I ask for silence for the speaker, please. I call Deputy Michael Healy-Rae, who has 15 minutes left.
Criminal Justice (Search Warrants) Bill 2012 [Seanad]: Second Stage (Resumed)
Question again proposed: "That the Bill be now read a Second Time."
I again thank the Technical Group for allowing me time to speak on the very important Criminal Justice (Search Warrants) Bill 2012. As previously stated, the purpose of the Bill is to address the implications of the Supreme Court judgment made in February 2012 with regard to future Garda investigations into subversive and other serious crimes. In that case, the Supreme Court found section 29 of the Offences Against the State Act 1939 to be repugnant to the Constitution.
I ask the Leas-Cheann Comhairle to intervene to call for silence.
If the Deputy could pause for a moment, I ask Members to continue their conversations outside the Chamber.
The Leas-Cheann Comhairle should ring the bell as Members cannot hear him.
There is a Deputy in possession and I ask for silence. Deputy Healy-Rae has the floor.
The 1939 Act was found to be repugnant to the Constitution because it allowed a person who was not independent of the investigation to issue a search warrant in respect of a dwelling. I made a point previously on which I will now dwell at greater length. It is a fact that situations arise in the middle of the night in which an incident occurs, gardaí may require the urgent issuing of a warrant and it is not practical, sensible or possible to make contact with a Circuit Court or District Court judge to be issued with such a warrant. This is the reason it is vital that a superintendent be able to issue such a warrant. Section 29 allowed a superintendent to issue a warrant where he or she was satisfied that evidence of or relating to the commission or intended commission of an offence scheduled under the Act of 1939, including firearms and explosives offences and a small number of other serious offences, was to be found. It did not require the superintendent to be independent of the investigation. That was the crux of the matter at the time. The person issuing the warrant could not be part of the investigation team.
The implications of the judgment have been very serious for the workings of the Garda Síochána. While the Garda Síochána can, pending the enactment of the Bill, avail of other statutory powers that allow applications for warrants to be made to the District Court, the loss of section 29 has significant implications for Garda operations. In the event that there are urgent circumstances involving the use of firearms or explosives or the other myriad activities in which criminals engage, it is not practical to apply to a District Court judge in the time available in the middle of the night.
The Bill has many implications. To be blunt, people have got off on foot of the judgment in this case and the Bill is limited to addressing future Garda investigations. There is no legislative option available to the Minister to address existing cases in which section 29 warrants may be at issue. The Oireachtas cannot retrospectively make something constitutional that the Supreme Court has declared to be repugnant to the Constitution. Whether we agree with its finding, the Supreme Court interprets the law of the land and we have no other choice but to comply with its direction.
It is vital that the Bill is enacted as soon as possible. I believe it will commence the day after it is signed by the President. The Minister should have our support on this matter. As the Garda Síochána is really up against it in dealing with the criminal elements, it is vital that we support it at every opportunity. There is highly organised criminal activity taking place. It has been pointed out to me that there are criminals travelling around the country who do not participate in any crime. They study the security procedures of banks, post offices, shops and petrol stations and sell the information to other criminals who use it to carry out their crimes. The criminal element is very organised. Those involved are using all sorts of technology available. They have found ways to combat the security procedures in place at business premises at high expense to those businesses that are already struggling to keep their doors open. They are trying to fight off these criminals who are continuously targeting them. The Garda deserves the full support of every elected politician, which is why in the past I have raised with the Minister the issue of the protection of small Garda stations. In order to allow the Garda do its job properly for the small cost involved, no Garda station should be closed. In a reply to me, the Minister once stated the average cost of keeping a rural Garda station open was somewhere between €3,500 and €5,000. If stations are closed, the same amount of money will still be spent in maintaining them because there will be no rush to buy them and they will continue to be owned by the State. They will have to be maintained in a proper fashion and not allowed to fall into disrepair; therefore, we will still spend the money on the buildings. It is common sense to keep them open to help the Garda fight the ever increasing scourge of criminal activity.
There are new crimes being committed. Houses in estates are being attacked in the middle of the night and shots are being fired. There are many forms of intimidation. It comes back to ensuring the swift passage of the Bill through the House.
There certainly should be a victims' charter to support the victims of crime who have been badly affected by criminal actions. We have seen the spectacle of wealthy career criminals somehow managing to avail of free legal aid at a time when the Government is cutting back on expenditure in all areas. I fully support the idea of persons of limited means who may have drawn the Garda Síochána on them availing of free legal aid. They must have proper representation in court, as they have little or no means and may have abused drugs or alcohol. However, a wealthy career criminal with assets such as property held by other family members should never be allowed to avail of such aid. It is wrong and does not make sense, at a time when the Government is trying to save money, to assist the people concerned in fighting the efforts of the Garda to convict them for engaging in illegal activities.
