Ceisteanna ar Sonraíodh Uain Dóibh - Priority Questions

Garda Youth Diversion Projects

Jim O'Callaghan


30. Deputy Jim O'Callaghan asked the Minister for Justice and Equality the number of serious offences which were not addressed as a result of administrative error or as a result of Garda negligence within Garda youth diversion projects; the actions that will be taken with regard to the cases; the additional oversight of the projects required; and if he will make a statement on the matter. [4427/19]

The Minister of State will be aware that An Garda Síochána made an announcement a couple of weeks ago about a review it had carried out on the Garda youth diversion programme. The announcement indicated that there were a number of significant concerns about the programme. It showed that many children who were arrested or apprehended were not referred to the youth diversion programme. What does the Government intend to do about this? It has serious consequences for the whole youth diversion programme.

I share the Deputy’s concerns about the very serious issues outlined in the Garda Commissioner’s interim report on youth crime cases from 2010 to 2017. In that period, almost 160,000 youth crime incidents were referred for consideration under the Garda diversion programme. Roughly one third of these incidents were deemed unsuitable for inclusion in the juvenile diversion system, and it has emerged that almost 8,000 of these crimes were not properly pursued. This is a completely unacceptable situation that must be thoroughly addressed in the interest of victims and the proper administration of justice, and for the future welfare of the children who committed the crimes.

In addition to the apology which was appropriately issued by the Garda Commissioner, gardaí have commenced a process to contact victims and have also provided a helpline for anyone who might be affected by the failure to process these cases. Details of the helpline are available on the Garda website. I am anxious that all relevant information must be made available to the victims, including the steps being taken to deal with the failures that have occurred.

A number of fundamental issues have been identified by the Garda examination, including inadequate ICT and supervision, a lack of training, and alleged failings by individual gardaí.

Concerns about similar gaps surfaced previously on different issues and, as the Deputy is aware, last month the Government published the implementation plan which will give effect to the report of the Commission on the Future of Policing in Ireland. This plan is aimed at addressing, in a systematic way, all the failings identified.

The Government is committed to the implementation of the commission’s report and a programme office has been established in the Department of An Taoiseach to oversee and report on progress.

In addition, the Policing Authority will continue to follow up with an ongoing examination of these specific youth justice-related matters to ensure the effectiveness of the remedial actions which the Commissioner has set in train.

As I mentioned, the issue related to Garda oversight of cases deemed too serious for diversion, and not to the Garda diversion programme or to the community-based Garda youth diversion projects which support the diversion programme. I am assured that no negative implications have been identified for these projects arising from this issue. I can assure the Deputy that I will keep in very close touch with the Commissioner and the Policing Authority to monitor progress.

Additional information not given on the floor of the House

In relation to the individual cases, the majority took place in the period from 2010-2015.  Therefore, unfortunately, most of them will be statute barred. However, senior Garda managers are looking at the more recent individual cases to determine whether any further action can be taken. The Commissioner has been very clear that alleged failings by individual gardaí will be fully investigated at divisional level. The Deputy will appreciate that this is a matter for the Commissioner and his management team and any process of that kind has to be allowed to take its course and should not be pre-judged.

The Minister of State will agree that dealing with criminal activity by children is a serious issue. Unless children can be deterred and diverted from criminal activity by the time they reach 18 years of age, there is a strong likelihood they will continue on a criminal path. The Children Act was introduced in 2001 and it established the juvenile diversion programme, which has worked very effectively. It seeks to provide community-based initiatives for children caught up in the criminal justice system, provided they accept and admit their responsibility for crimes they have committed. It very much depends on An Garda Síochána liaising with juvenile liaison officers. What is disturbing about this is that during the period from July 2010 to July 2017 approximately 7,900 offences, involving 3,500 children, were not dealt with to conclusion. That Minister of State stated that is a matter of concern.

While I understand the Garda Síochána and Policing Authority are looking at this, what does the Government propose to do about it?

