No doubt we will get the letter some time in the future when this debate has long since been consigned to history and the guillotine exercised on parliamentary debate. The Constitution enshrines the right to trial by jury and if the Minister intends this Bill to survive a constitutional challenge, or a challenge in a supranational court, he must be able to produce evidence that non-jury trials are warranted by facts in previous gangland trials.
While the provision for use of the Special Criminal Court under the Offences Against the State Act 1939 withstood constitutional challenge in the case of Kavanaghv. Governor of Mountjoy Prison and others in 2002, it must be noted that the United Nations Human Rights found that the manner in which the State had handled that matter was in violation of the United Nations International Covenant on Civil and Political Rights. The UN committee found that the State had failed to demonstrate that the decision to try Kavanagh before the Special Criminal Court was “based on reasonable and objective grounds” and, therefore, the accused’s right to “equality before the law and to the equal protection of the law has been violated”. It brings no honour to Ireland to be found in breach of a UN covenant to which we are a party. Removing the jury from the equation must be a matter of last resort and we must ensure that alternatives have been explored and dismissed for valid reasons before taking this step.
Yesterday's edition ofThe Irish Times noted that there has been no evidence that jurors are reluctant to convict gang members in this jurisdiction and, moreover, that the new Criminal Court complex which is due to open shortly has special facilities for jurors to ensure that they cannot be “got at” during the course of a trial.
The Bill contains a provision mandating annual Oireachtas ratification of the Special Criminal Court under this proposed legislation. As we are all well aware from the manner in which similar provisions in the Offences Against the State (Amendment) Act are dealt with each year, this provides for nothing more than a rubber stamp. For the two years that I have been Fine Gael's justice spokesperson, renewal of the relevant sections of the Offences Against the State (Amendment) Act have been rushed through the Dáil at the last minute. The Government Chief Whip, the Minister of State, Deputy Pat Carey, advised that it needed to be renewed immediately or the provision would lapse, as I was informed by my party Whip, Deputy Kehoe. This year, the Government gave the House 40 minutes to debate the renewal of sections 2 to 4, inclusive, 6 to 12, inclusive, 14 and 17 of the Offences Against the State (Amendment) Act 1998. Such a careless and flippant approach makes a mockery of what is supposed to be a constitutional safeguard.
More generally speaking, reform is long overdue in respect of how our juries are constituted. At present, a preposterous range of professionals are excluded from jury duty,ab initio, and I would like the Minister, Deputy Dermot Ahern, to take on the issue of jury reform head on, rather than skirt around it.
Similarly, new measures in respect of detention procedures in Part 4 of the Bill are likely to give rise to constitutional challenges. It is a significant departure to allow a garda of any rank in private and without legal representation to give evidence to a judge in order to secure an extension of the detention period. While I am not calling into question the professionalism of the Garda Síochána, the custom heretofore of limiting the right to a senior officer reflected the importance of the experience and expertise that a garda of this rank has accumulated. In addition, the provision reflected the gravity of the measure which precluded the defendant, his or her legal representative or the prosecutor from being present while the garda was giving evidence to the judge. I would like the Minister to confirm to the House that he is confident that altering thestatus quo in respect of from whom judges may hear relevant evidence is constitutionally sound. I would like to hear the rationale for making this change, which is very significant and far-reaching, whereby a judge and a junior garda can make decisions without reference to any other person and in private.
In respect of the Bill's provisions on post-release orders, concerns have been raised in respect of the vague nature of restrictions or conditions which can be imposed on a person after release. The Minister referred to the post-release orders being similar to those that have been included in the sexual offences legislation. However, they are not working and are not being deployed. We have not seen the electronic tagging that he announced on numerous occasions since he became Minister for Justice, Equality and Law Reform. I know of no sexual offender whose post-release order involved electronic tagging and such post-release orders have been confined to signing the register, which in some recent cases has been found to be flawed in itself. The record in that regard is not great.
I wish to hear on Committee Stage the Minister's views on the constitutionality of these measures. Moreover, it is not sufficient to state that one is advised by the Attorney General that everything is all right or that the Attorney General has informed one that matters are constitutionally sound. Members must debate the rationale and the precedent for this matter and must debate what is or is not best practice or is sustainable in this regard.
In respect of inferences to be drawn from the right to silence, which already exists on the Statute Book and again is contained in this Bill, this is a measure that Fine Gael believes is necessary in certain types of criminal cases. However, once again there is no point in bringing in a measure that may subsequently fall foul of the Supreme Court on constitutional grounds or of the European Court of Human Rights. Therefore, I suggest the Minister should introduce a provision to ensure that accused persons have access to a legal adviser in order that they are fully aware that invoking their right to silence may have adverse consequences at their trial.
While the role of the Oireachtas is to legislate, a much greater and further reaching responsibility lies on the Government. Ramming legislation through the Oireachtas will be the easy part for the Minister, Deputy Dermot Ahern, as he has both the numbers to so do and the power to use the guillotine mechanism. Flaws in our parliamentary system give him this luxury. It is easy to amend the criminal laws but the hard part lies in the governance of the criminal justice system.
