JOINT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN’S RIGHTS debate -
Friday, 28 Nov 2003

Vol. 1 No. 41

Review of Criminal Justice System: Presentation.

Chairman

I welcome our guests and viewers on TG4, who will follow this series of hearings over the next six days as part of our legislative and administrative review of the criminal justice system. I thank TG4 for televising the whole process.

These hearings arise in the context of real public concern at recent developments and questions being asked as to whether there is a need for reform of certain areas of the criminal justice system. On a positive note, the joint committee is acutely conscious of the fact that a large proportion of the system currently in place and the current application of the law of evidence works perfectly well. We are also very alert to the possibility that we could be accused of adopting a knee-jerk reaction to recent events. It is fair to remind ourselves that the criminal justice system deals successfully on a daily basis with a huge number of cases, including those involving organised crime, and it would be disproportionate, because of difficulties in particular cases, to suggest that the system has suddenly collapsed or that the constitutional legal basis of that system has been discredited.

The Minister for Justice, Equality and Law Reform has encouraged every Member of the Dáil to participate actively in a review process involving examination of the adequacy of legislative provisions, resource allocations and administrative practice to see whether and what changes are required and to consult with all appropriate persons and organisations involved in the criminal justice system. However, there are criminal gangs operating in our society, engaging mainly in drug related activities. The Government, Members of the Oireachtas and the people of this country are not prepared to tolerate gangs, drug barons and other criminals. It is essential that we continue to review, reform and examine the issues that lead to gangland crime.

If it is a question of laws, resources and the dedication of the Garda, we must continue to build on the solid base now in place. In the past few years many of the criminals have been taken off our streets and out of circulation. Many of them are in jail serving long sentences. However, we face a new and dangerous problem today. A new breed is arising and taking hold of gangland crime. Many of these ruthless leaders are very young and we must take serious and real action against this new strain of criminal, many of whom are vicious and extraordinarily ruthless.

In parts of Limerick and Dublin enormous efforts have been made by the Garda to deal with criminals, and many have been apprehended. However, there is a deeply evil group of individuals who will stop at nothing to prevent others from giving evidence. There are people who think they are above the law. The good and decent people of this country have had enough of this. We must take action, focus on the problem at hand and create real and concrete solutions.

That is why the Joint Committee on Justice, Equality, Defence and Women's Rights has decided to conduct a series of hearings to assist the Minister for Justice, Equality and Law Reform, Deputy McDowell, in his review. We intend to initiate serious public debate on what reforms are needed in certain areas of the criminal justice system to deal with these gangs who believe they are above the law.

On the subject of recent criminal proceedings, it will be appreciated that we are very limited in what we can say. The Minister has already stated in the Dáil that he has been in close consultation with the Garda Commissioner and the Attorney General and has briefed the Government at length on the events and their implications. We will examine a number of areas of the criminal justice system, with the aim of reforming or introducing specific legislation to deal with the serious problem of gangland crime. In the area of substantial criminal law we will focus on the issue relating to the possible offence of membership of a criminal gang.

The hearings will examine the powers available for investigation into crime. The Garda must be provided with every power possible to deal with these gangs. We will refer to the areas covered in the proposed new criminal justice legislation, including DNA profiling, increased powers of detention and search warrants, among other issues. The area of uncooperative witnesses is of particular relevance to previous well known cases. We will deal with the whole question of protection of witnesses, witness evidence and the protection of jurors.

The issue of admissibility of prior witnesses' statements will be central to the committee's examination. This refers to the use the court can make of a prior witness statement when the witness subsequently refuses to testify at the trial or recants on the statement. The committee will look at other jurisdictions, focusing in particular on the Canadian approach. We will also focus on the area of prosecution appeals. We will discuss issues raised by the Law Reform Commission and by the DPP on this area which suggest that prosecution appeals should represent a real and substantial element in the criminal process.

These are some of the main issues that will be discussed and debated publicly by key players in the area of criminal justice and experts in the field, including academics, legal practitioners and members of the general public. It is essential that these hearings will be conducted in public, and I again thank TG4 for televising the whole process.

In the wider debate we will look at the areas of current best practice in other legal jurisdictions to prevent witness intimidation and secure successful criminal prosecutions, the steps needed to be taken to speed up criminal trials, the possibility of extending the admissibility of video taped interviews as evidence in court, other changes which might be effected in the criminal justice system and how they might impact on the right to a jury trial in accordance with law. Policing, resourcing, operational and administrative issues, the courts system and any other relevant matters will be considered.

I thank in advance everybody involved in the hearings for giving their time and providing their expertise. Following our hearings a report will be presented to the Minister for Justice, Equality and Law Reform, containing the texts of the relevant submissions together with the recommendations of the committee as to what legislative and-or other changes are necessary to bring about an improvement in the current situation. These hearings are essential, and we must not allow the thugs and the gangsters to subvert the legal process. If we allow this the result is anarchy. We owe it to law-abiding citizens to ensure this does not happen.

We will now commence the hearings, and I shall first briefly explain the format of today's meeting. I am delighted to welcome representatives of Victim Support and the probation and welfare service. We will shortly welcome Dr. Gerard Hogan, a law lecturer in Trinity College Dublin. Each of the groups will be invited to make a brief presentation of approximately six or seven minutes, after which two members of the committee will lead the questioning, which will then be opened up to other members of the committee.

We hope to briefly hold a general discussion at the end, and we must conclude by 11.30 a.m. I first extend a welcome to Ms Ann Meade, the administrator of Victim Support, and Ms Moe Reynolds, the co-ordinator of the Victim Support services. Victim Support is an organisation offering emotional and practical help to all victims of crime through a network of branches throughout the country, as well as through a range of specialist services. I invite Ms Meade to make a short presentation.

Ms Ann Meade

In the submission committee members have before them we have included some information on Victim Support and its services. Our submission arises in the context of the considerable experience we have gained since 1985 in dealing with victims of crime and the issues which affect them. Our staff and volunteers have a wealth of experience that can provide an important context to the criminal justice system.

Victim Support's focus is on the victim and his or her personal experience. Our overall remit is the rights of victims of crime everywhere. While we do not profess to have academic legal expertise, we offer a professional service that has on-the-ground experience to set the wider legal issues in a very human context. The matters which we bring to the committee's attention arise in regard to two of our specialised services in particular. The first is our families of murder victims service, which was established in 1996. While many victims who come to Victim Support may require only a once-off visit or phone call, those unfortunate people who need the families of murder victims service find themselves in need of an enormous amount of practical and emotional support.

In 2002, the families of murder victims service handled 177 new referrals. However, our 25 specially trained volunteers made 750 victim contacts between new and existing referrals. This is because of the long-term and intensive support needed by people in this kind of terrible crisis. Furthermore, because of the long delays in cases reaching the courts people are often left in limbo for years. Victim Support is called upon over these lonely months to provide some solace and to let families know that they have not been forgotten.

The second service we provide is the court witness service, which is a court accompaniment service. It was launched in 1992. In 2002 the service handled 168 new referrals. A single case may involve supporting a large family in a trial which may take weeks. We support victims and their families through sentencing, hearings, remand hearings, and are with them to face the unbearable delays and postponements which they may encounter. When working with victims and families of murder victims in the court witness service, we understand that for a victim a crime is not necessarily a single event in time. It is experienced as a life-altering trauma from which it make take years to recover.

Ms Moe Reynolds

We have put together some recommendations for submission to the committee, covering several items. The first recommendation, based on our experience, is the need for Garda witness escorts to the courts. Witnesses and victims are often left to their own devices to find their way to court. This is particularly problematic when witnesses and victims are coming up from the country. On occasion the victim's family, defence witnesses, State witnesses, and all of their supporters are on the same train every day coming up to court and this causes serious problems and opportunities for volatile situations to erupt. Garda escorts are essential.

