Criminal Justice Bill 2007: Report Stage (Resumed) and Final Stage.

Debate resumed on amendment No. 28:
In page 10, line 15, to delete "may" and substitute "shall".
—(Aengus Ó Snodaigh).

This amendment has been discussed for a time and there are other more pressing amendments to be discussed. While I welcome the fact that the Minister has moved somewhat with his amendment No. 33, it is still the case that the statement from a Garda superintendent is admissible as evidence, yet in section 2A(2), evidence given by such a member in the proceedings is not admissible in any criminal proceedings against the applicant. I find it strange that it can be used as evidence in one part of the proceedings and is prohibited from being used as evidence in the next stage. It now seems that the opinion of a garda under the rank of chief superintendent is not admissible as evidence. A member of the Garda Síochána can make a presentation but the suggestion is that only evidence from a Garda superintendent is admissible as evidence. This seems to be a contradiction and will force the chief superintendents, assistant Garda Commissioners and the Garda Commissioner to attend court on a more frequent basis. I question whether this is a justifiable use of their time. I am still of the opinion that we should not proceed with this section and that even though the Minister stated that the media would have a role to ensure that publication of evidence is not prejudicial, the court must be tied because it controls the evidence in front of it and if a newspaper publishes material prejudicial to the accused person's right to a fair trial, this can be captured. Even though I have a problem with the section I am still of the opinion that amendments Nos. 35 and 36 should proceed as they would make the legislation stronger.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendments Nos. 29 and 30 not moved.

I move amendmentNo. 31:

In page 11, to delete lines 2 to 32.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendment No. 32 not moved.

I move amendment No. 33:

In page 11, to delete lines 7 to 10, and substitute the following:

"refusal of the application is reasonably necessary to prevent the commission of a serious offence by that person, the statement is admissible as evidence that refusal of the application is reasonably necessary for that purpose.".

Amendment agreed to.
Amendments Nos. 34 to 36, inclusive, not moved.

I move amendment No. 37:

In page 12, line 11, after "bail" to insert "and shall otherwise be of good behaviour".

This amendment deals with the recognisance that must be entered into by somebody released on bail. The section states: "(a) the recognisance shall, in addition to the condition requiring his or her appearance before the court at the end of the period of remand of the accused person, be subject to the condition that the accused person shall not commit an offence while on bail,”. Traditionally over the years, any such recognisance always carried the additional wording that the person released on bail had to be otherwise of good behaviour. The question arises as to why a somewhat more lenient situation should arise. I would expect that anybody who would be released on bail, apart from being obligated not to commit offences, should be of good behaviour while on bail pending trial. The purpose of the amendment is to reinstate what has been the traditional recognisance of good behaviour while on bail.

I do not want to take up too much time on this point. The legal advice available to me is that it is unduly vague as to its meaning. To require the person to be of good behaviour in addition to not infringing the criminal law is, in the view of the legal advice available to me, going a step too far and is doubtful under ECHR terms.

If that is the legal advice available to the Minister I am certainly listening to it. Other people advising me raised the question as to why section 9 proposes to remove the requirement to be of good behaviour. I will have to take the Minister on trust on this issue and I will not press the amendment.

I will elaborate the point a little more as I may have been too short in my explanation. I do not wish to sound like a telegram. It is a common usage in terms of suspended sentences that a person keep the peace and be of good behaviour. In a suspended sentence the court is saying it is letting a person out not simply on the basis that he or she does not commit a further criminal offence but that he or she adheres to a high standard of behaviour and this is put into the recognisances that a person enters into when a suspended sentence is imposed. However, the position is different where somebody is entitled to be at liberty. The person is presumed innocent and is entitled to be at liberty. One's entitlement to be at liberty is not merely conditional on one not breaking any laws but generally being beyond reproach. The Attorney General has advised me that that is a bridge too far as a ground for depriving somebody of his or her liberty, that the person is likely to be below model citizen status. That would infringe ECHR standards as a condition of allowing somebody not to be in prison when they are still presumed innocent.

I will not delay on this point. It has traditionally been a requirement to be on good behaviour——

That is the case on suspended sentence.

It was also traditionally the case for somebody released on bail. Why reduce and minimise the conduct expected from somebody who is released on bail?

Because I do not want the statute struck down.

The statute has been there for generations and I question why it should be removed.

So was the 1935 Criminal Law Amendment Act.

I refer also to that grey area of anti-social behaviour. Such behaviour may not lead to someone committing a criminal offence — there is a requirement of proof that the person did commit such an offence — and there would be a difference between them and a person involved in unacceptable behaviour. However, if the advice from the Attorney General is that it would be unwise to include it because it would lead to the statute being declared unconstitutional, I will not press the amendment.

Amendment, by leave, withdrawn.

Amendments Nos. 38, 41 and 43 are related and may be taken together.

I move amendmentNo. 38:

In page 13, to delete lines 1 to 47, and in page 14, to delete lines 1 to 17.

Amendment No. 38 encapsulates my intention in respect of this section, which deals with electronic monitoring of certain persons who have been given bail. We argued the practicalities of and the flaws relating to the electronic tagging system last year when we debated what became the Criminal Justice Act 2006. I remain unconvinced as regards the system but that is not my key point.

My main point regarding the electronic monitoring of persons on bail is that it impinges upon the presumption of innocence. In my view, tagging represents a dangerous development. The Tánaiste stated last year that his support for it was waning but I have not seen anything since which indicates that his enthusiasm has been re-energised, particularly when one considers that provisions enacted last year have not yet come into effect and the pilot scheme has not commenced. Reviews carried out in England, which has a similar scheme, indicate that it has proven to be twice as expensive to electronically tag offenders as it would be to have them supervised by members of the probation and welfare service. I have argued that the proper resourcing of the probation and welfare service here would go a long way towards addressing the key concerns that sparked some people's interest in electronic monitoring.

There is also a presumption that electronic monitoring will prove to be the be all and end all and that it will solve some of the problems to which others referred as regards people associating with known gang members, etc., and in respect of restricting their movements. Electronic tagging or monitoring only confines people to specified areas or allows them to be tracked; it does not deal with those who visit such individuals — be they repeat offenders, bail offenders or whatever — or those who become involved in a common cause with them.

Rather than privatising an aspect of Irish criminal law, I urge that we should use the traditional methods and provide proper funding for the probation and welfare service in this regard. The Comptroller and Auditor General's report on the service in 2004 indicated that it was effective and provided good value for money. However, it has not been properly resourced to ensure that it can deliver at a higher level than has been the case in recent years.

The main point regarding electronic tagging, and the concerns I raised in the past, has been echoed in some of the observations made by various groups in respect of this matter. If we had more time to debate the Bill, we could have examined this matter in greater detail and considered evidence as to the effectiveness or otherwise of tagging. We could also have investigated whether it impinges on existing rights. The Human Rights Commission has cited a number of rights it believes would be impinged upon. In the context of the European Convention on Human Rights, it has been stated that tagging would amount to the surveillance of people who are presumed innocent, that it would equate to their being monitored electronically, and would interfere with their rights to private and family lives and to freedom and peaceful assembly and association. There are also rights guaranteed under the Constitution upon which this provision could potentially impinge.

The other aspect of this matter relates to the wide discretion that is given regarding the type and content of orders that can be granted in respect of electronic monitoring. As already stated, potential exists in the context of the violation of fundamental human rights. I accept, however, that we are discussing people who would have been charged with, in some instances, violating the human rights of victims and interfering with their right to private and family lives.