The Garda authorities have taken a number of technical and organisational steps to prevent the recurrence of the failures outlined in the Garda review of cases from 2010 to 2017. I am advised that these measures have led to substantial improvements in case management. More work is under way within An Garda Síochána to verify the full details of the treatment of youth crime during that time, including an external validation process which commenced in mid-January. In addition, the Commissioner has established a national bureau for child diversion to improve further the management of this whole area. As Minister of State with responsibility for youth justice, I have initiated work to develop a new youth justice strategy. I took this initiative on the expiry of the youth justice action plan 2014 to 2018 and will chair the expert steering group guiding the work. The first meeting of the steering group will take place on 6 February. The development of the strategy will provide an opportunity for broad consultation to support enhanced approaches to youth justice based on co-operation across State agencies and community partners. Not only are we following this up, but the Police Authority will continue to engage in rigorous examination of these matters and the actions outlined by the Commissioner to address the systemic cultural and disciplinary issues within An Garda Síochána. We are not only looking backwards but forwards also. I agree wholeheartedly with the Deputy that this is a very serious issue which should not have occurred. We want to ensure these young people are given the support they need and that the victims are assisted also.

Youth justice is an extremely important matter and I am pleased to hear the Minister of State say he has responsibility for it. Sometimes, it falls between the two stools of the Departments of Children and Youth Affairs and Justice and Equality, respectively. We must recognise that it was not just the children who were not referred to the youth diversion programme who were failed, it was also the victims of the crimes. Some 7,900 crimes were committed and each victim who made a complaint is entitled to have it investigated thoroughly and dealt with, irrespective of whether a child committed the offence. Similarly, many other children went through the youth diversion programme and took the process seriously in an effort to get off the path of criminality. If they see that others who do not bother engaging with the programme simply get away with it and are ignored by the State, not having to face any consequences for the crimes, it will undermine the whole scheme. I urge the Minister of State, Deputy Stanton, to take responsibility for it and to be seen as the person within Government who is driving this crucial issue to ensure children are diverted from crime at an early stage.

I thank the Deputy for his support and sincerity on these matters, which I welcome. With respect to victims, and in addition to the sincere apology issued by the Commissioner, gardaí have commenced a process to contact victims and provided a helpline for anyone affected by the failure to process these cases. Clearly, all relevant information must be made available to victims, including the steps being taken to deal with the failures which have occurred. It is very concerning that there were repeated failures in the cases of some prolific young offenders. Justice was not done for the victims or for the young offenders whose behaviour should have been challenged repeatedly. The issues raised in the report highlight the fact that many young offenders are themselves vulnerable individuals and underline the need to address offending in a strategic multi-agency manner as recommended by the Commission on the Future of Policing in Ireland. I take this opportunity to commend the Commissioner on the work he and his team have done to date to deal with this very serious matter. I commend the Policing Authority also for the professional way it continues to handle the matter.

Garda Youth Diversion Projects

Donnchadh Ó Laoghaire


31. Deputy Donnchadh Ó Laoghaire asked the Minister for Justice and Equality his views on the latest report on the Garda youth diversion programme, specifically the cases deemed not suitable for the programme that were not progressed by An Garda Síochána; his further views on similar difficulties existing in the adult justice system; and if he will make a statement on the matter. [4291/19]

The Minister of State has discussed already and will agree that it is unacceptable that 7,894 crimes by more than 3,500 children and young people were not progressed. This failed the children and the victims. As to the latter, 75% of these cases involved four main categories, namely public order, theft, traffic offences and criminal damage. However, there were 55 offences covering matters of rape, sexual assault and one case of child neglect. It is appalling to think that someone came forward to gardaí and made a complaint in this regard but, as is now clear, no action was take to prosecute properly the child responsible. The Minister of State will agree that this is serious and requires action to address the systems failure and disciplinary matters.