Chairman

I am sorry to have to interrupt the witness but there is a technical matter which I must mention. While Oireachtas Members enjoy parliamentary privilege in what they say here, witnesses do not enjoy the same privilege. It is a matter to which I must alert the witnesses although I am sure they will not say anything that requires privilege.

Ms Reynolds

Some courtroom protection might help, specifically, separate waiting rooms for witnesses in cases where this is deemed best. The legislation on perjury and contempt is based on common law and it would be beneficial to put that on a statutory basis. We also support the idea of written deposed statements given in custody being allowed as evidence in certain circumstances. The UK Criminal Justice Act 1988 allows this in certain circumstances, but it must be approached with caution because the written statement leaves the defence without the tool to cross-examine, which is very important. We also support the videotaping of deposed statements, subject to criteria, following the Canadian example. Videotaping of all interviews would protect the interviewees and the gardaí.

These changes need to be set in the context of reducing delays because if years pass before a case goes to trial the opportunity for intimidation is much greater. Two years is a long time. That needs to be looked at first and foremost. In terms of reducing delays, Victim Support favours the proposal to move the Central Criminal Court outside Dublin, which is already happening in Limerick, with the caveat that we are anxious to maintain the anonymity of rape victims. There would need to be some device whereby victims could have the choice of requesting that their trials be moved outside their location, to Dublin if necessary, in order to protect their anonymity. This was one of the reasons for moving it to Dublin in the first place and those reasons are still valid as the victims need to be considered in those cases. We support a scheme for Garda liaison officer training, specifically for families of murder victims where one Garda who has adequate training and support and supervision is allowed to become the liaison officer for a family. This happens on an ad hoc basis, which is difficult for the family and the gardaí. We understand that there is a move to look into this kind of training scheme. Those are the main recommendations in our submission and I am now open to questions.

Deputy Costello

I thank Victim Support for that valuable presentation. Its insights, derived from its experience, are appropriate and pertinent. In a general context, yesterday there occurred a senseless killing of a man in front of his family, a failure to empanel another jury in Limerick and a threat to a witness in court, all of which underlines our task today of ensuring that we operate a relevant criminal justice system.

Ms Reynolds said that the present system for Garda liaison officers is an ad hoc one and that if there was a specialised Garda liaison officer unit the families of the victims and the witnesses would be in a better position to give evidence with less fear of intimidation. Could she expand on this and describe the system that Victim Support operates, its extent, the number of volunteers involved and what assistance it receives from the Garda Síochána? How widespread is the Garda system?

Ms Reynolds

We have 25 volunteers in our families of murder victim service, a small service within Victim Support and we depend on the gardaí for all referrals for murder cases. Due to the seriousness of the case we must ensure that we do not intrude on the family. I issue an information pack which the gardaí give to the family. We then wait for the family to contact us when it is ready. In the United Kingdom, the Metropolitan Police set up quite a comprehensive scheme in London after the Stephen Lawrence murder and we would like to see a similar scheme established here. It brings together police officers who are interested in this work, which is very specialised because it involves a long-term commitment and involvement with the bereaved. It requires an understanding of bereavement and of the different family dynamics that emerge after such a crisis. They are given the time to have regular contact with the family.

Given the delays in bringing cases to court, it is difficult for the Garda liaison officer to have continuing contact with the family over two or three years when nothing is happening because the case is waiting to come on. The gardaí are under pressure to continue their other roles outside this contact with the family. We understand that there are moves in Templemore to look at a way of establishing a corps of Garda liaison officers around the country, providing one or two in each region who would have the support and the training to do this kind of work. This would benefit everyone. The gardaí would forge better relationships with the families and the communities in which they are working, the witnesses would know what was happening and have one contact to provide a line to the trial, and it would help the families. For these reasons we would encourage such a development.

Deputy Costello

This is very much concerned with a procedural and legal aspect to the operation of the criminal justice system. From its own dealings with witnesses, could Victim Support give us an idea of how extensive it thinks fear is among witnesses coming to court, facing procedures they are not used to, what level of intimidation they might experience, and how this is revealed to them?

Ms Reynolds

This committee meeting resulted from some very high-profile cases of witness intimidation, but anyone who goes to court is scared. It is a very intimidating experience. Courts are small spaces where the family of the defendant and the family of the victim, or even the victim himself or herself, may be seeing each other for the first time. One of the important things we notice is that familiarity is a huge factor. If people had the opportunity to go into the court ahead of time, and were told in advance what would happen, what the procedures are and where the defence and prosecution sit, that would ease the anxiety and help people to be better witnesses. The anxiety for everyone involved would decrease. Currently, people receive a summons telling them they must be in a particular court - court 24 for example - but they do not know where that is. That is where Victim Support comes in. We provide a letter which is included with the summons, which helps.

Deputy Costello

The Garda liaison officer would be a person to take them through the processes.

Ms Reynolds

The Garda liaison officer could certainly do so, if that role were expanded. Currently, these officers have huge responsibilities as they are responsible for all the witnesses, but in particular cases, specifically rapes and murders, where the trial would be longer and more traumatic for the victims and witnesses, the Garda liaison officers could certainly play the role suggested, in conjunction with Victim Support. They currently do so.

Deputy Costello

Ms Reynolds referred also to a situation where victims, defendants and witnesses all travel together by train, for example to Dublin from some other town or city, and there seems to be no escort service available, or assistance to ensure they do not mix and are not affected by each other's presence on the same public transport. Ms Reynolds might comment on that.

Ms Reynolds

That is a problem. I do not profess to know all the resource issues of the Garda, but it would be a question of whether the Garda has the resources to escort witnesses, particularly in the more intensive and high-profile cases, and to supply transportation rather than allow witnesses to make their own way. Currently, our experience is that families, victims and witnesses must make their own way to Dublin, which can be difficult in many situations.

Deputy Costello

I have a final question on this point, after which I will pass on to Deputy Hoctor. Is it the opinion of Victim Support that victims are treated very much like the Cinderella in the criminal justice system?

Ms Meade

Absolutely. Victims are the forgotten people in society. Our system of justice relies on victims reporting crime, and many victims expect to see justice done in some way. A summons puts the fear of God in people, especially those from a rural background. When people receive a summons, that does not exactly convey confidence to the victim who must appear as a witness. Victims look to the criminal justice system for fairness and they do not always get fairness or justice.

Deputy Hoctor

I thank Ann Meade and Mo Reynolds for their very valuable submission. In looking through it, I noted the concept of intimidation and its definition. Mention is made of people who are witnesses, who sometimes very quickly become victims because of the very valuable information they hold. What is the experience of Victim Support members in working with such people, witnesses who become victims because of the threat of intimidation and because of the crimes they have witnessed? I mean in particular witnesses who may be members of a criminal organisation and become victims because of threats from the organisation of which they are members.

Ms Reynolds

That is a very good question. We realise that some witnesses become victims because of the intimidation they encounter. Intimidation calls up the idea of very loud verbal intimidation or physical intimidation, but many witnesses feel intimidated because they are living in communities. Subtle intimidation is exerted even when a witness is merely going to the shop. Delays make this worse, because the more a trial is delayed the greater the opportunity for such subtle intimidation.

Victim Support is a non-judgmental organisation supporting people in a non-judgmental way. Whether people are perceived to be part of a criminal gang or whatever, there are always victims and people who need someone to talk to in an emotional capacity. They also need practical questions answered in terms of giving evidence. We do not give any legal advice or provide financial resources. What we do is allow people's anxieties to be aired, which is necessary, and listen to them when they say they are frightened about going to court and do not know what is going to happen. We approach all witnesses in a sense not as victims but appreciating that they are in a sensitive position involving much anxiety, regardless of their background or what might have happened to them previously.

Deputy Hoctor

Does Victim Support believe that media coverage, which is sometimes very explicit and painful for victims, in some way intimidates victims from coming forward to give valuable evidence?