As stated earlier, there is a presumption in the justice system in this State that a person is innocent until proven guilty. However, this provision, and some of the other measures introduced in recent years, cuts back on that presumption of innocence. Electronic monitoring involves tagging people with something similar to the yellow star that Jews in Nazi Germany were obliged to wear. Most tagging systems involve the wearing of some type of device which sets a person apart from others. The bail system does not set people apart. It does, however, respect the presumption of innocence and allows individuals, until such time as they are either found guilty by the courts or set at liberty having being found not guilty, to continue their working and family lives and to draw up a proper defence. People are not made outcasts under the bail system because they are not obliged to wear electronic devices or whatever.

I have already argued the case in respect of giving away responsibility for another aspect of our criminal justice system to the private sector. However, it is terrifying that the State is increasingly delegating its responsibilities in respect of crime control and justice to the private sector without providing a full explanation as to how companies which operate in that sector will be held to account and monitored, the level of expertise they will possess and what the cost will be to existing services such as the probation and welfare service. I ask that this part of the Bill be struck out and at the very least that we see the results of the pilot programme promised, by the Tánaiste when the Criminal Justice Act 2006 was passed, dealing with the electronic tagging of people who were convicted. This was a different matter altogether and although I had problems with it, it had more logic than the provision suggested here.

I will be brief because I am conscious we have only approximately one hour and ten minutes left in which to discuss the Bill. I hope we reach the issue of periods of detention which we have not discussed at any level in the House. We did not reach it on Committee Stage.

My view on electronic tagging is well-rehearsed and we debated it previously. Deputy Ó Snodaigh's amendment proposes the deletion of section 11 with which I would be more comfortable on a number of bases. By the Tánaiste's own admission, the technology does not exist to do it. As we know, two types of technologies are involved. Fixed point technology confines a person to his or her home and this works. Electronic monitoring, which allows one to know where a person is on a broad basis, is less reliable and extremely expensive.

I am concerned on a number of fronts and not only about the unreliability of the technology. If tagging becomes acceptable a significant decision must be made by a court to deny a person his or her liberty and bail and lock him or her up. If tagging becomes the norm it is an easier decision to make and, to put it at its mildest, it is a severe imposition on the notion of liberty. The basis of our judicial system is that one is innocent until proven guilty. Depriving someone of his or her liberty before he or she is proven guilty can only be done for the clear reason of the safety of the public. We all modified our views on this because of serial offences of people awaiting trial. To put it bluntly, in some instances the criminal justice system is slow and people wait many months or years for a court hearing. Sometimes people contrive to wait many months or years for a hearing by putting up barriers themselves.

For these reasons I would prefer if these proposals were put on hold. However, from what I understood the Tánaiste to have told us on Committee Stage, he wants a legislative basis for this but does not see it being implemented immediately. Perhaps he will confirm this now. It must first go through a procurement arrangement, obtaining the permission of the Minister for Finance. A scale of implementation will then be needed because one would not establish an entire apparatus to monitor one prisoner and a critical mass would be necessary. A series of logistical steps would follow. This indicates that while the Tánaiste proposes we legislate for it, we are a long way from implementing it.

With regard to bail, I take the view it is better to release people and electronically tag them than to keep them in custody. It is better for the accused person, the State and the taxpayer who will not need to pay for the expense of keeping them in custody. My problem with electronic tagging generally is that steps have not been taken to implement it. I have no difficulty with the provisions in the Bill. Neither did I have any difficulty with the provisions in the previous Criminal Justice Act in which, with some reluctance, we ended up with a provision for tagging in a post-release system. However, nothing was done in the meantime. It was jaw-jaw but no tagging and we still have no sign of tagging.

I must entirely reject the suggestion that we are venturing into untested waters. Tagging dates back more than 20 years in other countries. It was tried and works successfully in Canada, many EU countries and the UK. They have experience of hundreds of thousands of people released on a tagging basis. It has all the advantages of allowing a person to be released. He or she can continue to work and continue with their social and other relationships and the taxpayer does not need to pay for their custody.

On the question of cost, tagging is a far cheaper option than keeping someone in custody. While I accept the equipment available is not fully developed, the tagging part is fully tested and proved. The GPS tracking system has yet to be fully proved. However, there is no reason we should not go ahead with the tagging system immediately. It works in other countries. Why should it not work here? My complaint is that it has not been put into operation here.

I also reject any suggestion that a tagging system is more expensive than custody. Figures from the UK state it costs £880 per month which is approximately €1300 per month. This amounts to €200 or €300 per week. Consider this as opposed to a cost of a couple of thousand euro per week to keep someone in custody.

That is like comparing bus routes or the underground. It is a matter of scale.

Of course, but one must put it in place to establish the scale. We must have a first person to be tagged. It works and the suggestion that it is like the Star of David in Denmark during the Second World War is wrong. A tag is like a watch worn on the ankle or wrist. It is generally placed around the ankle where it is covered by a tracksuit or a pair of jeans. In a recent case in the UK a Premiership footballer was tagged and wore it on his leg during a match. I do not see any practical difficulties from this point of view. We must take on board that what worked in other countries can and should work here. I wish to see a wholehearted endorsement of this approach and, from a practical point of view, the implementation of it. I fear implementation must now wait the departure of this Government and the election of the next.

The Deputy is correct. It will have to await the election of the next Government but who is in the Government is a completely different matter. I am watching the entire spectrum of opinion from Deputy Ó Snodaigh who is completely against it to Deputy Howlin who is probably against it but will go along with it for convenience sake to Deputy O'Keeffe who is strongly in favour of it.

Where stands the Minister?

I am somewhere between Deputies Howlin and O'Keeffe.

In the middle.

That is where I am. We have dealt with thisad nauseam and we should stop at this stage.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendments Nos. 39 to 44, inclusive, not moved.

I move amendmentNo. 45:

In page 15, lines 7 to 9, to delete all words from and including "including" in line 7 down to and including "fit" in line 9 and substitute the following:

"as he or she consider appropriate and as approved by both Houses of the Oireachtas with the Probation Service".

I will not pursue this for much longer. The purpose of the amendment is to try to ensure that if we go down the route suggested at least some type of approval by the Houses of the Oireachtas is required rather than by the Minister. I argued this point before.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.

I move amendmentNo. 46:

In page 15, between lines 12 and 13, to insert the following:

14.—The Criminal Justice Act 2006 is amended by the insertion of the following Part, after section 197, as Part 16:

"PART 16


198.—(1) Where an enactment or rule of law creates an offence but provides for a qualification, exception, exemption, proviso or excuse (all of which are subsequently referred to in this Part as ‘provisos'), whether accompanying the description of the offence or otherwise —

(a) the proviso need not be specified or negatived in a complaint charging that offence,

(b) at the hearing of a complaint charging that offence, no proof in relation to the proviso is required on the part of the prosecution,

(c) if the defendant at the hearing of a complaint charging that offence wishes to rely on the proviso—

(i) the burden of proving such proviso rests on the defendant,

(ii) the court shall, unless the interests of justice otherwise require, allow the prosecution to re-open the case in order to adduce evidence in rebuttal of evidence adduced by the defendant under subparagraph (i).

(2) In determining whether subsection (1) applies to an enactment or rule of law creating an offence, regard shall be had to—

(a) whether the provision concerned—

(i) reduces the scope or extent of the factual outline that delineates the ambit of the offence,

(ii) excludes specified persons or cases from the class of those who would otherwise fall within that factual outline, or

(iii) otherwise narrows the effect of the enactment,

(b) whether, notwithstanding that a particular fact is provided for as an ingredient of an offence rather than the non-existence of that fact being provided for as giving rise to a proviso, the fact in question is of such a nature that its non-existence in any particular case would be exceptional and its existence in such cases generally can therefore reasonably be presumed,

(c) whether there is a reasonable possibility that a state of affairs adverted to by or on behalf of the defendant may exist or may have existed,

(d) the comparative ease or difficulty for the prosecution and the defendant in discharging the burden of proving the fact in question,

(e) the public interest in ensuring that the prosecution should not be required to prove facts peculiarly within the knowledge of the defendant or to disprove facts that are improbable,

(f) the presumption of innocence and the constitutional rights of accused persons.