I agree with the Deputy on this matter and thank him for raising it. It is very serious indeed. These issues arise from the Garda Commissioner's interim report on the handling of youth crime cases. As such, it was gardaí themselves who discovered the issues and sought to address them. The issues will be addressed through the implementation of the recommendations contained in the report of the Commission on the Future of Policing in Ireland. I emphasise the Government's commitment to implementing the report, which provides a strategic framework to address the full range of systemic, organisational and cultural deficits within An Garda Síochána. A high-level implementation plan was published in December and endorsed by every Minister and Government Department. It is an ambitious but realistic plan and the timescale is in line with the commission's own recommendations. It is being overseen by an independently-chaired programme office located in the Department of the Taoiseach in recognition of the multiplicity of agencies and Departments charged with implementing it.

I emphasise again that this issue should not cast any shadow over the value of the Garda youth diversion programme itself. I am sure the Deputies present will agree with me on that. These issues relate to cases that were deemed unsuitable for the Garda youth diversion programme. As such, no negative implications have been identified for the diversion programme itself, which is very beneficial and has helped generations of young people take a path away from criminal activity. Neither is it regarded as having implications for the community projects funded by my Department to support the diversion programme. We must distinguish between failures of youth crime case-management and the very valuable work of the diversion programme.

I am aware that members of the Policing Authority have asked if similar issues could arise in relation to prosecutions and case management for adult offending. The Commissioner has acknowledged that it would be necessary to examine that question further. As such, there are further questions to be asked here. I am concerned to ensure we have assurances about the quality of Garda prosecution procedures and systems in relation to all crimes, not just youth crime. The Policing Authority has indicated that it will assess whether there are any wider implications for Garda crime management and prosecution procedures which need to be addressed. The authority is responsible for independent oversight of policing and is clearly the appropriate body to examine these matters in the first instance. My Department has already been in touch with the authority and will maintain close contact to monitor developments to ensure we get a clearer overall picture of criminal case management and prosecution.

I agree, of course, that the Garda youth diversion project is a successful and valuable scheme and I stated as much in the Chamber last week. I am aware from many excellent projects in my own constituency, including in Douglas and Togher, the latter of which won a national prize in the Tidy Towns competition a year or two ago, that excellent work is taking place. Nevertheless, the scale of what happened here is very significant. As I set out, 3,500 children and young people did not get case progression. If my understanding of the process is correct, these are people who had accepted responsibility in order to have been referred but were then deemed unsuitable, yet it is a very large category.

I am interested in what the Minister of State said about the possibility of wider issues involving adult criminality. There has been speculation on that in the media and the Policing Authority has given an indication in that regard. I am concerned by that. The level of detail is unclear but there is obviously something there or the chair of the Policing Authority would not say it. However, there is no scheme such as youth diversion involved and there is no form of reference of a similar nature. As such, what is the nature of the issues that appear to exist? What indication can the Minister of State provide to the House on any wider issues of crime prevention or possible failures to progress adult prosecutions?

I thank the Deputy for his questions and comments on the youth diversion programme and its projects. While it is correct to ask these questions, we must bear in mind that these issues related to juveniles who were under 18 and not adults. However, the question has been asked on adults and the Commissioner has indicated that he will look into it. As the Deputy said, it is very concerning that there were repeated failures in the case of some prolific young offenders. Justice was not done for the victims, nor was it done for the young offenders whose behaviour should have been challenged repeatedly. The issues raised in the report highlight the fact that many young offenders are themselves vulnerable and underline the need to address offending in a strategic and multi-agency manner as recommended by the Commission on the Future of Policing in Ireland. That is why I am establishing a steering group. It will consider the matter and make serious proposals on how to deal with youth justice in future. I am also very interested in looking at international best practice and what works in other jurisdictions that we can learn from and introduce here. I look forward to receiving the support of Deputies in the House on this very important matter.

I welcome all that but we are not any clearer. There is an indication from the Minister of State, the Commissioner and the Policing Authority that there is a wider issue. The Minister of State said the Garda Commissioner is looking into it. Can it be said, therefore, that a review is taking place into the possibility that cases involving adults were not properly progressed? If so, what is the category of offence or what scheme is involved?