Ms Meade

We believe it does. We have many examples of the effects which media coverage, in particular newspaper photographs, have on victims. I can think of one instance in which the elderly parents of a victim who lived in another part of the country had their house shown on television and in newspapers. They had already been feeling extremely vulnerable and would perhaps not immediately have been associated with the victim, but they found this particularly difficult to deal with.

When a new case emerges in the media and there is reference to a previous case, victims, people who are trying to get on with their lives, are drawn into it, their names mentioned. We recognise that the media have a job to do, but from the point of view of victims, the coverage often is not very fair.

Deputy Hoctor

In the light of what Ms Meade said in response to Deputy Costello's question about the victim and indeed sometimes the witness being the Cinderella in the criminal justice system, does she believe that collectively as a group, all of us interested in ultimately promoting justice and truth have a much greater role to play with the media in calling on people who are witnesses, informing them that there are support services there? Does she think that we ourselves will have to work at assisting and looking after those who hold that valuable information? We never see advertisements asking people to come forward if they have witnessed certain events, and informing them of the support systems available, indeed for victims too. Have we a greater role to play with the media in spreading the good word?

Ms Reynolds

The Chairman mentioned that we have a good system. If one were to watch only the media one would think the whole system might be crumbling, but every day witnesses and victims come forward and give their testimony. Most witnesses and victims want to be heard and to tell the truth. It is important to promote and support those people and focus on them as well as facing some of the difficulties in terms of intimidation.

I understand the Deputy's concerns about the media scaring off other witnesses particularly in vulnerable communities, but if some steps are taken to allow people feel safer about giving their testimony, such as providing escorts to the trial and reducing delays, so that the whole experience is better for them before they even get to court, and if general support is given, people will feel better. If perjury and contempt are put on a statutory basis and real sentences are attached, that would be a deterrent as well. It would be indicate the serious consequence of making a statement in a Garda station and then retracting it. All of those would go some way towards countering the media message that everyone is being intimidated. Most witnesses - we help them everyday - go to court, give their evidence, are relieved and leave. That needs to be emphasised also.

Senator Terry

I also welcome the representatives of Victim Support, which does wonderful work. I wish to ask two brief but related questions regarding the delay in bringing cases to court. The delegation mentioned in its report that these delays can be up to three years or more in some cases. What is the effect of that on the victim? There is anecdotal evidence that a large number of rapes are not reported. Does this have anything to do with the fact that the victim feels intimidated and, therefore, does not report the crime?

Ms Reynolds

Delays would probably be one of the major effects over the years. It has got worse because of the increasing backlog. It is the number one difficulty for families and rape victims. One can imagine the effect if an incident happens and one has to wait three years. If one has been bereaved, one tries to move on. However, one has the sword of Damocles hanging over one's head if one is waiting for a trial to take place. Due to the delays one might be called to court, but then it is delayed another year. People feel they cannot move on; they are stuck in the healing process. It thwarts their efforts to try to cope with the crisis. They may be going for counselling and doing many things to help themselves to get over what has happened to them and to come to terms with it. It is a life changing experience and yet they are waiting for the court case to happen. It is delayed and they have to wait again. The delays can be longer than three years. We have supported people who have waited five years with delays in between. On a human and emotional level, it is one of the main difficulties, particularly regarding more serious crimes.

Ms Meade

I will take the second part of the Senator's question about whether a large number of rapes go unreported. There is an image out there that strangers commit rape. In the Irish experience, the victim and the offender more than likely are known to one another. Obviously, that creates a difficulty for the victim of rape in reporting the incident. We have found that victims of rape who come to us initially are reluctant and have difficulty reporting. Often we have a hand-holding role to play in allowing victims to come to the point where they feel they can report the rape. However, it is generally accepted that many rapes are not reported.

Deputy Mulcahy

I want to ask about the issue of separating witnesses from the accused in criminal trials. We are all aware that many courthouses are in Victorian buildings, many of which have been refurbished. In some cases, witnesses enter by the same door as the accused, although perhaps not in the case of violent crimes. Is it time to look at redesigning courthouses? Is it time to ask the Department of Justice, Equality and Law Reform to draw up a template for a new style of courthouse where witnesses would enter from different access points and be interviewed in different places? Has the delegation any thoughts on that issue?

Ms Reynolds

The Courts Service has done a fantastic job in addressing this issue. It is very aware of it. In the newer courthouses, there are victim support rooms which have made a phenomenal difference. This year, Judge Quirke donated a room to Victim Support in the Four Courts. We have been in operation for ten years and it is like a gift from the gods because it affords victims a small amount of privacy. One is very exposed in court and in the hallways. It is a small room, but it has been a tremendous help. It is a question of priorities also. There is a limited amount of space and the buildings are very old. When we look at redesigning them, separate entrances should be considered. Even in the older buildings, it is an important priority. For the process in general, it makes for a more relaxed witness and a more relaxed victim. It makes the whole process of the trial more efficient and benefits everyone at the end of the day. The state of the buildings is an obstacle in many ways.

Deputy Deasy

I thank the delegation for coming here today. Senator Terry asked about the issue of reporting or non-reporting. The crux of this matter is that we have to get to the bottom of how bad the situation is regarding reporting. If we listen to the people from the Rape Crisis Centre and the SAVI report which it commissioned, it is clear there is massive under-reporting. A couple of months ago, the head of operations of Victim Support questioned the accuracy of the Garda statistics. How bad is the situation? The delegation has laid out its recommendations and proposals. The only way anything will happen is if there is an admission and an acknowledgement of a major crisis as far as non-reporting is concerned in the area of sexual abuse. How bad is the situation and have we reached the point of crisis when it comes to crimes of sexual abuse?

Ms Meade

Yes. We are well aware of the point. Some will say that as few as one in four crimes is reported to the Garda Síochána. There is no way of knowing in any one year how much crime has been committed. In other countries, for a number of years, there has been a biannual victims' survey. Some 56 countries take part in this survey. To date, Ireland has never taken part. We are represented on the crime council and we have been trying to bring forward this point for many years. There should be a survey of the real incidence of crime among the public. We understand from the crime council that this will be initiated in 2005 and this will give a better perspective. On the one hand we will have the Garda figures, but, on the other, we will have figures which come to light through a survey of the general public.

Deputy Moynihan-Cronin

I welcome the delegation. I presume in many cases children are either victims or witnesses. Is there a system in place to assist children going to court and, if so, is it adequate?

Ms Reynolds

At present, there is not a dedicated system in place. We help children on a regular basis, and their families which is part of the package. Children give testimony by a video link. One of the main things we try to do is familiarise them with the location of the building and what it looks like so that they are familiar with what the experience will be before they show up. We also help the parents to cope because they are often the main supporters. We are looking at a joint European project. There are projects around Europe, particularly in Scotland, that specifically train volunteers to work with children in the courts. There is a three-tiered approach and there is some information about that in the submission. We would like to follow that example, which was set in Europe, and it is an area in which we hope to participate. There is definitely a need for it and we recognise that point.

Senator J. Walsh

One of the main recommendations was that there would be more rigorous enforcement of the perjury and contempt legislation. Would the delegation make any distinction between witnesses who might be collaborating with the accused in some way and somebody who, through fear, might not come forward in court to give the evidence he or she gave previously? If the law is rigorously enforced, could it lead to witnesses not coming forward in the first instance as a result of seeing people going to prison who had failed, out of fear, to respond in court in the manner in which they had done previously?

Ms Reynolds

That is an important distinction to make. Witnesses in this context have made statements in Garda stations. If there was some mechanism whereby those statements could be admitted as video or written evidence, it might mean not having to go down that road. The evidence given in the police station could be submitted. We realise that people do not always tell the truth in the police station so there would have to be certain criteria for that evidence being admitted. It would also have to be explained carefully by the trial judge. However, that is a matter of jurisprudence.

I accept that if we rigorously enforce perjury and contempt laws there would be a worry such as that outlined by the Senator. The person has already given a statement and told the truth. It is a question of being able to go that extra step during the trial. It applies when people are probably subverting the course of justice at that point as opposed to not testifying out of fear.