199.—In any proceedings against a person for an offence—

(a) the court, in determining whether there is a case to answer, shall not have regard to any issue raised by or on behalf of the defendant, in a submission that there is no case to answer, in relation which it is for the defendant to submit, or point to sufficient evidence already received, to persuade the court there is a reasonable doubt as to whether such an issue may reasonably exist,

(b) (i) the court (or, subject to the judge’s directions, the jury), in determining whether that person is guilty of the offence charged (or of any other offence of which he could lawfully be convicted on that charge) may, in relation to the issue sought to be raised by or on behalf of the defendant, draw such inferences from the failure of the defendant to submit, or point to sufficient evidence already received, as appear proper,

(ii) such failure may, on the basis of those inferences, be treated as, or as being capable of amounting to, corroboration of any evidence in relation to which the failure is material,

(iii) a person shall not be convicted of an offence solely on an inference drawn from such a failure.".

I do not intend spending too long on this, it is an amendment we have discussed before which was suggested by my legal advisers. It provides that where the criminal law makes a prohibition subject to an exception, it is for the defendant to prove that the exception applies, not for the prosecution to prove it does not apply. I used a very inelegant example on Committee Stage.

In essence, the first subsection describes "where an enactment or rule of law creates an offence but provides for a qualification, exception, exemption" or so on, described as a proviso. If the defendant, at the hearing of a complaint charging the offence, wishes to rely on that proviso, the burden of proof rests on the defendant.

The Tánaiste understands the point at least and responded to it on a basis of understanding when I argued the point on Committee Stage. I believe he is supportive of the idea behind it but does not feel this to be the appropriate vehicle for it, as far as I understand. If that remains his position I will not delay the House in getting on to the meat of what we must discuss in the remaining hour. Perhaps the Tánaiste will indicate if this is the right understanding.

I am always in favour of codifying general law of this kind one way or the other. I am not sure I agree with every single detail in this amendment and I am not in a position to accept it today.

Amendment, by leave, withdrawn.

I move amendment No. 47:

In page 15, between lines 12 and 13, to insert the following:

14.—The Criminal Justice Act 2006 is amended by the insertion of the following Part, after section 197, as Part 16:

"PART 16


198.—(1) In addressing a court on the question of sentence, a solicitor or counsel on a defendant's behalf may address the court, on his or her client's instructions—

(a) on the evidence already received by the court, and

(b) as to the defendant’s current state of mind in relation to the offence of which he or she was convicted.

(2) A court shall not, unless it considers the interests of justice require it to do so, receive or place reliance on other statements made by a legal representative in relation to which evidence from a witness, rather than submissions from a legal representative, ought more properly be received.".

The Tánaiste indicated that this is the current practice and I am suggesting it should be the current law. The purpose of the amendment is to ensure there is no abuse of the plea of mitigation. It ensures the defendant, if he wishes to rely on anything in his or her plea of mitigation, must produce facts in evidence and not merely asserted.

We had a discussion on this point on Committee Stage. If I recall correctly, the Tánaiste's view was that he had no difficulty with its principle, but it is part of normal procedures now, being current practice. He did not see a need for it to be legislated for. Perhaps he has had time to reflect further, and it might be incorporated in this legislation.

To some extent this proposal is a statement of current law.

Law or practice?

The practice. I would be loathe to incorporate that into law without thinking about it very carefully. The current practice allows flexibility and where facts are not really in dispute, there is no need to have primary evidence consisting of defence lawyers stating their client is a certain age, his family is a certain size or his employment history is this way or that. If this was strictly applied, the employer would be required, along with birth certificates and other items, although they may not be at issue in the case.

Amendment, by leave, withdrawn.

I move amendmentNo. 48:

In page 17, to delete lines 23 to 29 and substitute the following:

"(3) Regulations under this section shall require the prior approval of both Houses of the Oireachtas following debate.".

I have already explained this. It is a provision that the Houses of the Oireachtas would approve regulations as too often such regulations are made by the Minister, rather than approved by the Houses. I have argued this point before.

Although the Tánaiste has argued there would be too many regulations for the Houses to deal with, the Joint Committee on European Affairs Sub-Committee on European Scrutiny has demonstrated a mechanism to deal with regulations and directives quite quickly while simultaneously allowing democratic scrutiny. Considering the major changes in the area of justice, regulations should come before the Houses in some form or other. They could pass quite quickly through the Houses themselves or a committee of the Houses.

We have also discussed this at great length and my position is fairly clear.

Amendment, by leave, withdrawn.
Amendment No. 49 not moved.

Amendments Nos. 50 and 72 form a composite proposal. Amendments 56 to 72, inclusive, are technical alternatives to the same part of the Bill. Amendments Nos. 168 to 171, inclusive, are related. We will discuss amendments Nos. 50; 56 to 72, inclusive; and 168 to 171, inclusive, together.

I move amendment No. 50:

In page 20, between lines 20 and 21, to insert the following:

24.—(1) In this Part—

"imprisonment" includes—

(a) detention in Saint Patrick’s Institution,

(b) detention in a place provided under section 2 of the Prisons Act 1970, and

(c) detention in a place specified under section 3 of the Prisons Act 1972,

and "prison" and "sentence of imprisonment" shall be construed accordingly;

"remission from the sentence" means, in relation to the sentence imposed on a person, the remission which he or she may earn from that sentence under the rules or practice whereby prisoners generally may earn remission of sentence by industry and good conduct.

(2) In this Part, references to an offence specified inSchedule 2 shall include—

(a) references to participation as an accomplice of a person who commits such an offence, and

(b) references to an offence of attempting or conspiring to commit, or inciting the commission of, such an offence.

Will the Tánaiste explain?

Will the Tánaiste explain this new proposal?

On Committee Stage I indicated I would look very carefully at this part of the Act to see precisely what we were trying to achieve and whether we had achieved it. We went through a radical revision in light of everything said in this House, having carefully listened to all the remarks made from every quarter. We have amended it to reflect what I believe is a consensus in this House on the issue, and I have done my utmost to be faithful to what I believe is where the centre of gravity of opinion in this House lies on this issue.

These amendments concern section 24 of the Bill and Schedule 2, which applies to both sections 24 and 25. Section 24 provides that where a person has been convicted on indictment of an offence in Schedule 2, and within seven years commits a further such offence, then the sentence for the second offence must be at least three quarters of the maximum provided for that second offence, or ten years where the maximum is life imprisonment.

The section has already been amended to provide that it only applies where the sentence for the first offence was at least five years imprisonment. As I indicated on Committee Stage I wanted to examine this further to see if it could be more tightly focused on what people would be happier to describe as gangland offenders. This group of amendments is intended to achieve this, although "gangland" will never be scientifically defined as a term.

A new interpretation section, to be section 24, is proposed in amendment No. 50, and it defines terms for the purposes of the Bill. Amendment No. 72 is consequential in that it deletes section 24(16) of the Bill, which sets out the necessary definitions at present.

Amendment No. 59 amends section 24 and deals with the calculation of the seven year period between the first and subsequent offences. This period is referred to as the specified period. The seven year period applies between the end of the sentence for the first offence and the date of commission of the subsequent offence. Where that period elapses without a subsequent offence having been committed, then this section will not apply.