Nobody has a monopoly in doing the right thing at all times. Unfortunately, in recent times, as has been highlighted by Deputy Mattie McGrath, people have got it wrong in taking the word of the banks when raiding contractors. I am referring to the famous case in Thurles, where gardaí ill advisedly took the word of the banks and carried out raids in the middle of the night on honest, respectable agricultural and plant hire contractors to repossess machinery which subsequently had to be returned and an apology had to be given by the banks. While I support the Garda Síochána in every way possible, we cannot allow a situation where it takes the word of the banks and target private households. It has to tread with extreme caution in dealing with such cases.
I compliment the Garda Síochána overall, whether it is in rural areas or urban centres such as Dublin. Even in recent years, the situation has become much worse for members of the Garda Síochána. They are trying to survive at a time when cuts are eating into their work schedule and when, at every opportunity, they are being cut back on the overtime which they need to carry out their work properly. Superintendents and chief superintendents have the increasingly impossible task of trying to ensure the streets and the countryside are policed properly while, at the same time, they are working within constrained budgets.
We are very fortunate in Ireland that we have excellent people working in the force. I would like to see a situation where the Minister would, in the not too distant future hopefully, begin recruiting new members of the force. There is a certain threshold we cannot go below because if we do we will allow a situation where the criminals of this country will win the war, which we do not want. We want to ensure we have a safe State that is properly policed. While I appreciate the restrictions on the Minister, I look forward to a situation where we can achieve this, perhaps in a limited way at the beginning.
Many people have retired from the force, including those who took early retirement in the recent past, as was their right, but this has left a void in the force, the strength of which is decreasing all the time. I would like to see recruitment begin, and this would give gainful employment to young people who would dearly love to be members of the Garda Síochána. I support the Minister in the speedy passage of the Bill and compliment all those who have worked hard and diligently on it.
I thank all Members of the House who have spoken on this legislation. I thank them for their support for the Bill, for the very constructive comments they have made and for the support they have expressed for the work done by the Garda Síochána. That work is of huge importance.
The reality is there are fewer resources overall available to this State, right across the board and within every Department. My Department has over €100 million less in 2012 than in the previous year and, based on the multi-annual budgeting schemes that now exist, we will have €63 million less in 2013, while we get our finances in order.
Gardaí are doing an extraordinary and successful job. They are applying their resources wisely and are engaging in smart policing. Under the direction of Garda Commissioner Martin Callinan, they have had some extraordinary successes. Deputies made reference to the drug gangs and one of the largest drug hauls in the history of the State occurred within the past ten days, although I do not want to say too much about that because of prosecutions that will take place. If we look at the most recent crime figures from the end of March, there are reductions under every category except the category of burglary, where there has been an increase. As a result, Operation Fiacla is in place, having been directed by the Garda Commissioner with a view to targeting those engaged in burglaries. Deputy Healy-Rae was right to raise the issue of the gangs which are travelling the country, using the excellent road network to target communities well away from where they live, with a view to carrying out criminal activity and then disappearing over the horizon. The Garda Síochána is targeting individuals engaged in this sort of activity and I hope and believe the operation that is taking place in that context will be successful.
It is of huge importance that Members of this House support the Garda but it is also important Members are realistic. I cannot invent money that does not exist and I cannot provide resources that do not exist. We currently have approximately 13,600 members of the Garda force, a substantially greater number than at any time during the Troubles. In addition, we have 930 members in the Garda Reserve, with in excess of 200 currently being trained, so we will have well over 1,000 operational in the Garda Reserve in the not too distant future. They are playing an important role and, as we noted on justice questions only a short time ago, they will now be playing an expanded role in assisting the permanent members of the Garda Síochána.
The Bill is important. We recognised the need to fill the gap in the law created by the Supreme Court judgment. I welcome the fact and thank Deputies for acknowledging that this Bill puts in place a robust mechanism to ensure that when warrants are issued, they can be issued in a manner that is constitutionally sound by district judges. It is only in circumstances where a district judge is not available and there is a question of urgency that a member of the Garda Síochána not engaged in the particular investigation of relevance, at a level of superintendent or above, who is essentially independent of the investigation, can issue a warrant for appropriate searches to take place. That should and, we believe, does fulfil the constitutional requirements articulated by the Supreme Court in the judgment which found section 29 of the Offences Against the State Act 1939 to be unconstitutional.
I hope Deputies will forgive me if I do not refer by name to each Member of the House who spoke because a number of Deputies made similar points which were supportive of the legislation. Nonetheless, I should mention a few matters. Deputy Calleary, in supporting the Bill, made mention of the DPP reviewing cases that may be pending and may be affected by the Supreme Court judgment. The Deputy also made reference to the need to ensure that victims of a crime are advised of the outcome of a review if it could affect the taking of a prosecution or, indeed, if some conviction is set aside. I believe it is important that victims are informed of events that directly relate to cases in which they have given evidence and where individuals were convicted, if a conviction is set aside. I will ensure that the need to make sure that occurs in all relevant cases is communicated. The Garda Síochána has done that and, where there has been a difficulty arising out of this judgment, it is important it continues to do that.