Deputy F. McGrath

I appreciate the work the organisation does, as do many public representatives. I believe there is another hidden category of victims. These are people in certain communities who feel totally intimidated and bullied by gangs in their flat complexes or on the local streets. These victims are often forgotten and society generally ignores them. They do not even get the opportunity to express their views. Would Victim Support categorise them as victims as well?

Ms Meade

We would categorise them as victims. It is extremely difficult for the victims in these communities. Generally there is great fear. As Ms Reynolds said earlier, the victim this week might have been the offender last week. We find it extremely difficult to try to support victims in these situations and the gardaí have a hard time trying to work in these communities. We realise that it is a problem and it is difficult to know how it can be tackled. Local authorities have taken measures to try to deal with these incidents. However, many of the gangs we hear about operate in these communities so they are fearful places in which to live. It is difficult for the gardaí, the authorities and ourselves to deal with it.

Chairman

I thank Ms Reynolds and Ms Meade for their tremendously interesting presentations. I am sure the members of the committee and the people viewing these proceedings are excited about what they had to say. There might be more questions towards the end of the meeting so I hope they will stay until then.

I welcome the representatives from the probation and welfare service - Mr. Seán Lowry, the chief probation and welfare officer; Mr. Terry Boyle, assistant principal, probation and welfare service; Ms Elaine Slattery from the Moyross project, which is funded by the probation and welfare service, and Mr. Barry Killeen, from the Southill outreach project. I remind the witnesses that while Members of the Oireachtas enjoy parliamentary privilege, they do not enjoy the same privilege.

Mr. Seán Lowry

I thank the committee for giving us the opportunity to appear before it today to make our presentation. The members will have read the submission from the service so I do not intend to go over it in detail but, in the time available, to make a number of relevant comments on it.

Limerick has, arguably, the most extensive joined up area of disadvantage in the country. Pockets of disadvantage are distributed throughout the city of Dublin but there is an axis of disadvantage running from the north side of Limerick, through the centre and into the south side, largely on the east of the city. It is important to realise that the major problems that have occurred in the criminal justice system are emanating from a small part of that large disadvantaged area in Limerick. It would be a mistake to believe it is typical of what is happening across the city or in the disadvantaged area of the city.

At least 95% of the residents of that area are decent, law abiding citizens who are net contributors to, rather than detractors from, society. That is the context in which the problems that have been evident recently in Limerick must be seen. The minority that has given rise to the recent difficulties are members of families with a tradition of delinquency and criminality. It has been said that when there was a previous upsurge of delinquency and criminality in Limerick in the late 1980s, the people who are involved in it today were then young teenagers. They have been in the criminal justice system ever since.

That reflects two major factors which I have mentioned in the submission. The first is that many people in that area of disadvantage feel excluded and alienated from the general economic well being the country enjoys. Many of them did not have the experience of making progress in their personal lives while the rest of us enjoyed the benefits of the Celtic tiger. There was a strong perception in the Dublin area, for example, that many people who had been involved in delinquency and crime and were dealing with problems of addiction and so forth managed to obtain employment during the years of the Celtic tiger. However, they were among the first to lose their employment when recession occurred. That was not the experience of people in the disadvantaged area of Limerick.

The second point relates to the impact of drugs in Limerick. Limerick does not have the same problem with opiates that we have in Dublin. The drug problem is centred around the supply of cannabis and recreational drugs. The distribution network for cannabis and recreational drugs is believed to be at the heart of the difficulties which have arisen in Limerick. The rows and feuds often arise from minor incidents in the school yard or on the streets and, given the membership of particular families, that gives rise to difficulties.

It must also be acknowledged that the situation has been exacerbated by the widespread escalation of crimes of violence throughout the country. We can all speculate about how that has occurred in our society over the past 20 years. I want to outline the context in which this discussion might usefully take place. I have set out what I would claim were the positive ways the statutory bodies reacted when there was a previous upsurge in violence. I refer in particular to the establishment of projects such as those in Southill and Moyross. I have also outlined the outcome of previous responses. We should be clear that the majority of people who participated in the activities which were put in place there responded positively to them. We are dealing with a minority of people who did not respond or whose family influences were greater than the influence of the projects.

Chairman

I thank Mr. Lowry. Perhaps during the questioning you will be able to say what you could not say in the short time allocated.

Senator Kett

I welcome Mr. Lowry and the delegation to the committee and I thank them for the informative presentation. Like Deputy Costello, I represent Dublin's inner city. We share many of problems experienced in Limerick. We have also had projects, such as the RAPID programme and Breaking the Cycle. However, for some reason, we still seem to have problems. Despite numerous responses in recent years, the delinquents who were there ten years ago are now the hardened corps. They seem to have fallen through the net. Have those responses worked and, if not, why?

I am also interested in the Outreach programme. How many community-based projects are there and how many of them are based on community service orders? What type of activities have been put in place? Have there been many breaches of such orders?

Chairman

Perhaps the delegation could answer those questions and we will come back to you, Senator Kett.

Mr. Lowry

Regardless of what programme we put in place for dealing with offenders, whether it is for people at a low or a high level of risk of reoffending, we cannot expect that everybody will turn themselves around and leave their offending behind them. In many situations, the internationally accepted figure for a positive outcome from a programme is approximately 55%. Some 55% of people respond to what the programme offers, while 45% do not respond. The people who have not responded to the programmes which have been put in place in Limerick are in that 45% bracket. However, we must remember that substantial numbers of people have responded positively to it.

Mr. Terry Boyle

As regards community service, we would have between 40 and 50 people in Limerick city at any one time on service orders across a range of community projects. They would work on environmental schemes, with youth services or in support of sports clubs. Community service would provide approximately 10,000 working hours across the city in any one year. One positive aspect of the community service scheme is that we can say with great pride - it is a testament to those who operate the scheme - that we have not had an incident in Limerick where a perpetrator or an offender has offended on the scheme or in the area where he has been performing the community work. The offenders often work with what would be considered vulnerable groups, such as the elderly. We do not have any record of offending in those areas. That is an indication of the success of the community service scheme with that group of offenders.

Senator Kett

Does the service continually review projects? It appears that the projects which are in place are not having any effect on some of the more hardened criminals, who generally slip through the net. Does it matter what projects are in place for some of these criminals, given that they will probably ignore them? Are we throwing good money after bad by contemplating such projects? Should we just put them in jail?

Mr. Boyle

Offenders are referred for community service assessment by the courts. It is a decision of the courts whether an offender is appropriate for such a referral. As regards the projects which are working, my colleagues will be able to give the Senator some of the success stories of people who have come from difficult backgrounds and who have moved on to successful participative lives.

One area which we in Limerick hope to develop in the future is the intensive probation schemes, which are available in other areas of the country. They have been quite successful with serious and persistent offenders. Like other parts of the public service, we are constrained by resources. However, that is one area we hope to develop.

Senator Kett

Mr. Lowry suggested that family and environmental influences outweigh the influences of the projects. To what extent is parental responsibility invoked under the Children Act 2001? Is Mr. Lowry satisfied that it is being invoked as much as possible? Does the delegation, as dedicated professionals, have any recommendations outside the scope of the Children Act which might result in a better and more enhanced rehabilitation process?

Mr. Lowry

As regards dealing with young people, the involvement of families in addressing the problems of young people has always been a feature of the work of the probation and welfare service. Much of the behaviour of young people is a reflection of family dysfunction, therefore, it would be inappropriate for us to ignore dealing with parents and the problems of families in our work with young people. The provisions of the Children Act 2001 will afford us an additional opportunity to work with families because some of its provisions allow the court to order families to participate in parental supervision orders, for example. Additionally, family conferencing will be introduced early in the new year, whereby the court will ask the probation and welfare service to arrange family conferences involving the parents of young people appearing before the court.