The amendment gives further clarification on two issues. First, no period of imprisonment during the seven years for an offence, other than a period in respect of a qualifying offence in Schedule 2, is to interrupt the running of that seven year period. For example, a sentence of imprisonment for a road traffic offence will not be counted as road traffic offences do not feature in Schedule 2.

A sentence for a Schedule 2 offence which is the result of a summary conviction is not counted either. In effect, a period of imprisonment for an offence other than a qualifying Schedule 2 offence will not stop the clock and the seven year term will keep running. This qualification is aimed at highlighting the targeted nature of section 24, which is aimed at gangland offences and other convictions. Sentences are not to interfere with that focus on that category of offence.

The second issue addresses the question of serious offences committed while in prison. Deputy Jim O'Keeffe raised the point that people might direct crime from within prison, and as originally tendered, these people would be out of the net completely. There is clarification in that the section applies when a subsequent Schedule 2 offence is committed while serving the period of imprisonment for the first Schedule 2 offence. If a person commits two Schedule 2 offences, one organised from within prison — perpetrated on a colleague or organising an outside event — this provision will apply.

This section will normally apply where the person has reoffended within seven years of release at the end of the sentence for the first conviction. However, this amendment ensures that the section also applies where the offender commits a further offence under Schedule 2 while still serving the first sentence for the Schedule 2 offence. In that case the seven-year interval is simply irrelevant. The mandatory minimum sentence requirements of this section will apply to the second offence committed while still serving the sentence for the first offence.

Amendment No. 71 is related to amendment No. 59. Amendment No. 63 updates the subsection reference in section 24(2) and is consequential on the amendment to section 32 of the Bill. Section 24(2) lists the sections under which mandatory sentences are already in place to ensure that the more generalised arrangements for the application of mandatory minimum sentences in section 24 of this Bill do not replace or supersede any more particular existing arrangements for mandatory sentences. The reference being amended relates to reoffending as it arises under section 27 of the Misuse of Drugs Act 1977. A later amendment to section 32 of the Bill renumbers certain subsections of section 27 of the 1977 Act. I will not get into the tiny detail of those changes unless Members wish me to do so.

Amendment No. 57 is consequential on amendment No. 64, which proposes the inclusion of a new section 24(3) in the Bill. The purpose of the new subsection is to ensure that section 24 is not applied in a way that is disproportionate. It will ensure that the legislation will not have an unconstitutional binding effect on a court. This is a safety valve for the Judiciary, to put it bluntly. If, having looked at this provision, the courts decide that what the Oireachtas has intended is fine, constitutionally, but is disproportionate, they can decide not to proceed in such a manner.

Will this provision make this section of the Bill as mandatory as the drugs offences provisions?

Exactly. It will provide for the constitutional safety valve that exists in other areas as well. In particular, it ensures that the court can distinguish between gangland cases and other cases in which the convicted person may technically qualify to be treated in accordance with section 24, but where it would be disproportionate for him or her to be treated in such a manner. Such a circumstance could arise if an addict or a vagrant were to engage in aggravated burglary, for example, using an implement that is not a gun to threaten the victim. While such a crime would be serious — I do not suggest otherwise — it might be unfair to impose a sentence at a level required by section 24, having regard to the particular circumstances of the case and the lack of any link to organised crime. The maximum sentence for aggravated burglary is life imprisonment. A sentence of at least ten years would be called for under section 24 in the case of a second such offence.

The new subsection I propose would give the courts discretion in cases like that to which I have referred. It is designed as an anti-gangland, or anti-repeat of serious offences, measure. As we cannot define "gangland crime" in a clinical manner, we have decided on reflection, having listened to what was said during the debate in this House and outside it, to provide that a court can choose not to apply this provision if, in all the circumstances, it regards it as disproportionate. The court can disregard this guideline and should do so if it finds that a constitutional value is at issue.

In this section, the House is giving the courts a clear guideline which will ensure that cases of people behaving in a seriously criminal manner, and repeating such operations within seven years, are dealt with severely. There is a need for a deterrent. People who have served lengthy sentences for one of the serious crimes mentioned in Schedule 2 must realise that they will be given serious sentences if they are caught going back to their old ways, particularly in a gangland context. This provision is intended as a deterrent to ensure that those who spend all their lives participating in gangland crime do not think they will get successive soft sentences. Some such people optimistically think they can continue to dabble on the edges of gangland and organised crime.

Amendments Nos. 68, 70 and 71 have been tabled to improve the clarity of the Bill's cross-references. Amendments Nos. 168 to 171, inclusive, propose to delete a qualification that currently applies in the case of murder, which is that such an offence arises for consideration under Schedule 2 — offences for the purposes of Part 3 — only if it involves "the use of a firearm or an explosive". This limitation would omit all other murders and, equally, could include murders which are not related to gangland activity. It was decided, therefore, that the qualification was unhelpful and confusing.

To which amendment does the Minister refer?

I am speaking about amendment No. 168. The narrowing down of——

Will all murders now be included in the Schedule?

I thought it was ludicrous that a murder in which somebody was beaten to death with a baseball bat was not to be included.

Exactly. The Deputy made that point on a previous occasion. If a person who was sent to jail for offences involving organised crime knifes somebody to death in a prison cell, it would be absurd to take an approach to that murder which is different from the approach which would have been taken if a firearm or an explosive had been used.

Amendment No. 169 removes child trafficking and pornography offences, as well as offences involving trafficking in illegal immigrants, from the list of offences in Schedule 2. I recognise that the offences in question are serious and are often carried out in a highly organised manner, sometimes by those who are known as gangland figures. Such categories of offences do not feature prominently in the nature of gangland activity we are considering, however. Given that the inclusion of an offence in Schedule 2 can have significant implications — those convicted of such offences can face mandatory minimum sentences or be the subject of post-release supervision orders under Part 3 — it is important that we limit the scope of Schedule 2 to what can be justified and is necessary.

Can the Minister circulate a copy of Schedule 2 as it will look if these amendments are accepted?

I will see if I have a copy of it.

It would be helpful to see the new Schedule.

I have mentioned three of the provisions which are being removed. Amendment No. 170 provides for the deletion of the reference in paragraph 10 of Schedule 2 to "any offence under the Offences Against the State Acts 1939 to 1998". As I was anxious not to over-extend Schedule 2 and, bearing in mind that substantial powers are already provided for in the offences against the State legislation, I have decided to remove the reference to those Acts from Schedule 2. The necessary powers are already catered for in this Bill. I will arrange for the Deputy to be given a copy of the list.

Great. The reference to child trafficking and pornography offences in paragraph 3 of Schedule 2 has been removed from the list of offences in the Schedule.

Is paragraph 10 of the Schedule, the reference to the Offences Against the State Acts, being removed in its entirety?

Yes. Paragraphs 10 and 14 of the Schedule are being removed in their entirety.

Why is paragraph 14, which relates to the suppression of terrorism, being removed?

This is not an anti-terrorism Bill. These guidelines are being included to combat gangland activity rather than terrorism. We are broadening the terms of the reference to murder in paragraph 1 of Schedule 2 and we are removing paragraphs 3, 4, 10 and 14 of the Schedule.

Why is the reference to trafficking in children being removed when the reference to trafficking in illegal immigrants is being retained?