I do not believe the Minister of State would tell us that the Commissioner is looking into it unless he was of the view that something is amiss. If he was entirely confident, as is often the case, he would be indicating that he has no concerns about the adult prosecution system. This is clearly not the case. There is a concern but the House and the public are not being informed of the nature of that concern. Is a review taking place? What is the nature of offences, schemes or probation under which adult cases are potentially not being properly progressed and people are not being properly prosecuted?

I am aware, as is the Deputy, that members of the Policing Authority asked whether similar issues could arise in the context of the prosecution and management of adult crime cases. The Commissioner acknowledged it would be necessary to examine the question further, which is where it lies at present. The authority has indicated that it will assess how the wider implications for Garda crime management and prosecution procedures should be addressed. The Department has already been in contact with the authority in this regard and will remain in close contact to monitor developments and ensure that we get a clear overall picture of crime case management and prosecution. The authority has asked the question and the Commissioner is investigating to see whether there is anything there. I do not think there is a relationship between what we are dealing with today regarding youth diversion programmes and young people whose cases were not dealt with as they should have been. The question was asked and because it was asked it must be answered. I am sure the Commissioner will provide answers in due course to the authority, which is the appropriate place it should be answered. When we have that information, I will happily bring it to the House.

Civil Partnership Legislation

Jim O'Callaghan


32. Deputy Jim O'Callaghan asked the Minister for Justice and Equality his views on the ruling that the prohibition on testifying against a spouse extends only to married couples and not to civil partnerships or other forms of relationship; the actions he will take to address the issue; and if he will make a statement on the matter. [4428/19]

Before we take Question No. 32, I do not need to remind the Minister or Deputy O’Callaghan that decisions or judgments of a duly constituted court cannot be subjected to review or discussion in the House. I presume they are both well aware of this.

I am very aware of the ruling. A decision of the Court of Appeal made two weeks ago threw up a very interesting point for the Legislature. I do not want to deal with the details of the case but it concerned the rule that a spouse cannot be a compellable witness in a criminal trial. The argument made was whether it applied to people in civil partnerships or cohabiting people. The Court of Appeal ruled it does not do so and that it is a matter for the Legislature. I am interested to hear what the Minister has to say on it.

I acknowledge what the Leas-Cheann Comhairle stated and I will of course comply. I wish to address the issues raised by Deputy O'Callaghan in a general manner . As he is aware, the provisions of Part IV of the Criminal Evidence Act 1992 do not prohibit one spouse from testifying against the other but provide that a spouse is competent to give evidence except where both spouses are co-accused. Section 22 provides that a spouse is compellable at the instance of the prosecution only in limited circumstances.

The question of amending Part IV of the Criminal Evidence Act 1992 to extend the provisions relating to the competence and compellability of spouses and former spouses to give evidence so that they would also apply to civil partners and former civil partners, which is the issue at hand, was considered during the drafting of the Bill that became the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.

At the time, the Attorney General advised against the inclusion of such a provision because of concerns relating to Article 41 of the Constitution. The Attorney General advised that Article 41 requires a clear distinction between the institution of marriage, as recognised by the Constitution, on the one hand and a civil partnership on the other. A further reason for not including such a provision for civil partners was the constitutional protection for the institution of marriage having the effect of protecting the privacy of the marital relationship.

In the Dáil and in Seanad Second Stage speeches on what became the 2010 Act, the then Minister informed the Houses that the Attorney General had advised that in order to comply with the Constitution, it was necessary to differentiate the recognition being accorded to couples who register their partnerships with the special recognition accorded under the Constitution to persons who enter into a contract of marriage.

I should also mention that the Law Reform Commission examined issues relating to marital privilege in its 2004 consultation paper on the rights and duties of cohabitees and did not recommend any change to the existing position.