Senator Kett

What percentage of offenders on probation are on probation for drug or alcohol related abuse? Is there any evidence that one type of rehabilitation centre is better than another? I believe there is an adversarial system and a non-adversarial system in place.

Mr. Lowry

Surveys have been conducted on two occasions on the workload of the probation and welfare service in the Dublin area, where the most serious drug misuse problem exists. On both occasions it was clear that 55% to 60% of the cases referred to the service involved offenders convicted of drug related offences or who had a drug problem to which their crime may have been contributing. It is quite an extensive problem in the Dublin area.

On the two different approaches Senator Kett mentioned, the drug courts system is still in its pilot phase and it is not yet clear how successful this approach has been. I am sure an evaluation of the approach will carried out at the end of the pilot phase, which will enable a more balanced answer to be given to the Senator's question.

Chairman

Will Ms Slattery tell us about the Moyross project?

Ms Elaine Slattery

The Moyross probation project, known as Céim ar Céim, is an education and training based programme for young offenders and youth at risk from Moyross and the surrounding catchment areas. It deals with youth from the ages of 15 to 25 on a full-time basis during the day in an education and training setting and with 12 to 17 year olds in the evenings after school. During the day, programmes are changed to suit the needs of individual clients. We deal with the FETAC foundation programmes and, more recently, the applied leaving certificate programme. The first participants we have taken in have moved from FETAC to the leaving certificate programme.

We include programmes on numeracy and literacy. Some of our participants would have left the school system as early as the age of seven. They would be illiterate, therefore, we would need to change their programmes to suit their needs. We also have programmes on crafts, woodwork, health related fitness, social education, vocational education, hotel catering and tourism, computers, information technology and outdoor pursuits. These begin in the morning at 10 a.m. and continue until 4 p.m. or 5 p.m. in the evening.

Most of the work we feel we need to begin with is to assist in the integration of the youths into society. Some of them find it quite difficult. Their communication and personal development skills are often quite low. It has sometimes taken us from a year and a half to two years to make eye contact with some youths with poor communication skills. We work on this basic level at first and then commence an academic and training programme.

Chairman

We will return to this subject. I call on the Fine Gael spokesperson on justice, Deputy Deasy, who has a few questions.

Deputy Deasy

Time and again we are told there is no crime crisis. I asked the ladies from Victim Support about the non-reporting of crime and they agreed it presents a serious problem. I was struck by Mr. Lowry's reference to an escalation in violent crime. Is the problem getting worse?

Mr. Lowry

It is a matter of record that crimes involving assaults have been on the increase over the past 15 to 20 years. I was simply referring to the fact that this has been the case. The problem is not peculiar to Dublin or Ireland. It is a world-wide phenomenon and is largely related to crime in urban areas.

Deputy Deasy

Mr. Lowry's paper states that current probation and welfare service staff and project resources are inadequate to plan an enhanced attack on the problem. It states that Garda initiatives have suffered from a diversion of community gardaí into the investigation of serious crime. The view is also expressed that a probation and welfare service intensive supervision project is needed in Limerick, yet the service's budget may be cut by 8% according to the Estimates.

Mr. Lowry

That is correct and obviously we are not particularly happy about it. However, almost every Department has had cuts——

Deputy Deasy

Not every Department.

Mr. Lowry

The majority have.

Deputy Deasy

It is clear that somebody in Government does not believe the service needs more resources to do its job.

Mr. Lowry

I do not believe that is the case. It is a question of how big a slice of the cake is provided to the Department of Justice, Equality and Law Reform for the criminal justice system and of how big a slice of the criminal justice system resources is made available to the probation and welfare service.

Deputy Deasy

Does Mr. Lowry believe the service can accomplish its goals in spite of its having its resources cut by 8%, considering that we are talking about a very serious problem, particularly in Limerick? Can he reconcile this cut with what is happening on the ground? What is the view of the representatives of the Moyross and Southill projects on this matter?

Mr. Lowry

Certainly, there is no denying that the 8% cut makes our task much more difficult. Even without it, the resources of the probation and welfare service have been spread very thinly throughout the country, and there are a number of cases regarding which we are simply not able to meet the demands being made of us, both in courts and prisons.

Deputy Deasy

What is Mr. Killeen's view on the matter in terms of the value of the probation and welfare service within his community? How does he respond to the cut of 8%. Does it make sense to him given the situation on the ground?

Chairman

Mr. Killeen might also tell us about the Southill outreach project.

Mr. Barry Killeen

The project came into existence 12 years ago as a community-led response to circumstances not too dissimilar to those that now obtain in another area of Limerick city and which are being covered comprehensively by the media. The project is street-based, by which we mean that we walk the streets in the community and meet the young people. We build relationships with them, invite them to our project to engage in various activities and try to identify the needs and supports they may require in terms of accommodation, employment, education, etc. We tie in with various other projects, including the probation service, to help provide those supports. We also work with the Garda diversion projects and the JLOs. We liaise with the courts regarding a number of our clients.

I was asked about cutbacks. I have already stated that we were established 12 years ago as a response to circumstances similar to those that now exist. I can put my hand on my heart and say that the trouble would be continuing in Southill were it not for the likes of us and the probation officers having a presence on the streets and building up a relationship with those young people. Mr. Lowry mentioned that the young people from ten years ago are involved in the serious crimes now coming to light. I firmly believe that the lack of projects similar to those in Southill and Moyross has contributed to this.

I strongly suggest that there should be projects like those in Southill and Moyross in every area of Limerick city, along the belt of disadvantaged areas Mr. Lowry mentioned. If cutbacks take place that will not happen.

Deputy Deasy

Will Ms Slattery respond to the idea that this will be cut by 8%?

Ms Slattery

I feel the cut of 8% will definitely affect the probation services and projects in particular. There are 72 projects in Ireland and each is given an operational budget. This year we made an application to the probation service for an extension of resources in Moyross. We sought this because of the need to change the project in the light of the clients' needs. We currently have 52 people on the waiting list. When one works with 18 young people in one day and has others waiting to join the project, a drop in finance will definitely affect us. We would not be able to expand in the manner we proposed to the probation service.

Deputy Deasy

I understand there are about 350 probation officers dealing with about 7,000 people. Is this correct?

Mr. Lowry

We have 290 professional staff in the probation and welfare service. At any given time we have approximately 5,500 people on supervision in the community. This would not necessarily include all those involved in projects such as those in Moyross and Southill.

Deputy Deasy

Can the service carry out its job with the staff level it has?

Mr. Lowry

We struggle to do the job and are not able to meet all the demands made on us. There will be no reduction of staff numbers within the probation and welfare service as a result of the 8% cut in our budget. While we hope that the level of grants to the 74 organisations - to which we allocate €12.5 million - will not have to be reduced, it looks like we cannot give them their usual small percentage increase. We hope that it will not be necessary to reduce the allocation. The 8% cut will have to be located in other areas of our budget.

Deputy Deasy

Presumably many of the young offenders we are talking about have gone through the probation service. In many cases the service has failed and we find that they are repeat offenders. What does the service do with those incorrigible people?

Mr Lowry

The Probation Act, Children Acts and other criminal legislation makes provision for people who do not comply with court or temporary release orders made by the Minister to be brought back to court or prison. Therefore if a person does not co-operate with the service, a remedy will be available. When a probation officer brings an offender back to court, it is for the court to decide whether to invoke another sanction, be it custodial or non-custodial. In many cases courts will use the opportunity to reinforce the need for the offender to comply with the conditions of the order.

Deputy Deasy

I have to ask this question——

Chairman

I am sorry, we have only time for two short questions. If there is time afterwards we will come back to it.

Deputy Deasy

The Chairman knows there will no be time afterwards.

Chairman

There may be if the Deputy does not continue to cause a——

Deputy Deasy

There is a pertinent question for the people of Limerick. We have been told time and time again that there is no crisis. Can the delegation tell me if the problem will go away over time without proper resourcing?