As the Deputy will appreciate, a trafficking Bill is being prepared in the Department of Justice, Equality and Law Reform. I do not want there to be all sorts of unforeseen sentencing consequences if I designate something to be a trafficking offence under that Bill. It is quite possible that a person from sub-Saharan Africa, for example, could be caught twice committing the reprehensible offence of trafficking children by bringing them to this country illegally. Such behaviour might not have any gangland connotations — it might not involve anything more than a little racket being run by a person on his or her own. I decided to proceed in this manner on foot of the consensus in this House that I should narrow the terms of Schedule 2 to ensure that it relates strictly to gangland activity. Having considered all aspects of this issue, I am of the view that the Schedule would be improved and made more coherent by the removal of offences which could be perpetrated by a gang but which are not indicative of a gang. That is really what we are aiming at. Therefore, I propose in these amendments to narrow the scope of Schedule 2 and to add a safety valve to provide that a court need not follow the guidelines if it regards them as disproportionate. I have heard people citing far-fetched examples of how these provisions could be used unfairly.

A person could fall under the terms of Schedule 2 by committing two robberies.

The robbery example disappeared when I removed the reference to burglaries. As I have indicated to the House, aggravated burglary can be committed at a low level on the spectrum of seriousness. It could arise if a person breaks into a house while carrying a spanner, for example.

It remains in it.

That is why we are introducing the measure on disproportionality. A court can consider this and decide it is a guideline in respect of repeat or serious offences but, having regard to the quality of the second offence, it would be a disproportionate reaction to the particular offence committed.

The more I hear from the Minister, the more I realise that a genuine and reasoned debate is needed on the issue of sentencing, with advice sought from experienced lawyers and others. A considerable difference exists between my approach to sentencing and the Minister's, who appears to use a smoke and mirrors strategy. He adopts a tough approach to mandatory sentencing while building the escape hatch of exceptional circumstances. Similarly, a tough approach is taken in this instance, in that a judge must apply a three quarter sentence for a second offence, yet the Minister accepts that judicial discretion must be allowed in terms of applying a lesser penalty for disproportionate circumstances. That fits into the same category of presenting a hardline argument and then opening the escape hatch.

That is what a flexible guideline means.

I am not objecting to that. My approach is entirely different and, with respect, better than the Minister's. It would not give rise to a situation in which I or anybody else has to examine or openly criticise the conduct of the Judiciary. It provides for the establishment of a registered database of sentences because it is beyond me to explain how we can proceed on sentencing without such a record. I do not think the approach being adopted by the Minister is the right one because there is an onus on us to establish a database. I accept the information being sought in my amendment is much too detailed but a register of sentences is a fundamental basis for proceeding on this matter.

The proper approach is not to play tough by demanding mandatory sentences which are not applied but to provide for a range or tariff of sentences. As I understand the matter, which is applicable in virtually every other common law jurisdiction. Given that it works elsewhere, why do we not have such a system in place here?

The third leg of my approach is an expectation that judges would apply sentences within the tariff. Judicial discretion would be allowed because that is a fundamental element of the democratic process and the Constitution, but a judge would be required to openly and transparently explain why he or she strayed outside the guidelines laid down by this House. That seems the proper way to achieve a balance.

I will not oppose the proposal now emerging from the Minister because it is better than the original measure, which I felt was a knee-jerk reaction to gangland crime. He wanted to show how tough he could be in dealing with that issue but now he has to moderate his approach. I believe he was on the wrong tack from the start. I would like to see the approach I am outlining put into effect because it will deal with gangland and other crime while also addressing in a more comprehensive manner the valid technical points raised by Deputy Howlin.

I will not delay the House further at this hour, except to say I will not oppose the measures proposed by the Minister. However, I genuinely believe he is heading in the wrong direction from a practical point of view and may leave us with a sentencing mess in the future.

Deputy Jim O'Keeffe is wrong in respect of one of his arguments. The Minister did not act tough at the end of last year in order to confront the gangland bosses but because of an electorate whose judgment frightened him. That is why he proposed the new gangland package which has turned out to be something different.

I am more comfortable with this section than I was with the original version. Like section 7, this is a considerably different animal than the original. I welcome the saver clause which the Minister has included. Although he denies it, he spent much of last year contriving to be at odds with the Judiciary. By uninviting himself to their Christmas drinks, he received great publicity and showed that he was the great man fighting the people's cause by being willing to forego his gin and tonic in the interest of the nation and face down his old pals and former colleagues. However, he cannot argue it both ways. He blamed the judges because the original mandatory sentencing on drug offences was not being implemented but the judges quite reasonably told him that if he wanted them to tighten the law by using opt-out clauses, he should provide for that. He is now including these opt-out clauses and although he will not be in a ministerial position to introduce them — the great irony is that he may become a judge himself — he will criticise the Judiciary for implementing the saver clause if it suits his argument.

Instead of an array of mandatory sentences to demonstrate the Minister's toughness, I welcome the narrowing of the range of offences. I especially welcome the removal of burglary and theft. While I am unsure whether aggravated burglary should remain, given that the threshold could be low for such an offence, the saver clause is that a five-year sentence is required, which means the offence cannot be trivial. We have moved from a one-year to a five-year tariff for offences, narrowed the offences listed in the schedule and provided for a saver clause to allow the judges to make their own discernment in each case, as is their constitutional right. I do not think, therefore, we have anything like mandatory sentences.

This Minister is good at building up a great battle by capturing the media but seems to lose interest once he has captured them. That happened in the case of the Garda Reserve.

They are like putty in my hands.

The Minister had won all the arguments on the Garda Reserve and faced down the Garda Representative Association and all and sundry. Now, however, we do not have a Garda Reserve.

We have a handful.

The Minister is a great man in theory.

As a politician, the Minister is a great debater but winning the debate rather than implementing policy seems to be his main aim. The people will make the judgment on that.

With regard to sentencing, we now have a completely different section 24. The apparent mandatory provision is nothing of the kind, since a saver clause is being introduced for judges to exercise discretion, something that should have been there from the beginning and that I am happy to see now. We have reduced the number of offences considerably, to what the Minister has now determined to be gangland offences. However, the notion of parsing and analysing crime is peculiar, since another crime will capture the headlines tomorrow against which we may wish specific measures.

It covers heavy grade criminality.

If I may be blunt, I would regard the trafficking of children as heavy grade criminality rather than people trying to bring their second cousin into the country. That is not trafficking, but there are those who traffic children in order to exploit them, a most grievous offence. Matters now removed from the Bill include serious offences against the State. We have seen the heads of the trafficking Bill, which will not be introduced by this Government. However, I hope that it will be brought in very early in the next Dáil, since the area needs legislation.

I will delay the House no longer, other than to say that I am more content with this version of section 24. I have moved from a position of being implacably opposed to mandatory sentencing to being convinced that, in the face of the drugs plague faced by this country, I must reluctantly support it in certain narrow areas. However, I am against its becoming the norm. I am totally opposed to the American system of "three strikes and you're out" whereby the prison system warehouses those whom one dislikes in society. One creates an underclass of people whom, after three "strikes", one locks up for ever. I know that the Minister is not doing that here, but his original proposals smacked of it.

I did not like those echoes, but even the current position would be better met by Deputy Jim O'Keeffe's proposal whereby this House would, in consultation with others, set a tariff for a first and repeat offence in each category, with judicial discretion regarding the appropriate tariff for each. That is a better approach and manifestation of the separation of powers between the Oireachtas and the Judiciary. We are in the business of laying down the law, but its implementation and application regarding international law and the Constitution are matters for the courts. I am very much attracted to Deputy Jim O'Keeffe's proposal as a better way of achieving our objectives, although I now believe that they will be achieved by the so-called mandatory sentencing, which is no longer so.

Like Deputy Howlin I am, believe it or not, a good deal more comfortable with this than with what was initially presented. The Minister has rowed back substantially on what he announced as his intention on mandatory sentencing. I have tried when dealing with the issue to persuade him to include some type of caveat or mechanism whereby judicial discretion is still allowed in certain circumstances. In this instance, I believe that he has done so, which is to be welcomed. He also listened to our debate before Easter, in which the extent of Schedule 2 was debated, once again under considerable time pressure. He has removed specific offences that I and others highlighted.