I thank the Minister for his reply. This is obviously a complicated issue. To try to simplify the law as it stands, under the Criminal Evidence Act 1992, a spouse is not a comparable witness except in circumstances where an offence has been committed against that spouse, a child or a person under 17 years of age. The reason it is of significance to the Oireachtas is we now find ourselves in a society where not everyone gets married. People are in long-standing relationships with partners who, for all intents and purposes, have the same relationship as married people. Alternatively, people are in civil partnerships. It seems to create an anomaly in the law that only individuals in the protection of marriage are afforded a privilege that does not apply to others. I am conscious of what the Minister has said with regard to the advice of the Attorney General in 2010 and the importance of distinguishing the institution of marriage from other institutions. It seems to stand out as an unusual statutory provision when we think of how modern Ireland exists at present. Does the Minister have any proposal on how it could be dealt with to reflect more accurately modern Irish society?

I mentioned the view of the Attorney General in 2010. I have no evidence to suggest it has in any way changed. I also acknowledge the importance of the role played by the Law Reform Commission insofar as it was quite clear in its not recommending any change to the existing position, whereby cohabitants do not come within either the ambit of the Evidence Amendment Act 1853 or the later Criminal Evidence Act 1992. This was for two reasons. The first is that as cohabitation was not to be equated with marriage it would be incorrect to extend marital privilege to cohabitants because the privilege developed in the context of, and is specific to, the relationship of marriage. The second is the restriction on marital privilege in the context of serious crime by the 1992 Act may be seen as a move away from marital privilege generally.

Another way of looking at it would be that we need to question whether there is a necessity to maintain the marital privilege provision, as the Minister refers to it. The Minister has a concern and the advice of a former Attorney General was that applying it to others in civil partnerships could create constitutional difficulties but perhaps consideration should be given to the existence of the rule in the first instance. The purpose of it - and it is an archaic rule - was not wanting to put spouses in the position of having to give truthful evidence that could damage their relationships with their husbands or, to a lesser extent, their wives or place them in a position that would damage their relationships. We need to give this careful consideration. The reason it is relevant is because the Court of Appeal stated the issue that arose in the case is a matter for the Legislature and we need to give consideration as to whether we should do something about it.

I note the comments of the President of the Court of Appeal in the context of the judgment. I will not say anything further about it. Referring back to previous debates, it is clear that while there is a need to respect the entitlement to the equality that civil partners enjoy under Article 41 of the Constitution in particular, this must be balanced against the need to respect the special protection that article affords to marriage. The 2010 Bill was carefully framed to ensure a balance in any potential conflict between these two rights.

On the question of amending Part IV of the 1992 Act to extend its provisions to civil partners and former civil partners, it was decided not to proceed along those lines. I do not detect an appetite to revisit it. I am happy to engage further but I stress the importance of the position of the Attorney General at the time. I have not seen any evidence to suggest the legal position has in any way changed.

Question No. 33 replied to with Written Answers.

Garda Complaints Procedures

Clare Daly


34. Deputy Clare Daly asked the Minister for Justice and Equality the status of progress of the five section 42 inquiries established in response to the independent review mechanism; the cost of same; and if he will make a statement on the matter. [4426/19]

I am inquiring as to the status of the five section 42 statutory inquiries into some pretty serious incidents that were initiated following the internal review that was carried out.

Four of the inquiries related to tragic deaths. I believe three of the inquiries have been concluded. In respect of one of them, the person has withdrawn while another one seems to be in some kind of la-la land. What is the status of these inquiries?

I thank the Deputy for the question. While the inquiries were formally established on 15 May 2017, in practice, it took some time to get them equipped to be fully operational. A retired judge was appointed to conduct each of these inquiries and the orders establishing the inquiries prescribe that on conclusion of each one, a report will be submitted to me.

Two of these inquiries have concluded and reports have been furnished to me. Both involved tragic fatalities and the families have each been seeking answers for what they believe were failures by the authorities regarding the circumstances. I reiterate my condolences to those families on their losses.

In each case, I sought the advice of the Attorney General about publication of the reports. I was advised that any breach of individual privacy rights or adverse comments about any party should be avoided where possible. I, therefore, arranged for anonymised versions of the reports to be provided to the families and published on the Department's website. This was done before Christmas.