Ireland will go down an undesirable road if we adopt the approach that it is cheaper to introduce harsher laws than to provide the resources necessary to allow existing laws to be used successfully against criminals for the protection of the greater good in society. No amount of new laws can be a substitute for a well-resourced Office of the Director of Public Prosecutions, a well-resourced Garda Síochána with access to top level technology, a modern, specialist approach to evidence that would be facilitated by a DNA database or for following the recommendations of Professor Kopp in respect of the State Laboratory.
After 11 years, digital radio for the Garda Síochána on a nationwide level still is lacking. Less than half the Garda stations are equipped with e-mail and the Garda PULSE system remains cumbersome and difficult. The State Laboratory has half the staff that an expert report recommended it needed to carry out its work in an efficient and effective manner. The Director of Public Prosecutions has seen his budget cut in recent months by the Government, which led him to make an unprecedented statement that he will find it difficult to run his office in the manner in which he is required by law. We still lack a structured system for identity parades with two-way glass to protect witnesses. Although the Minister talks about jury protection, he should tell Members about witness protection. Rather than taking a practical step in respect of two-way glass, the Minister instead tells one that the witness protection programme is a failure for societal reasons and that there is nothing to be done. This is hardly a visionary or practical approach.
I will return to the points I make frequently in respect of gangland crime. First, to defeat the gangsters, one must cut off their financial oxygen supply. While it is true that the Criminal Assets Bureau, CAB, does admirable work, it also is true that by the time the CAB intervenes, such criminals already have peddled a considerable amount of drugs and acquired considerable wealth from their criminal activity and a large amount of damage already has been done. Where is the commitment to putting resources into curtailing criminal activity at an earlier stage? What is the twisted rationale behind having a single X-ray container scanner to cover all of our ports? It is well known that this scanner moves around and that its movements are monitored by criminals, who simply use a port that is scanner-free when importing drugs. It is negligence of a scandalous degree on the Government's part to allow this situation to continue.
Similarly, an inquiry into the level of customs checks at smaller and private airports reveals that checks are rare or simply non-existent and to state that it is not cost-effective to have a customs presence is to be penny wise and pound foolish. How much do the ravages of drugs cost this State on an annual basis? Has a comparative analysis been done in respect of the high price we pay due to the easy availability of drugs versus the cost of stemming the tide of drugs pouring into the State daily? A single patrol boat to man the coastline is painfully inadequate. If one speaks to someone from a coastal area, such as my colleague, Deputy P. J. Sheehan, he or she will tell one that it is widely known that drugs frequently come in along the coast at night. While the establishment of the EU Maritime Analysis and Operation Centre-Narcotics constitutes a huge step forward, we cannot rely on the European Union to solve our problems in this regard and the absence of such an approach is a dereliction of duty by the Government.
Second, I frequently have made the case for prison reform. Our strange prison system is one in which we lock people up for failing to pay a television licence fee but allow subversive prisoners to march while in prison, to parade in a military style and to intimidate prison officers. We allow gangsters to conduct their business by mobile telephone and allow drug addicts to avail of packages lobbed over the walls of Mountjoy Prison on a regular basis. We pack in prisoners tightly in Dickensian conditions and then feign surprise when they come out and reoffend. Although little is done to assist the illiterate and the mentally ill who make up a sizable proportion of the prison population, prisoners who have been incarcerated for the gravest of offences appear to enjoy a better standard of living than do other inmates. Reform at this level also is required if we are to take on gangland crime at a root and branch level.
Ireland needs a Minister who is willing to approach criminal justice in a broad ranging and cohesive fashion. We need a recognition that reform is needed across the board from juries to prisons. We need a Government that recognises that huge problems like organised crime cannot be solved in isolation by one Department but require co-ordination across Departments. For example, it is essential that the Department of Finance co-operates on the matter of customs resources.
However, the Minister, Deputy Dermot Ahern, likes the easy route. He prefers to ban legally held firearms than to tackle illegal firearms. He prefers to get rid of jury trials than to explore what other options are available. He prefers to ram through harsh measures without time for debate, despite the real risk that such provisions will fall foul of the courts on constitutional grounds or because of the European Convention on Human Rights. He prefers to give the Garda greater powers rather than providing it with greater resources or dealing with manpower and technology issues. This is not the path to dealing successfully with organised gangland crime.
Gangland crime is entrenched in our society and must be addressed with a multilayered, multifaceted, thoughtful and evidence-based approach that reflects best practice and not in a rushed manner that arguably is somewhat draconian. While the Minister sounds tough, his predecessor also sounded tough in 2006. No Minister was more tough sounding than the former Minister for Justice, Equality and Law Reform, Michael McDowell, before the election in 2007 and this measure is a repetition of that stance. Fine Gael broadly supports this Bill because it is anxious to play its part to bring an end to the spiral of gangland killing in this State. However, it is my firm belief that legislation is no substitute for resources at the coalface and I hope the Minister and his colleagues have the common sense to agree with this view.