There are instances where trafficking is a humanitarian act, for example, bringing children into the country to reunite them with their relatives. However, if human trafficking of any type is carried out on an organised basis for exploitation, no Deputy would have a problem with our encouraging the Judiciary to come down very heavily on those convicted, since it is akin to slavery. However, there are instances that do not fit the pattern. I welcome the fact that the Minister has removed this instance, so that people who have broken the law on a humanitarian or non-profit basis do not suffer the full effect that the Bill's author intended when he first produced it. The same is true of the Offences against the State Act 1939 and the Criminal Justice (Terrorist Offences) Act 2005, which is being removed. As the Minister said, it is being covered in other areas.

I still have a problem with the fact that, while the Minister is minimising the extent of mandatory sentences in this Bill, he is not carrying forward the same type of caveat as in amendment No. 64 regarding the other mandatory sentences in it and the previous Criminal Justice Bill, which should be removed. We must ensure judicial discretion and tackle sentencing by allowing the House to set guidelines in a Schedule which we as legislators believe appropriate, rather than something definitive.

As I said, I welcome the Minister's moves in his amendments. There are specific points that I would like to debate, and some of my amendments are superseded by the Minister's. We once again find ourselves in the final hour of debate on a Bill which is being changed substantially. This part has been changed a good deal, and we have only 20 minutes in which to deal with it. That is a living disgrace. It was crazy for a Minister in the dying days of this Administration to introduce this Bill which proposes extensive changes to our judicial system.

It is welcome that the Minister has amended the Bill since it shows that he has listened to us, but it also shows that he was wrong in the first place. There may be other major flaws in this legislation that we will not pick up because we are trying to jump ahead and do not have the time. There is one section of this Bill that we will not reach at all — we have never reached it. It is a great pity that legislation of this breadth should pass without our having done so.

One further issue occurs to me regarding these amendments. Buried in the middle of amendment No. 50 in the name of the Minister is a definition of remission from sentence. It states:

"remission from the sentence" means, in relation to the sentence imposed on a person, the remission which he or she may earn from that sentence under the rules or practice whereby prisoners generally may earn remission of sentence by industry and good conduct.

Along with my colleagues in the Fine Gael Party, in particular our leader, Deputy Kenny, I previously raised the one quarter automatic remission of sentences. My recollection is that the Tánaiste's reaction to that approach in the past has been to deride any such suggestion on the basis that to change the automatic remission system would virtually bring the whole prison system down around our ears. The definition which the Minister has proposed to include in the Bill appears to run exactly according to the lines outlined by Fine Gael. Does this signal an end to automatic remission and is it an acceptance of the Fine Gael position? Does it involve an acceptance in statute that a remission in sentence would mean what is stated in the amendment, that "the remission which he or she may earn from that sentence under the rules of practice whereby prisoners generally may earn remission of sentence by industry and good conduct."? Will the Tánaiste clarify the position?

It sounds Victorian to me.

It is a good Victorian approach.

This appears to accord with the approach I and others in my party have been advocating. Is this an indication of a further conversion of the Tánaiste?

The answer to that is "No".

It looks suspiciously like it.

This is a replication of the existing basis of remission. We have a practice in this country——

Why is the Tánaiste including it here?

The Deputy should allow me to answer. We have a practice in this country that one gets a quarter of one's sentence off. In the United Kingdom, it is one third off.

Which one earns.

Every judge in the United Kingdom knows that one will get a third off when a sentence is imposed. When a judge in Ireland gives a ten year sentence, he or she knows a prisoner will be allowed out after seven and a half years, unless the prisoner does something in the course of his or her imprisonment which is of such a serious nature to allow a substantial deprivation of his or her liberty for a fraction or the entirety of that extra quarter.

Does that ever happen?

I have not derided what was suggested by Deputy Kenny in this regard. What I am saying is that the system would collapse if one had to earn one's quarter, in the sense that if one had a non-presumptive system in which one had to show one had earned one's quarter off, and that it was a matter of debate in the case of each prisoner whether he or she had done so.

That is what the Tánaiste's amendment proposes.

The Deputy should allow me to finish and I will tell him why. I have not derided his position, I am simply informing him of the reality. Under European convention, and probably under the Constitution, there would have to be a very elaborate procedure before one prisoner was dealt with radically differently to another prisoner. If it was proposed to forfeit remission, there would have to be hearings with the involvement of lawyers, etc.


There would also have to be an appeal procedure within the prison system. A colossal industry would have to be set up in order to work out whether prisoner O'Keeffe or prisoner Howlin were entitled to an extra two months or whatever, or whether the day one or the other of them threw his porridge on the floor amounted to a reason for another two weeks to go on his sentence. Practicality must enter into what we do.

Would throwing one's porridge on the floor not ensure one would never get out?

It is all very well to say prisoners will have to earn remission and they will not get it unless they satisfy the governor and all the rest of it. Prison governors and prison officers would spend their lives in court arguing about the whys and the wherefores of cases. I do not wish to elaborate at too much length, I merely say it may sound good to say that at an Ard-Fheis but it would create mayhem in the prison system and in the courts. Judges would spend long hours listening to tales of woe from one prisoner or another as to what had happened in a particular case and whether the prison officer or the accused had started the row. I can only imagine the chaos. Prisoners would certainly be entitled to legal aid and the lawyers would have a field day. We might as well hand over the entire prison system to the Judiciary to run because it would become unmanageable. It may look good on an advertisement billboard on the side of a road in rural Ireland but it could not be done because of the legal costs, the implications of managing prisons, the paperwork, the assessment of every prisoner——

Let us get back to the proposal.

——all of the independent procedures, and all of the appeal procedures. If one were to do that, one would bring down chaos on top of one.

It may be crude to prescribe a quarter of a sentence off but it works. Before anybody comes up with a theory about this, let us remember what was unfairly attributed to Garret FitzGerald, when he is reputed to have said, "That is all right in practice, but would it work in theory?". I remind the House that this is what one is likely to do here if one starts talking about changing the law. Nobody will do it. In the unlikely event that either Deputy Jim O'Keeffe or Deputy Howlin will stand where I am standing in a few months time, neither of them will do it, but they will have told people they would attempt it.

Why is the Minister adding in a provision at this late stage in the Bill to allow for prisoners to gain remission of sentence in the following manner: "...the remission which he or she may earn from that sentence under the rules of practice whereby prisoners generally may earn remission of sentence by industry and good conduct."? Why is he including a provision to provide for exactly what the Fine Gael Party has been proposing, that the prisoner would have to earn his or her remission by industry and good conduct?

Can we come back to the section?

Why is this provision being introduced at this late stage?

The current practice is that one gets a quarter of a sentence off unless one does something which is totally egregious which gives rise to a hearing that would allow one's remission to be retracted.

Does one have to earn it?

No, it is not earned.

Can we get back to the section?

Before Deputy Jim O'Keeffe gets up on his soapbox again——

I am not getting up on a soapbox.

——I say to him, Deputy Kenny told people that a prisoner would not get remission unless he or she fulfilled certain criteria and, in effect, earned his or her remission. He said he would change the law. I accept Deputy Howlin wishes to move on to other matters but I wish to clarify this matter. What has been proposed by Fine Gael is a recipe for chaos. It is a theoretical approach and a barnstorming one which goes down well at an Ard-Fheis but will never be delivered.

The Tánaiste is providing——

I am pleased to accept this amendment in that it is providing for exactly what we have been seeking——

The Deputy is not in order to speak again as he has already spoken.