The central findings of the reports were clear. Each report identifies issues that require a response from An Garda Síochána in order that the families can have as complete a picture as possible of the circumstances of the death of their loved ones. Everybody will agree that this is the very least they deserve.

Upon receipt of the reports, therefore, I wrote to the Garda Commissioner regarding the issues raised in each of these reports. Where the judges identified failings by An Garda Síochána, I have asked the Commissioner to consider these and notify me of what actions he proposes to take in light of these findings. When I receive his reply, I will decide whether any further action is appropriate. I will, of course, be in further contact with the families in this regard.

I believe the third inquiry is complete and that the judge is simply writing up on the report. In the three cases that are complete, the families involved met the judges before the cases started, their legal teams met the inquiry team and they received a transcript of the proceedings every day. An Garda Síochána and the DPP were present with a legal team so that they could interact with the judges. Yet in the case of Shane Tuohey, a former constituent of the Minister, and his family, who are constituents of the Minister, the judge will not meet with the family or their solicitor and will not have any contact with them. He meets on his own, transcripts are not provided and neither An Garda Síochána nor anybody else, including the Tuohey family's solicitor, is allowed to be present. The family's solicitor has sought a copy of the transcript in line with other people's solicitors but, again, there has been no reply to that. They know from one person who attended the inquiry that the judge shot that individual down in terms of his testimony because that individual gave information that the judge said contradicted the evidence given by a member of An Garda Síochána in a written report. This is not adequate, fair or transparent. It is time for the Minister to intervene and appoint a new person to this inquiry.

I do not intend to change the terms of reference of the inquiries but I have listened carefully to what the Deputy has said. In each case, the terms of reference were set by the Attorney General. They were also the subject of consultation with the Policing Authority of Ireland. It is clear from what the Deputy said that one of the individuals involved appears to have a concern, which appears to revolve around the conduct of the inquiry. In the event of any complainant having a concern, I suggest that such concerns be raised in the first instance with the judge conducting the inquiry. I am very conscious that these inquiries are independent of me and this House and rightly so. That is reflected in the terms of reference.

The issues have been raised consistently with the judge in question. The solicitor hand-delivered a letter with nine serious questions, the most significant one being why the family is not being provided with the transcript. The judge replied a few days later telling the solicitor not to contact him again. That was last September. The Minister is aware of this because I have written to him and received a reply regarding this matter. I raised the matter in a parliamentary question and the Minister seemed to imply that the family could seek a judicial review. We are not asking for the terms of reference to be changed. The terms of reference are basically the same for all of the inquiries. How can the other three judges carry out their inquiries, bring in the legal teams, allow the hearings to be conducted in public, as it were, and produce the transcript at the end of every day but this judge will not do so? The family is asking whether it is because Judge McDonagh operated in the Tullamore area where gardaí have been called into question about their actions and have had their activities investigated. Is there a conflict of interest? The Minister cannot stand by and expect the family to take a judicial review at enormous expense regarding a mechanism that was supposed to be put in place to help them. This is causing them further pain and hardship. They have written to the judge and the Minister. Somebody needs to do something. We are not asking for the terms of reference to be changed. It is patently non-transparent and unfair.

The Deputy has made very serious allegations in respect of the conduct of this inquiry.

That is right.

I do not believe it would be appropriate to intervene in these ongoing inquiries, of which there are five. Three have been concluded. An extension of time has been sought in respect of two of them. I am very anxious that all inquiries are completed as expeditiously as possible. Each inquiry, including the one referred to by the Deputy, must be conducted in line with the terms of reference but must also respect constitutional and statutory norms and norms established by the European Convention on Human Rights regarding fair procedures that may be applicable to all such inquiries. Each of the families and individuals central to these inquiries are legally represented.

Not at this one; they are not.

The families are in a position to make representations directly to the judge. Their legal advisers are in a position to advise as to the law and to liaise directly with the judge on a regular basis. I listened carefully to what the Deputy said but I am not going to intervene in what is an independent statutory inquiry. I believe there are remedies available in the event of the type of grievance referred to by her.