interjecting.
Perhaps we might hear the Tánaiste.
With amendments Nos. 28 and 35, Deputy Ó Snodaigh is proposing that "may" should be removed, casting an obligation on the court to go through this and consider the issue. I wish to make it clear that I believe it is the media's obligation, as well as that of the court, to ensure justice is not contaminated. If the word "shall" was put in that place, people could say that if the court did not direct an exclusion, a person would be free to say what they wished. Therefore, the media must share responsibility and it is not a passport to freedom in reporting a case if the court did not go through it to see what could prejudice a subsequent trial.
With regard to the term "considered reasonably necessary", I have had much thought on the issue. It reflects the wording in the Constitution, and the Constitution, properly interpreted, leads that the term "considered" means considered by the court and not by anybody else. The term "considered" in the constitutional amendment was a reference to a consideration by the courts in these matters.
The Tánaiste has dropped it.
I have taken it out. That is the point.
Yes.
I do not believe the consideration to be that of the chief superintendent or anybody else. It is the court's consideration which is relevant. That is the first issue.
Some emphasis was put on the proposition that if I indicated the opinion of the chief superintendent to be reasonable evidence, it would in some sense force the court's hand and give a particular weight to the evidence of the chief superintendent. I would ask the House to consider such evidence to be admissible. That clearly underlines my intention, which is that the court will decide what weight to attach to such evidence after it is admitted.
The court can indicate it hears Chief Superintendent Bloggs giving his opinion that it is reasonably necessary to deny bail in a case to prevent the further commission of serious offences. It does not mean that this is, of itself, determinative of the issue and, if it is not contradicted, that it decides the issue. If it is simply admissible as evidence, it would clearly underline that the court must decide the weight to be attached to the evidence in question.
With regard to the general proposition, it is the case at the moment that bail decisions are largely dealt with on the basis of evidence as to what is likely to happen. Currently a District Court, High Court or other judge listens to evidence in bail applications as to whether the accused is likely to turn up to the trial if granted bail. It would be one person's view against another but the court attempts to decide it on the basis of evidence, and it would allow both hearsay and opinion to be tested in court. If a sergeant states before a local District Court judge his belief that if a man is given bail and would never be seen again because of a residency in Northern Ireland, for example——
He would bolt.
That is evidence of his opinion, as evidence cannot be given as to a future fact in the same sense that primary evidence can be given of something seen by a person.
I emphasise that it is already the case that evidence of opinion is admissible, which is emphasised in subsection (6), which states "Nothing in this section is to be construed as prejudicing the admission in proceedings under section 2 of other evidence of belief or of evidence of opinion", whether they are tendered by a member of An Garda Síochána or any other person.
The last subsection is one I wished to draw to the attention of the House. It states "Nothing in this section limits the jurisdiction of a court to grant bail." That, taken with the other amendments tendered here, makes it very clear that no court is obliged, as a result of a chief superintendent giving his opinion, to withhold bail on that fact alone. It is a matter for the courts, which is what the Constitution envisaged.
One may therefore ask why subsection (1) should be included at all, given that a sergeant involved in a case can give evidence of opinion etc. Very frequently it is argued that a local detective comes head to head with a local burglar, determined to put him behind bars. The purpose of this amendment is to allow senior members of the Garda Síochána to express their considered opinions, if I may use the word "considered". I accept completely the point that gardaí are not infallible because they have attained senior rank. Trusted and senior members of the force will be allowed to express their considered opinions on the basis of all the facts known to them, by definition including hearsay, having thought about those facts. Such serious opinions, which will have a certain weight by virtue of having been tendered by a senior member of the force, will be admissible. A court will not view the expression of such an opinion as being part of a grudge match between a detective and a local baddie. The judge will bear in mind that a garda has togged out in court in circumstances which are not customary to add his voice to the issue under consideration. If the court deems it appropriate, some weight may be attached to the fact that a senior member of the force has come to court to express his opinion.
If I were a judge, I would consider the possibility that a hostile and unpleasant member of the Garda Síochána might have a gripe with a person he arrested last night. If I were hearing the bail application of such a person, with all the relevant documentation in front of me, I would take into consideration the appearance in court of a chief superintendent. Judges will use their common sense to appreciate that a chief superintendent is not coming to court because he has nothing better to do that morning. Chief superintendents, who are senior members of the Garda with serious responsibilities, are not normally found in courts arguing the toss on bail applications. If such a person comes to court to tender an opinion, he is liable to be cross-examined on his opinion. If I were a judge, I would not think the garda in question had a grudge and was trying, for that reason, to frustrate an ordinary decent criminal's pattern of low level behaviour by keeping him behind bars. I would understand that the matter in question was a serious one. That is why this provision has been included.
Will the Tánaiste take a question on this issue, in the interests of clarification?
Yes.
Is there a danger that we are introducing another exclusionary rule? What about a superintendent, inspector, sergeant or ordinary member of the force?
That is the point I made about the proposed new section 2A(6) of the Bail Act 1997, which is designed to provide that other people's opinions are received in the ordinary course of events.