Chairman

Thank you. I now call on Deputy Ó Fearghaíl.

Deputy Deasy

The Chairman does not want me to ask the real questions.

Deputy Ó Fearghaíl

I was fascinated by Mr. Boyle's comments about the use of community service orders in Limerick and how effective they have proven to be. Does Mr. Boyle feel community service orders are being sufficiently used by courts throughout the country? Are there practical and logistical difficulties in lining up work in communities for offenders that are directed in that way?

Mr. Boyle

Our job as an agency is to oversee and promote community sanctions. If there is any possibility that an offender can be helped to respond positively, rather than be faced with the devastating effects of imprisonment, we are anxious that this opportunity be given to him or her.

We have found communities to be generally responsive as regards finding projects on which community service can be carried out. We have been in a position to offer a valuable resource to a wide range of community and voluntary groups across the country. They have benefited from and are supportive of the scheme. We generally find that as we become more established, we are developing the range of services that we can offer.

In recent years, we have found that many offenders were working during the times when normal community service would have been available to them. We had to find additional work on Saturdays and this, rather than finding projects for offenders to work on, has posed the greatest issues and challenges for the service.

Chairman

I now call on Deputy Paul McGrath to ask the final question of this session.

Deputy McGrath

I welcome the groups to the meeting. In his presentation to us, Mr. Lowry made reference to the scheduling of appointments by probation officers in Limerick at their office in order to avoid confrontation. He said that court referrals to the probation and welfare service "shadowed" in attending at their office. He also was concerned at the emergence of a new generation of young, out of control offenders. Those three statements indicate a society that is verging on being out of control. Do probation officers need Garda protection to do their work?

Ms Slattery referred to seven year old school leavers. As a former schoolteacher I find this incredible. What has happened to the service to ensure children go to school? It must have fallen apart if children are dropping out of school at the age of seven.

Ms Slattery

We come into contact with certain youths who left school at the age of seven or eight years when they committed an offence. This would have happened quite a few years ago as they are now between 18 and 21 years. There are quite a few initiatives in Limerick which deal with early school leavers. This is being dealt with. We also operate a programme that helps vulnerable children to stay in school. That is part of the programme that occurs in the evenings, after school hours.

Mr. Lowry

I put certain references in the submission merely to indicate the impact the difficulties caused by the minority of people involved in serious crime are having on the operation of the service. We do not require Garda protection for the operation of our office in Limerick - it is not quite as bad as that. However, our staff must be careful about the times at which they invite certain clients to the office. The mention of shadowing is an indication of the type of intimidation that takes place.

Deputy P. McGrath

Is this preventing people who have been referred by the courts from attending the service?

Mr. Lowry

No.

Deputy P. McGrath

The fear exists at that level.

Mr. Lowry

Obviously the fear exists at that level and our clients articulate their fear to the probation officers, but it has not constituted a problem beyond that.

People are conscious that there is a new generation of out of control children - they are hardly teenagers in some cases - emerging in Limerick. The message we have been getting from people such as Ms Slattery and Mr. Killeen is that their projects are fully occupied with their current clientele and they are not able to reach out to the new generation. This is another indication of the need for additional resources.

Chairman

I regret that time does not allow us to continue with this discussion. I thank the visitors for their most informative contributions. It is obvious that the hard work and dedication of the probation and welfare service, which is reflected in the people here today, is of great benefit to everyone in the country.

Dr. Gerard Hogan is a senior counsel and law lecturer in Trinity College. He is a former member of the constitutional review group and is currently a member of the Offences Against the State Acts review group. He is vice-chairman of the Incorporated Council of Law Reporting for Ireland and the author of several books and numerous articles on a wide range of topics. We have a copy of Dr. Hogan's submission and I invite him to give a brief outline thereof. Before he begins I must remind him that while Members of the Oireachtas enjoy privilege, he does not have the same privilege.

Dr. Gerard Hogan, SC

The system of criminal justice is fundamentally sound. It must be borne in mind that while ongoing reform of criminal law is a necessity, it is rarely a panacea in itself. In the aftermath of the murder of Veronica Guerin in 1996 we had the bail referendum, but irrespective of one's views on that amendment I do not think it has contributed in any appreciable way towards dealing with the crime problem. Another example is the Offences Against the State (Amendment) Act 1998, which was enacted after the Omagh bombing. Perhaps some of its provisions were desirable and helpful to the Garda but it was not a magic tool it could use immediately to combat illegal organisations.

Witness intimidation could cause a serious and insidious destruction of the system of criminal justice if it is not tackled. I do not want to overstate the problem - I do not have personal experience of criminal trials and there are others who would be better able to speak of this. However, one of the problems recently encountered concerns a hugely technical aspect of the law of evidence contained in the Criminal Procedure Act 1865. The Act provides that if a witness is turning hostile towards the prosecution and makes a statement which is inconsistent with a statement previously made to gardaí, the prior inconsistent statement can be introduced, but only for the purposes of destroying the witness's credibility. It is not evidence against the accused. Therefore, if a prosecution witness fails to swear up, as it were, and does not give evidence along the lines of his previous statement, the prosecution is in a quandary because all it can do under the 1865 Act is obtain leave from the judge to have the witness declared hostile and the earlier statements introduced, not as evidence against the accused but only to destroy the credibility of the witness. It effectively cancels out the evidence of the witness. That is no good to the prosecution, however, because one cannot try to make bricks without straw. If the case rests entirely on everybody recounting his or her statement, with no positive evidence against the accused, that is a real problem.

The 1865 Act is a codification of common law rules which were evolved in a different era, but they reflect understandable concerns which are set out in my submission about hearsay statements and the admission of out of court statements. For reasons that are quite technical, but are set out in my submission, I believe the 1865 rule was never justified in itself, even by reference to 19th century standards and the law of hearsay, and it is certainly not justified now. I point to a number of other court decisions, most notably a decision of the Supreme Court of Canada in 1993 and a US Supreme Court decision in 1970, and legislative changes in other common law jurisdictions which have departed from the orthodox rule as enshrined in the 1865 Act. If there are to be changes, however, the Oireachtas should move cautiously, and any changes to the Act should have inbuilt safeguards. Most notably, it would be salutary if in major cases witnesses making statements to the Garda were videotaped. That would be of great assistance.

Chairman

I thank Dr. Hogan for his contribution and his brevity.

Deputy F. McGrath

I welcome Dr. Hogan to the committee and thank him for his submission. There is a perception out there in the wider society that our justice system is losing the balance between the constitutional right of the individual to a fair trial and the right of society to an effective criminal justice and law enforcement system. Is that a fair assessment? As a lecturer in law and senior counsel, and from his experience and contact with the legal profession, does Dr. Hogan still think the fundamentals of our criminal justice system are sufficiently effective to deal with the current increase in violent organised crime?

Dr. Hogan

That may well be the public perception, but I do not think it is justified. The balance is properly and fairly struck between due process and an effective criminal justice system. Even leaving the Constitution out of it, we have exact parallel guarantees of due process in Article 6 of the European Convention on Human Rights, which will be part of our domestic law with effect from 31 December. In the 50 years we have been a member of the European Council, since we signed up to the convention, there has been only one case from Ireland which involved a criminal conviction. This is an amazing record which is a salutary and proud tribute to the inherent fairness of our criminal justice system. It is not unfairly biased towards the accused - the balance is fairly well struck. I am not saying there is not room for significant and ongoing improvement, but the general balance struck is fair and sound. The criminal justice system is not losing the balance in the fight against crime. It is being presented with new challenges and if witness intimidation were to take hold, that would be reason in itself for looking at the 1865 Act. That is one of the most important points this committee could address. In terms of the overall picture, however, I disagree with the idea that the criminal justice system is ineffectual and ineffective in dealing with modern day crime.