Deputy Calleary also raised an issue as to how many warrants were issued that could be affected by this judgment. I cannot give an answer to that. All I can say is that cases which are pending and may be affected by it are being reviewed, as I understand it. It is the DPP who would review those cases and her office would do so in the context of it engaging with the Garda Síochána where there are issues that may need to be addressed or where there are concerns.
Deputy Calleary was right when he said we must strike a balance between the rights of victims and the rights of suspects, and that we should not tie the hands of those investigating crime so as to create unnecessary difficulties for them. That is a very reasonable statement. We have to ensure we operate within the constitutional parameters prescribed by the Constitution and by the courts, ensure there are fair trials and ensure that people are treated correctly. However, it is of course important that gardaí have the necessary flexibility to investigate offences and, where necessary, can access warrants. This legislation allows them to do that.
I thank Deputy Jonathan O'Brien for his support for the legislation and for facilitating it going through. Although he did so in a different way to Deputy Calleary, Deputy O'Brien raised a similar issue which concerned the knock-on effects of the Supreme Court judgment. It is correct to say they are not clear at this stage, because individual cases have to be examined based on their background facts, what occurred in investigations and where prosecutions have not yet taken place. It is not clear how many cases may come back into the courts as a consequence of the decision that has been delivered. There are certainly some in the area of having been determined but with appeals pending to which the judgment may be relevant. We have already seen that happen in two cases. The fact a conviction may be set aside does not mean it is necessarily the end of the matter. We have also seen as a consequence of a decision of the Court of Criminal Appeal where a decision was set aside that there will be a retrial. It is a matter for the Garda and the Director of Public Prosecutions as to the robustness of evidence to present in cases where there is a retrial. I must be careful to say nothing about this for fear of in any way prejudicing matters.
Deputy O'Brien referred to the Morris tribunal report and acknowledged there was nothing in it which indicated this particular section was unconstitutional. Mr. Justice Morris raised issues about the issuing of warrants but not their constitutionality. It would be very easy for me to take a pot-shot at my predecessor and claim he should have done something about it. Having examined what occurred in the background, everything possible was done in consultations with my Department and the former Attorney General. There was no indication that there was a constitutional issue or concern. The Law Reform Commission produced a report addressing this area but did not raise any issue about the constitutionality of the provision. It assumed the section that had been in the legislation since 1939 did not give rise to an issue. There were technical issues as to what amendments might be made to different legislation but there was no suggestion of unconstitutionality. As law develops and principles evolve, on occasions where law has applied for decades and appeared uncontroversial, we suddenly get a judgment from the Supreme Court which changes everything. The Supreme Court is entitled to do that. No one who examined this issue on an official level preceding the recent judgment considered this particular section could be found to be unconstitutional.
As Deputy O'Brien rightly said, the legislation brings clarity to the law. It is also a good reform of the law. It is a desirable reform in the context of giving an assurance that when it comes to issuing warrants which can result in someone's home being searched, the person who determines the warrant is issued is absolutely independent of an investigation. It is a good principle.
Deputy Pringle raised the issue of why a member of the Garda force of the rank of superintendent, even in exceptional cases, should be granting warrants. He suggested there should be instead some sort of list of District Court judges to do this. We already have one. This legislation does not confine the issuing of a warrant to a District Court judge whose remit is within a particular district. It essentially provides that the warrant can be issued by a judge of the District Court. The list is already in place and contains all members of the District Court. It does not need to be any more complex than that.
Deputy Finian McGrath, as well as several other Deputies, raised the threat posed by drugs gangs. The Garda Síochána has targeted, to a successful degree, drugs gangs. The tragedy within this city and other parts of the country is that it seems when one group, which compromises the leadership and main body of a drug gang, is convicted and sent to prison, there is always another group in the background which wants to inherit its mantle and continue its activities. The Garda will continue to target the drug gangs as is required.
Deputy Mattie McGrath, who was generally supportive of the Bill, made one point which it is important I correct. He raised the question as to whether the superintendent who was engaged in the conduct of the investigation and authorised the warrant which was ultimately set aside by the Supreme Court understood the law and why he did not get someone else to sign the warrant. That is the very issue with which we are dealing. The superintendent in question understood the law. Section 29 of the Offences Against the State Act allowed that the superintendent to sign the warrant. There was no criticism of any description of the superintendent. It is most unfair to have suggested in any way that he did not understand the law. Effectively, he made a considered judgment based on an investigation in which he was engaged and applied the law under section 29 of the 1939 Act as he understood it and as it has expressly applied for several decades. He behaved with absolute and total propriety and knowledge. It would be unfair that there would remain on the record of this House any criticism of him for the manner in which he dealt with matters.