Such people appear to be precluded from giving an opinion.
No.
Of course they can give a view on the likelihood of somebody turning up for trial or intimidating a witness, for example, but they seem to be precluded from giving evidence——
No, that is not——
——or outlining their views on whether the person might commit another serious offence.
The exact point I was making was that it does not have that implication. The proposed new section 2A(6), which states that nothing in section 2A, including subsection (1), "is to be construed as prejudicing the admission in proceedings under section 2 of other evidence of belief, or of evidence of opinion, whether tendered by any member of the Garda Síochána or other person", was included specifically to address the point made by Deputy O'Keeffe. If we had not included section 2A(6), there might be an inference that the only way to prove the opinion of the force in this regard would be to bring a senior member of the Garda before the court.
A chief superintendent, specifically.
Sergeants, inspectors and superintendents, when it is relevant to them, give evidence in the average District Court if they believe the person before the court is a serious drug offender who will reoffend if released on bail. Their opinions are considered by the court in such circumstances as an acceptable expression of opinion. I thank the Deputy for raising these concerns because the proposed section 2A(6) arose precisely from them. This subsection was added at a late stage in the process to make it clear that we were not tying ourselves to the proposition that expressio unius est exclusio alterius — by mentioning one specific way of proving something, one wipes away all other ways of proving it.
It does not have to be a chief superintendent at all then.
No, it does not. That is the point I was just making. If a chief superintendent togs out in court to give evidence in the form of his opinion on the matter, he will not be told that a sergeant has already given such evidence. He will not be asked why he is in court, or whether he is trying to browbeat the judge. It might be considered that this involves throwing more and more people in. The purpose of enabling the chief superintendent to come to court is to underline that a senior member of the Garda, having considered the material available to the force, has formed an opinion which he is offering to the court and which is admissible as evidence. The court is free to reject such evidence, having heard it. The court can be sure that the opinion in question is the corporate view of the Garda, as tendered by an officer of serious rank in the force. That is what the effect of this provision will be.
It is a form of heavyweight evidence.
I will return to the point I made a moment ago. If I were a judge——
The Tánaiste has a great hankering for such a position.
——I would wonder whether the local detective was trying to keep the guy before the court behind bars to teach him a good lesson for not making a voluntary statement, or something like that. I would wonder whether that was what was going on before me. In such circumstances, I would wonder there was a grudge match between two people with differing opinions about the facts of the relevant case. I might also wonder whether it was a case of the State, through a senior officer of the police force, coming to court to offer the senior corporate opinion of the Garda on the issue on a serious basis. That is what it is all about.
I am concerned that the way this section is framed will mean that a statement of this nature given by somebody below the rank of chief superintendent will not be admissible as evidence. In other words, it will be decided that refusal of the application is reasonable necessary for the purposes of——
That is what the proposed new section 2A(6) is there for.
I am somewhat worried that the outcome of this provision may be controversy, at a minimum. At worst, it may lead to such evidence being excluded.
I am conscious of time and aware that we want to proceed with these sections. However, our debate on this section has been extremely useful because the more we debate it, the clearer it becomes that the proposed amendment No. 33 is a horse of an entirely different colour to the subsection as originally presented by the Minister. The original subsection was commented upon by, among others, the former Attorney General, John Rogers, who thought it unconstitutional.
The Minister has dressed the matter up rather well but it has become a completely differently animal. He is now proposing simply that a chief superintendent can give evidence which is admissible. That was not contained in the first draft of the Bill, which provided what was almost a trump card to the chief superintendent who could give his or her word and the court would act on it. The fear was that such a provision would undermine the constitutional ability of the court to make the determination. I am much happier with the present formulation, although I do not consider it a great advance. Dressed up though it is, I do not foresee many chief superintendents togging out, as the Minister put it, to make a case that a superintendent or inspector could make equally well in respect of serious matters. That will possibly happen in very serious cases to give the signal the Minister requires. I hope the phrase, "foreign papers please copy", will apply and that the fundamental change to this section is identified and understood outside this House.
I assure Deputy Howlin that it is a fundamental change. The original statement contained two elements. I accept there is a fundamental change in regard to the word "considered". I did not have to read about the phraseology in The Irish Times because I became worried about it when the Deputy first raised it.
It was not at all a matter raised on foot of The Irish Times.
That was the Deputy's point. I was worried about the issue, so I thought about it, looked at the Constitution and said that it was to be considered by the court and not by anybody else. That is a significant change.
The phrase "shall be evidence" was modelled on the Offences against the State Act, according to which a chief superintendent's opinion is evidence that a person is a member of the IRA on a particular date. I do not agree with the proposition enunciated in The Irish Times because I have experience of the operation of that Act, having been involved in some of the cases that argued the meaning of the provision. I have witnessed instances in which people have been acquitted on the basis of a sworn denial where there was nothing to support the evidence of the chief superintendent.
It is not solely or mainly sufficient.
Debate adjourned.