Deputy F. McGrath

Dr. Hogan seems to have great confidence in, as he states in his submission, "the quality and robustness of the criminal justice system". Why, then, does he think we had miscarriages of justice cases over the years, for example the Nicky Kelly case or the Sallins train robbery case, among others? Does he feel that if we brought in more excessive legislation, it would increase the risk of even more miscarriage of justice cases?

Dr. Hogan

Obviously, no criminal justice system is perfect. We are dealing with fallible humans and I have no doubt that innocent people have been wrongly convicted in the past. The Deputy gave some examples and I am sure there are others. It is impossible to develop any human system that is free from error. It will always be fallible.

One of the dangers in changing the 1865 Act is that we would be asking a jury to act on the evidence of somebody who is obviously telling an untruth. The witness is either lying now when he recounts the statement or was lying then when he made the statement to the Garda. Obviously, there are inherent dangers in a jury acting on the basis of somebody who has committed a deliberate untruth. That is one of the reasons I suggest that the 1865 Act must be changed, albeit with safeguards.

If we are changing the law, it must be mandatory for the trial judge to warn the jury that it must be extremely careful before acting on the basis of a witness who has plainly perjured himself or herself. Nonetheless, if we do not deal with this problem, recent events have regrettably formed an object lesson for some people on to how to avoid a criminal justice system. It could have very insidious and destabilising effects on the criminal justice system unless this problem is tackled.

Deputy F. McGrath

Dr. Hogan mentioned the Sixteenth Amendment of the Constitution Act 1996, which dealt with bail and was passed after the murder of Veronica Guerin. From his experience and expertise and from the evidence of increasing violent crime, would I be correct in assuming that legislation is not having a real effect in dealing with violent crime? Does he suspect that we have to come up with new and radical ways of dealing with crime?

We had a debate earlier about social and educational disadvantage. As somebody who worked in a disadvantaged school for 20 years and as we noted, about 95% of children in such schools were good against the odds, while the other 5% were living in violent and dysfunctional families. They are the criminals and prisoners of tomorrow and we must have a policy of early intervention. It is not just a question of making laws.

Dr. Hogan

Obviously, this is outside my supposed area of expertise. The Deputy and I come from different political backgrounds in so far as the operation of the free market system and other factors are concerned. However, I agree entirely with the premise of his question and what the people from the probation and welfare service are saying is of much greater importance than anything I can say about technical changes in the law of evidence.

Evidence has been given this morning about the operation of the juvenile liaison schemes and outreach programmes for disadvantaged areas. I fully agree and subscribe to the view that this is at the core of the problem. However, obviously, there are particular problems in the criminal justice system that can be addressed by legislation and this is an area where there can be worthwhile reforms, albeit subject to safeguards. However, it is an illusion, which is the premise of the Deputy's question, to think that legislation can really solve the nature of the problem. Legislation is the easy bit.

Deputy F. McGrath

My final question relates to witness intimidation and the use of video taping. Would Dr. Hogan support or advise us as a committee to be more supportive of the Garda having video tapes in every Garda station? Does he accept that taking statements from witnesses or suspects provides for more effective policing and better productivity, particularly when the judge can see the demeanour of the claimant? Does he agree that video use is the way forward because all parties have their rights protected and we have a better chance of getting at the truth and achieving justice?

Dr. Hogan

I entirely agree, but when I was a member of the Offences Against the State Acts review group, I was struck forcefully by a number of points. First, it became clear to me at the time in 1999 to 2001 - it may have improved in the meantime - that the number of Garda stations with appropriate facilities for video taping did not appear to be very extensive. Second, in the context of video taping suspects, the Garda reported that many suspects did not want video taping, which was also proving a problem. I am suggesting something further, that in the context of these sort of cases, we do not only video tape the suspects, but also the witnesses as they make statements. That obviously will require a further cultural change in the way in which these statements are taken.

Deputy Ó Fearghail

I join my colleagues in welcoming Dr. Hogan and I thank him for his very useful paper which has been circulated. He referred in the paper to the Offences Against the State Acts and indicated that we have one of the shortest periods of detention in the European Union. Will he tell us a little about the European experience generally in that regard? Does he think that our criminal justice system would be well served by having a longer period of detention? If so, how long should it be?

Dr. Hogan

The short answer to the latter question is " I do not think so". The period is correct and, if anything, I would prefer to go back to the previous period of 48 hours. Even four hours of detention in a Garda station, never mind 48 hours, is for many people an unpleasant and traumatic experience, particularly if they have never been charged. Obviously, one must have realistic periods of detention and maybe in the past our detention periods have been too short for major crime. However, it is still the case that if one is charged with murder, one cannot be arrested under the Offences Against the State Acts. One can only be arrested under the Criminal Justice Act and there is a maximum detention period of 12 hours in that context.

Nevertheless, longer detention periods are not the answer because the admissions made by suspects under prolonged questioning where they have been detained in a hostile environment over a long period of time are inherently unreliable. That is not a reflection on the Garda, but it has contributed to a number of miscarriages of justice, even with our relatively short detention periods.

I would be the first to say that many aspects of the Offences Against the State Acts are unsatisfactory and that was outlined in our report in 2002. The impression is created that somehow extremely draconian and oppressive powers are given to the Garda. However, if one looks at the standard powers given to police by the laws in other jurisdictions throughout the EU, there is absolutely nothing exceptional about the Offences Against the State Acts.

Deputy Ó Fearghail

A number of other members already commented on the growing number of criminal gangs and the extensive and violent nature of their activities. Does Dr. Hogan believe it is possible to frame legislation to deal effectively with that situation and what type of legislation would he envisage?

Dr. Hogan

Again, as I said to Deputy McGrath, legislation is the easy part. If legislation could solve problems, we would be well on our way to being a perfect society. I am not sure there is any easy or ready made solution in terms of legislation that will address this problem. However, I suggest that the committee conducts further inquiries in respect of the RICO Statute in the United States. My knowledge of it is imperfect, but I do know that it has been very effective. I forget the exact acronym but this legislation was drafted in the late 1960s and early 1970s to get at organised crime and it has proved spectacularly effective. It might be productive for the committee to speak to an American lawyer or federal prosecutor with experience of that statue to explain how it works effectively against organised crime in the US.

Deputy Ó Fearghail

I suppose it is true to say that the public became aware of the need for witness protection only in the context of the Gilligan case. Does Dr. Hogan see a need for the State to develop a formalised witness protection programme?

Dr. Hogan

I understand from what I have read in the newspapers that there is such a programme. Perhaps the Garda would be in a better position to assess whether it needs to be formalised. One of the reasons why these programmes work in the United States is that it is a vast country where people can disappear on a witness protection programme without neighbours asking questions and so on. Ireland is not like that; everybody knows everybody else and communities are more integrated and closely knit than would be the case with comparable communities in the US. That is a practical consideration to bear in mind.

Deputy Ó Fearghail

Victim Support referred to the need for the Garda Síochána to develop its victim liaison service and to formalise it. Many victims of serious crime, families of murder victims or victims of serious sexual assault are concerned about the lack of communication between the Courts Service and the families and the victims. Does Dr. Hogan see any legal impediment to the Courts Service developing a formal liaison service with families and victims?

Dr. Hogan

I understand that the Courts Service has made new efforts to do this in recent years but one has to bear in mind that the courts have to be seen to be independent and cannot compromise themselves by being seen to be on the side of one individual or group, however deserving. If victims need support that should come from other groups. There is a role for respecting the feelings and sensitivities of victims and their families in so far as the court process is concerned. I would like to think that is better now than in the past. One should look to other agencies to provide practical and effective support to victims of crime.

Chairman

We are now coming towards the end of the session and there are a number of members offering questions. I would like to leave it open to them to ask questions of any of the groups or witnesses in attendance, whether it be Dr. Hogan, Victim Support or the probation and welfare service.