Several Deputies raised the issue of a victims' charter. We have one but it is a non-statutory provision. There is a commitment in the programme for Government to enact legislation to protect victims' rights. I do not believe we will come to this legislation this year because of the legislative burden weighing on the shoulders of officials in my Department and the Attorney General's office. Not coming to it this year is wise because of similar legislation being developed at European level which will provide a European-wide charter of victims' rights. I am very much involved with my EU ministerial colleagues in engaging in this process. If we are going to have a European victims' charter, it is important our equivalent domestic legislation is compatible with it. The European provisions will be the minimum ones with which we must comply. It may well be that additional protections will be put in place. We want to provide domestic legislation for victims of crime.
Several Deputies raised the issue of gardaí being available on occasions when they are required. The new Garda roster system came into place on 29 April which now allows for them to be on the streets at a time when they are required. Now, more gardaí can be available at times when there may be pressures such as on Friday and Saturday nights. These are times when there are many young people out on our streets, most of them just trying to enjoy themselves. Unfortunately, there are some individuals who may have drunk excessively, may also have taken drugs, who are not rationally focusing and pose a threat in their delusional state to others who are going about their business. This is a difficult and complicated issue which is not confined to a matter of policing. An important issue in this area is the manner in which alcohol is sold to young people and the extent to which many of them consume it outside of public houses. There are still too many promotions by public houses to encourage young people to down large amounts of alcohol at very low prices with the result they get inebriated. If there are drugs involved, then there can be real difficulties. This requires the implementation of better controls by those who run public houses. The issue of illegal drugs, which is extremely complicated, cannot simply be solved on a law and order basis. The Garda plays an extremely important role in trying to ensure that people on our streets are protected.
I wish to acknowledge the members of my party who contributed to the debate and who expressed support for the Bill. I thank them for that. Deputy Durkan stated that people should not walk away from court cases because of technicalities. A technicality relates to whether the law has been properly applied. We have a written Constitution which recognises fundamental rights. It is important that those who engage in criminality are brought before the courts. Where it is proved beyond a reasonable doubt that these individuals are guilty, they are convicted and appropriate sentences are imposed. Where an illegality has occurred and where matters have not been dealt with properly under due process of law, we cannot simply dismiss such eventualities as technicalities and state that we will proceed to convict someone in any event. This is why we operate under the rule of law. It is very important that we should continue to do so.
I agree with a point Deputy Durkan made which has also been made in other places. Where people are first-time offenders and where the offences they have committed are not of a serious nature - this is a distinction that is very important to make - penalties other than the imposition of prison sentences can be beneficial in trying to ensure that they do not become recidivists. There are other options in this regard such as pilot restorative justice programmes and diversion programmes for young people. There is now legislation which applies across the board in all criminal courts - it is particularly relevant to the District Court - which requires that judges should first consider imposing community service rather than handing down sentences of imprisonment in circumstances in which there is a possibility of their imposing sentences of one year or less on individuals. Alternative means of dealing with individuals who are first-time offenders and whose offences are not serious are being used - beneficially, I hope. Where someone commits a first-time offence which is serious, which involves a vicious assault on another individual who, as a result, loses a limb or an eye, which is sexual in nature or which takes the form of an aggravated burglary involving the assault of a person, an appropriate sentence must be applied in respect of the crime. In the context of first offences, we cannot provide for a disposal or a mechanism to deal with an individual that is grossly disproportionate to the level of harm inflicted. There must be an element of balance and proportion in respect of all of these matters.
Another Deputy referred to moneylending, which is subject to a licensing regime administered by the Central Bank. This matter falls within the remit of my colleague, the Minister for Finance. People who engage in moneylending without possessing the necessary licences are, of course, committing an offence under the relevant legislation. Where such offences occur, complaints can be made to the Garda, which has the power to bring prosecutions against unlicensed operators. Where people have information relating to the operations of unlicensed moneylenders, they should give it to the Garda, which will take whatever action is necessary in order to enforce the law.
I hope I have dealt substantially with the many issues raised during the debate. I thank Deputies for their support for this measure. The Bill was published on 6 June last and was the subject of a rapid passage through the Seanad. It is in the public interest that it should be enacted prior to the summer recess. The legislation will be of assistance to An Garda Síochána in future investigations in which it engages. As I and other speakers noted, however, it cannot retrospectively, in any shape or form, affect the Supreme Court decision with regard to cases that are already before the courts or in respect of which decisions have been made. This is a short but important Bill. I again thank Deputies for their supportive and constructive contributions to the debate on it.
Question put and agreed to.