——even though the Tánaiste is trying to resile from his own amendment.

Amendment agreed to.
Amendment No. 51 not moved.

Amendment No. 52 is in the name of Deputy Jim O'Keeffe. Amendments Nos. 53 to 55, inclusive, are related, therefore, amendments Nos. 52 to 55, inclusive, may be discussed together by agreement.

I move amendment No. 52:

In page 20, between lines 20 and 21, to insert the following:

"24.—In this Part—

"Freedom of Information Acts" means the Freedom of Information Acts 1997 to 2003;

"law terms" refers to the four periods (to wit Michaelmas, Hilary, Easter and Trinity) of prescribed sittings for the Superior Courts, as defined in Order 118, rule 1 of the Rules of the Superior Courts;

"the Register" means the Register of Sentences established bysection 4;

"the Service" means the body established by the Courts Service Act 1998;

"time already served" means the period of time, prior to conviction, during which the convicted person was detained in custody without bail.".

I will quickly dispose of these amendments. We should have a register of sentences. The case has been well made. It is something we will introduce in the next Government but, as of now, as the Tánaiste is not going to accept it, I will not press these amendments. We will keep them for the next Dáil.


Amendment, by leave, withdrawn.
Amendments Nos. 53 to 56, inclusive, not moved.

I move amendment No. 57:

In page 20, line 21, to delete "subsection (2)” and substitute “subsections (2) and (3)”.

Amendment agreed to.
Amendment No. 58 not moved.

I move amendment No. 59:

In page 20, lines 30 to 33, to delete all words from and including "within" in line 30 down to and including "period")," in line 33 and substitute the following:

"that is committed—

(i) during the period of 7 years from the date of conviction of the first offence and, for the purpose of determining that period, there shall be disregarded any period of imprisonment in respect of the first offence or the subsequent offence, or

(ii) during any such period of imprisonment,

(in this section the total period comprising the periods referred to insubparagraphs (i) and (ii) is referred to as “the specified period”),”.

Amendment agreed to.
Amendments Nos. 60 to 62, inclusive, not moved.

Amendment No. 63 was already discussed.

It was not actually discussed. In terms of numbering, I understood a new numbering was required when one reached CCC.

I move amendment No. 63:

In page 21, line 3, to delete "section 27(3CCC)" and substitute "section 27 (3F)".

I decided I would tidy that up. I forgot to mention it.

Amendment agreed to.

I move amendment No. 64:

In page 21, between lines 3 and 4, to insert the following:

"(3)Subsection (1) shall not apply where the court is satisfied that it would be disproportionate in all the circumstances of the case to specify as the minimum term of imprisonment to be served by the person concerned the term of imprisonment referred to in that subsection in respect of the subsequent offence.”.

Amendment agreed to.
Amendments Nos. 65 to 67, inclusive, not moved.

I move amendment No. 68:

In page 21, line 30, to delete "subsection (1)(c)” and substitute “subsections (1)(c) and (10)”.

Amendment agreed to.
Amendment No. 69 not moved.

I move amendment No. 70:

In page 21, lines 40 and 41, to delete "this section" and substitute "subsection (1)”.

Amendment agreed to.

I move amendment No. 71:

In page 21, lines 42 and 43, to delete "Schedule 2 during the previous 7 years.” and substitute the following:

"Schedule 2—

(a) during the period of 7 years from the date of conviction of the subsequent offence and, for the purpose of determining that period, there shall be disregarded any period of imprisonment in respect of the first offence or the subsequent offence, or

(b) during any such period of imprisonment.”.

Amendment agreed to.

I move amendment No. 72:

In page 23, to delete lines 6 to 13.

Amendment agreed to.

Amendment No. 73 requires recommittal. Amendment No. 1 to amendment No. 73 and amendments Nos. 74 to 81, inclusive, are technical alternatives and they are to be discussed together.

Bill recommitted in respect of amendment No. 73.

I move amendment No. 73:

In page 23, to delete lines 14 to 45, to delete page 24 and in page 25, to delete lines 1 to 42 and substitute the following:

"25.—(1) Where a person (other than a person under the age of 18 years) (in this section referred to as "the offender") is convicted on indictment of an offence specified in Schedule 2, the court shall consider whether it is appropriate to make an order or orders under this section in relation to the offender for the purpose of monitoring the offender after release from prison or for the purpose of protecting any person.

(2) The court may make an order (in this section referred to as a "monitoring order") in relation to the offender requiring the offender, as soon as practicable after the order comes into force, to notify in writing an inspector of the Garda Síochána of the district in which his or her home is located of the address of it and to notify in writing such an inspector of any change of address of his or her home or any proposed absence for a period of more than 7 days from his or her home before any such change of address or any such absence, as the case may be, occurs.

(3) A monitoring order may be made for such period, not exceeding 7 years, as the court considers appropriate.

(4) The court may make an order (in this section referred to as a "protection of persons order") in relation to the offender for the purpose of protecting the victim of the offence concerned or any other person named in the order from harassment by the offender while the order is in force.

(5) The court may provide in a protection of persons order that the offender is prohibited from engaging in any behaviour that, in the opinion of the court, would be likely to cause the victim of the offence concerned or any other person named in the order fear, distress or alarm or would be likely to amount to intimidation of any such person.

(6) A protection of persons order may be made for such period, not exceeding 7 years, as the court considers appropriate.

(7) A monitoring order or a protection of persons order in relation to the offender shall come into force on the date on which—

(a) the sentence of imprisonment imposed on him or her in respect of the offence concerned expires or, as the case may be, his or her remission from the sentence begins, or

(b) if the offender is imprisoned in respect of another offence, the date on which that sentence of imprisonment expires or, as the case may be, his or her remission from that sentence begins, whichever is the later.

(8) Where a monitoring order or a protection of persons order is made (whether or not it is in force), the court that made the order may, if it so thinks proper, on the application of the offender vary or revoke the order if it is satisfied that by reason of such matters or circumstances specified in the application that have arisen or occurred since the making of the order that it should be varied or revoked.

(9) An application under subsection (8) shall be made on notice to an inspector of the Garda Síochána of the district in which the offender ordinarily resided at the time that the order was made or, if appropriate, an inspector of the Garda Síochána of the district in which the home of the offender is located at the time of the application.

(10) A person who fails, without reasonable cause, to comply with a monitoring order or a protection of persons order shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €2,000 or imprisonment for a term not exceeding 6 months or both.

(11) Nothing in this section shall affect any other order, restriction or obligation, or any condition attaching thereto, to which the offender is subject whether made or imposed under statute or otherwise apart from this section while a monitoring order or a protection of persons order is in force.

(12) In this section "home", in relation to the offender, means his or her sole or main residence or, if he or she has no such residence, his or her most usual place of abode or, if he or she has no such abode, the place which he or she regularly visits.".

On this section, we considered the debate that took place in this House and decided to subdivide crime prevention orders into two categories, namely, monitoring orders and protection of persons orders. The monitoring order is to provide that, where somebody commits an offence under the Second Schedule, he or she is obliged thereafter, or can be required by the court, to notify the Garda of his or her whereabouts for a period not exceeding seven years after the elapse of his or her prison sentence.

The protection of persons order is to protect the victims of an offence from harassment by the offender while the order is in force. The new section states:

(5) The court may provide in a protection of persons order that the offender is prohibited from engaging in any behaviour that, in the opinion of the court, would be likely to cause the victim of the offence concerned or any other person named in the order fear, distress or alarm or would be likely to amount to intimidation of any such person.

(6) A protection of persons order may be made for such period, not exceeding 7 years, as the court considers appropriate.