Deputy Costello

My question is to Dr. Hogan. In his opening remarks he said that witness intimidation can be very insidious for the criminal justice system. I agree that law reform cannot be the panacea for dealing with it. In that regard, we heard Victim Support's proposals. Dr. Hogan made a specific proposal regarding a change to the 1865 Act. He said it could be a fundamental change, in that it would effectively amount to a U-turn on present procedures. At present, when a witness becomes hostile following a recantation of, or a refusal to give testimony, effectively his or her deposition can be used against him or her. It is now suggested that the deposition should be used as evidence against the accused, which amounts to a turnabout in the approach to be taken in this area. Dr. Hogan says that we can now proceed on this basis because supports are now in place, such as the videotaping of evidence.

If this becomes a practice, what is there to stop a witness clamming up at the beginning of his or her statement to the Garda, knowing that any deposition could be used and that it will be videotaped? Several video interviews in Garda stations have appeared in public. Instead of recanting at a later stage or giving different testimony, the witness will not co-operate at the early stage. Is it not the case that a major part of the reason for witness intimidation is that witnesses very often provide the sole evidence used by the prosecution and that greater use of modern forensic techniques to corroborate would reduce the danger of intimidation?

Dr. Hogan

I agree that there are dangers and disadvantages in changing the 1865 Act, some of which I highlighted, but the balance of advantage is at least towards giving it deep consideration. I agree also that if people realise this will be a change in the law they might not make witness statements at all. Nevertheless, the converse proposition is that were people to realise that witnesses who have previously made statements against the accused can be intimidated to recant their statements, and that is not evidence against the accused so that the prosecution collapses, it would, were it to catch on, be very insidious. Part of the proposal is based on the technological change which I mentioned. Besides, the rule formulated in the 1865 Act was too exclusionary because one could easily have a situation where somebody who was the principal witness to the killing or the assault could make a statement which could be judged to be inherently probative and reliable, yet it is not there in evidence to be weighed in the balance against the accused.

Of course there is danger in changing the rule, as I have mentioned, because then one is asking a jury to act on the basis of someone who has obviously told a lie, either now in the witness box, when he or she recanted, or when he or she made the statement in the first place. That is why I suggest that any changes must be made cautiously. Other jurisdictions have departed from this rule. As far as I am aware, ours is one of the few common law jurisdictions left with it. The United Kingdom, Canada and the US have changed it. I commend it to the committee for consideration.

Deputy Mulcahy

My question is also addressed to Dr. Hogan whom I thank for attending the committee. I was interested to hear that only one Irish criminal case has come before the European Court of Human Rights. Have there been many more cases from continental European systems? In the context of European development, many of our European neighbours may try to encourage Ireland to adopt their prosecutorial system of justice. However, we treasure our system.

Dr. Hogan mentioned the racketeering and the RICO laws in the United States, with which I am acquainted. In Ireland, the DPP, acting in conjunction with the Garda Síochána, prepares a case which is then given to the legal prosecuting team. There seems to be some divide between these two bodies, whereas, in the United States, it seems that district attorney builds a case and then presents it with more force or vigour in court. Is it time for us to look at a system of a prosecuting examiner to deal with serious organised crime while also retaining our system? Would that be possible?

Dr. Hogan

In answer to the Deputy's first question, without wishing to be disrespectful, the main continental European countries have a worse record in terms of criminal cases before the European Court, albeit they have large populations. The difficulty with moving to the US system of district attorneys is that many district attorneys have used this as the foundation for future careers and have sought to gain popular support by an almost excessive zeal and advocacy in the fight against crime. That might not be a bad thing but it is at odds with our tradition of a more dispassionate view on the part of the prosecution. Rather than urging juries to convict, prosecution lawyers simply present the evidence and say it is open to the jury to convict beyond reasonable doubt. Our tradition of detachment, objectivity and dispassion in the prosecutorial system is commendable.

Deputy Deasy

Dr. Hogan made the most significant comment when he said it was an illusion to believe legislation could solve this problem and that what the probation and welfare service did was the most important part of the issue. I believe it would be more productive if every chief superintendent came before this committee, as well as some members of the Judiciary. The budget for the probation and welfare service was cut by 8% this year in the Estimates. That is significant. How did the situation in Limerick occur——

Chairman

The Deputy can only ask one question. Many other members have questions.

Deputy Deasy

Deputy Costello asked two. How did this situation arise and what can we do to deal with it?

Mr. Lowry

The budget of the probation and welfare service has been cut, like the budgets of many other Departments. There is, however, a significant development in that money is being made available from dormant accounts for the implementation of schemes in the RAPID programme areas which will be of enormous benefit to disadvantaged areas. There are balances. The co-ordinators of the RAPID programme areas will be making their applications to ADM for access to the money. It is not entirely bleak.

Senator J. Walsh

The presentation by the probation and welfare service mentions a number of matters which are contributing significantly to crime, one of which is drugs. In Limerick, the drugs concerned are cannabis and recreational drugs. I have concerns about the term "recreational drugs" because it has a connotation which is at variance with the reality. A recent article by Matt Cooper in the Sunday Tribune argued that consideration should be given to making cannabis available legally. Will Mr. Lowry comment on this?

Mr. Lowry also mentioned the influence of television and the Northern conflict. There was a time when a more censorious approach was taken to films, television and so forth but that has been relaxed. What would Mr. Lowry like to happen in this area if he considers it an important contributory factor? I agree that some of the violence on television has an effect on impressionable minds. What should be done to reduce this effect? With regard to the Northern conflict, is Mr. Lowry saying the fact it happened and gave a headline to violence is a contributory factor, or is he referring to the involvement of paramilitaries in serious crime?

Chairman

I will take questions from two more members before reverting to the representative groups.

Deputy F. McGrath

I have two short questions for Mr. Killeen and Ms Slattery. Would they support the proposal that money collected by the Criminal Assets Bureau be distributed to community groups in disadvantaged areas? There are approximately 1,800 children in primary schools who come from violent and severely dysfunctional families. Do they accept that early interventions such as the Breaking the Cycle programme can make a massive contribution to preventing these young children from ending up in prison?

Deputy P. McGrath

I, too, am anxious to hear their opinion on early intervention. What is the level of co-operation between the probation and welfare service and Victim Support? They are dealing with two different aspects of the issue but do they get together to co-ordinate projects or share information or ideas on how to better do their jobs?

Mr. Lowry

I will respond to Senator Walsh's questions. I was not referring to any paramilitary participation. I was simply reflecting that young people had been exposed to a level of violence which was different from what previous generations had encountered. It is not just the Northern conflict. Think of the television coverage of the war in Iraq and so forth. The impact of that footage on the minds of young people is a new phenomenon.

I am aware of the debate about the legalisation of cannabis and that its use has been decriminalised in other jurisdictions. However, the experience of the probation and welfare service, particularly in Dublin, is that for a significant number of offenders cannabis is a gateway drug, leading to other more serious drug misuse. On balance, I would oppose its decriminalisation.

Ms Meade

Victim Support supports the crime prevention measures about which we have heard today, particularly the programmes for the Limerick area. We earnestly hope these programmes will be able to continue. We depend on Government funding but favour the prevention of crime in the first instance and hope these programmes will be supported.

With regard to the interface between Victim Support and the probation and welfare service, in our early days there was good co-operation between the two. Nowadays, it is most prominent in terms of the victim-offender mediation service funded by the probation and welfare service. I represent Victim Support on the project in the Tallaght area. We are open to initiatives with the probation and welfare service.

Chairman

I thank the groups which have come before the committee today. I also thank members of the committee for their incisive questions. We have made a great start to these hearings which I believe will be of great benefit to society, in general, and the Minister in his review.

That concludes our discussion today. On Monday, 1 December, the committee will meet representatives of the Irish Prisons Service and the Law Society as well as Mr. Paul O'Mahony of Trinity College, Dublin.

I thank the viewers of TG4 for watching. I hope they enjoyed the proceedings and found them informative. I look forward to the meeting on Monday.

The joint committee adjourned at 11.30 a.m. until 9.30 a.m. on Monday, 1 December 2003.