On the last occasion, we had a discussion on the question of the prevention of crime orders and Members expressed the view that they were drawn too broadly. We have therefore decided to subdivide them to encompass the protection of persons and the monitoring of the whereabouts of offenders after their release. We have simplified the provision very substantially. Deputy Jim O'Keeffe will probably say this marks a serious reduction of the ambit of the original section, and it does, but I will say in its favour that we are not accusing this House of doing something that is unconstitutionally broad. In that respect, this is a welcome sharp focus for these orders. The first objective is to allow for the notification of the Garda about the whereabouts of offenders after their release. If offenders move from place to place, change address or go abroad, they will be obliged to tell the Garda. The second purpose is to protect victims of crime after offenders are released.

We considered whether it would be possible to prevent people associating with others involved in criminal activities and associating with named people. We believe, based on an examination of the issue, that this might be regarded as an impermissible constitutional power and have therefore trimmed down the provision and sharpened its focus to take account of two areas in which we believe a good effect will be achieved and so it will not be regarded as a broad blunderbuss to allow courts to make orders interfering with people's lives to a very substantial extent after release.

We are considering a totally new approach five minutes before the conclusion of our consideration of this Bill. From the way the Minister has outlined it, I am attracted by it but it is no way to make law. The Minister has partly resiled from the original crime prevention order approach in the new section 25 and is now advocating an approach that involves two different strata, involving both the monitoring orders and protection of persons orders. I am attracted by the approach and want any provision made to be constitutional but I have not had the opportunity to consider the approach in detail. It has not been debated on Second Stage or Committee Stage and we do not have time to discuss it on Report Stage. This is not a way to make effective law and it is a sure recipe for bad law.

A number of contentious issues arose when this Bill was published and I have dealt with them all except one. We have dealt with them in a way that modified them substantially. The issue of the testimony of a member of An Garda Síochána above the rank of chief superintendent arose under section 7 and we made a substantial modification. We have modified mandatory sentencing and are now totally rewriting the legislation on crime prevention orders. The Minister has introduced an entirely new section. It is substantially different from its predecessor and we have seen it for the first time in the last couple of days.

Nobody outside the House will have seen the amendment or will have been given a chance to make any representation or recommendation in respect thereof. It has not been discussed on Second Stage or Committee Stage. We have abandoned crime prevention orders, which were very broad and the essence of which I supported. They were obviously constructed such that the courts could apply any condition but they have now been replaced with two very focused orders, namely, monitoring orders and the protection of persons orders. These are quite different.

Is there provision for an appeals mechanism?

There is a variation mechanism.

It is in subsections (8) and (9).

I am reading the subsections for the first time to capture their essence. Do they apply to both orders?

Is it clear that they are civil orders?

They are orders made on foot of a criminal conviction. They pertain to the Criminal Court and are appealable to the Court of Criminal Appeal.

What is the level of proof required?

It is part of the decision the courts make. It is not a question of proof as sentencing does not require proof.

Is a sentence required? The original order did not imply a sentence; it was a crime prevention measure, or at least was presented as such, and was almost like a civil order. The two proposed orders are quite different and therefore the section has been completely rewritten. We have 30 seconds or so to deal with it.

What evidence would be given? Would it be by a garda, probation officer or victim?

This is no way to make law of this nature. We have made substantial progress, except on one issue on which we are not going to touch, that is, the detention period. Had we the facility in any of the preceding debates, we would have convinced the Minister to modify it also. I greatly regret we did not do so.

I probably have 20 seconds in which to express my total frustration with this Bill and the way in which we have tried to deal with it. In most cases, no evidence was presented for the House to discuss and no expert witnesses, as it were, explained why major changes in the judicial system were being rushed through or why they were needed immediately. We have not had the opportunity to test the changes. Whenever we got into the nitty-gritty of the Bill, the Tánaiste backed down and made amendments.

It is the 11th hour, but half of the Bill remains to be debated on Report Stage. We did not deal with all of the Bill on Committee Stage or when it was recommitted, so short was the time available. Major elements in the Bill should not be present, but we should have had the opportunity to debate the substantial changes in the judicial system, including those relating to sentencing and the terms of detention.

On a point of order, the record of the House should show that before the Easter recess, I stated that we would follow a particular course if we finished business today. However, Deputies have pursued other projects. There was plenty of time to discuss——

How ridiculous.

What projects?

Electronic tagging to the nth degree.

It is in the Bill. We had three hours in which to deal with 173 amendments and approximately 20 seconds per amendment were allowed.

As it is now10 p.m., I am required to put the following question in accordance with an order of the Dáil of this day: "That the amendments set down by the Tánaiste and Minister for Justice, Equality and Law Reform and not disposed of are hereby made to the Bill, that Fourth Stage is hereby completed and that the Bill is hereby passed."

On a point of clarity, will any amendments we have not reached be accepted?

There has been no indication.

We have not had the opportunity to discuss the matter. There are amendments left.

Would the Tánaiste care to indicate?

We have not examined approximately 20 amendments.

I would like to know what we are enacting or voting on.

I am not accepting further Opposition amendments.

That was not the question.

No surprise there.

Deputy Cuffe is here. There must be a vote.

I heard rumours.

Question put.
The Dáil divided: Tá, 62; Níl, 11.

  • Ahern, Michael.
  • Ahern, Noel.
  • Ardagh, Seán.
  • Blaney, Niall.
  • Brady, Johnny.
  • Brady, Martin.
  • Breen, James.
  • Callanan, Joe.
  • Carey, Pat.
  • Carty, John.
  • Cassidy, Donie.
  • Connolly, Paudge.
  • Coughlan, Mary.
  • Cregan, John.
  • Cullen, Martin.
  • Curran, John.
  • Davern, Noel.
  • de Valera, Síle.
  • Dennehy, John.
  • Devins, Jimmy.
  • Fahey, Frank.
  • Finneran, Michael.
  • Fleming, Seán.
  • Fox, Mildred.
  • Glennon, Jim.
  • Grealish, Noel.
  • Gregory, Tony.
  • Haughey, Seán.
  • Healy, Seamus.
  • Hoctor, Máire.
  • Jacob, Joe.
  • Keaveney, Cecilia.
  • Kelleher, Billy.
  • Kelly, Peter.
  • Killeen, Tony.
  • Kirk, Seamus.
  • Kitt, Tom.
  • Lenihan, Brian.
  • Lenihan, Conor.
  • McDowell, Michael.
  • McHugh, Paddy.
  • Martin, Micheál.
  • Moloney, John.
  • Moynihan, Michael.
  • Mulcahy, Michael.
  • Nolan, M. J.
  • Ó Cuív, Éamon.
  • Ó Fearghaíl, Seán.
  • O’Connor, Charlie.
  • O’Dea, Willie.
  • O’Donnell, Liz.
  • O’Donovan, Denis.
  • O’Malley, Fiona.
  • O’Malley, Tim.
  • Power, Peter.
  • Smith, Brendan.
  • Smith, Michael.
  • Treacy, Noel.
  • Wallace, Dan.
  • Wallace, Mary.
  • Wilkinson, Ollie.
  • Woods, Michael.


  • Boyle, Dan.
  • Cowley, Jerry.
  • Crowe, Seán.
  • Cuffe, Ciarán.
  • Gormley, John.
  • Higgins, Joe.
  • Morgan, Arthur.
  • Murphy, Catherine.
  • Ó Caoláin, Caoimhghín.
  • Ó Snodaigh, Aengus.
  • Ryan, Eamon.
Tellers: Tá, Deputies Kitt and Kelleher; Níl, Deputies Boyle and Ó Snodaigh.
Question declared carried.