Review of Criminal Justice System: Presentation.

I welcome all our guests. I also welcome back the viewers of TG4 who are following this series of hearings over six days as part of our legislative and administrative review of the criminal justice system. As I mentioned in my introduction last Friday, 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 in place and the current application of the law of evidence work perfectly well. We are also very alert to the possibility that we could be accused of adopting a knee-jerk reaction to recent events. However, there are criminal gangs operating in our society engaging mainly in drug related activities.

The Government, Members of the Oireachtas and the people are not prepared to tolerate gangs, drug barons and other criminals. That is the reason the joint committee decided to conduct a series of hearings to assist the Minister for Justice, Equality and Law Reform, Deputy McDowell, in his review of the administrative and legislative parts of our criminal justice system. We intend to initiate serious public debate on the reforms needed in certain areas of the system to deal with the gangs which believe they are above the law. Following our hearings, a report will be presented to the Minister containing the text of the relevant submissions received and the recommendations of the committee on the legislative and other changes necessary to bring about an improvement in the current situation.

We will now start the second day of hearings. I would like to explain briefly the format of the meeting. I am delighted to welcome representatives of the Irish Prison Service, the Law Society of Ireland and Dr. Paul O'Mahony. Each of the representatives will, in turn, make a brief presentation, lasting approximately six minutes, after which two members of the joint committee will lead in detailed questioning. Their fellow Oireachtas Members will put other questions to the groups. We hope to hold a brief general discussion prior to 11.30 a.m.

I extend a welcome to Mr. Seán Aylward, director general, Irish Prison Service; Mr. Seán Lennon, governor, St. Patrick's Institution which joint committee members visited recently when they were kindly shown around by Mr. Lennon, for which we were very grateful; and Mr. Willie Kane, governor, Cloverhill Remand Prison.

Before Mr. Aylward begins, I remind him that while Members of the Oireachtas enjoy parliamentary privilege he does not enjoy the same privilege. I ask him to limit his contribution to approximately six minutes.

I thank the Chairman. My colleagues and I appreciate the honour of being asked to address the joint committee today and brief its members on how our service impinges on the criminal justice system in respect of the areas of concern it is reviewing for the Minister for Justice, Equality and Law Reform. A good starting point would be to look at our mission statement as a service. The mission of the Irish Prison Service is to provide safe, secure and humane custody for people sent to prison. Our service is committed to managing custodial sentences in a way which encourages and supports prisoners in their endeavour to live law-abiding and purposeful lives as valued members of society.

Every year approximately 12,000 people are committed to prison; sometimes the same person has a number of committals. Just over 5,000 are sent to prison under a sentence having been found guilty of a criminal offence. Sentences range from a number of days for minor misdemeanours through the whole spectrum of crime and sentencing right up to life sentences imposed for murder.

On committal, if the prisoner is not known to the authorities, he or she is initially placed in a holding area of the prison pending an interview by the prison governor. These interviews take place after breakfast every morning. Every prisoner, having been assessed, is then dispersed somewhere in the system. A sentenced prisoner might be sent to another penal institution or put on a particular wing. A committal details form providing personal details on such matters as previous drug use, next of kin, previous psychiatric history and other relevant information is filled out by staff in what is called the general office of the prison. It is based on the information largely provided by the prisoner.

A large portion of the intelligence received as to the most appropriate location for prisoners comes from the prisoners themselves. They generally inform the governor if they feel they are at risk from other prisoners. The need for prisoners to be accommodated in separate areas from other identified prisoners from whom they may be at risk is of primary importance in assessing suitable locations. It is the case that at a central level the prison system also receives a certain amount of Garda intelligence. We also follow closely what is going on in our society generally. We have a good idea, therefore, on committal with whom we are dealing. It is also fair to say we are a small society and have a lot of repeat committals. The knowledge that the prison governor and officers may have of a person because of his or her previous time spent in custody is very valuable to us. Any information we obtain about potential risks is highlighted at an early stage and shared with prison management.

I am aware the committee is reviewing the situation concerning witness protection prisoners. We have relatively limited experience in this respect but held a number of prisoners in relation to the Veronica Guerin murder trial. The prisoners concerned were held in particularly restricted conditions in Arbour Hill Prison.

On segregation areas, Mountjoy, Limerick, Portlaoise, Wheatfield, Midlands and Cork are all committal prisons for different parts of the country. They have special facilities to hold prisoners in isolation from the general prison population. A similar area for protecting prisoners is also available in St. Patrick's Institution. These areas are used to cater for the most troublesome as well as the most vulnerable prisoners. Sometimes we can have difficulties between the two categories. Wheatfield and the Midlands Prison have separate protection landings where prisoners deemed to be at risk from the general population can be held. Prisoners generally seek protection. The normal reason they ask for this is they are in trouble with people on the outside because of drug deaths or have come in on sentence for a crime which has a particular odium in the prison population such as sex offending.

Among those committed to prison each year is a small percentage of prisoners who belong to criminal gangs often engaged in turf wars and ongoing feuds with other rival gangs. The allegiances are generally identified at committal stage because the person concerned offers this information freely. On occasion it is provided to us by the Garda Síochána. It is our experience, happily, that these feuds rarely spill over into serious violence in a prison setting. There are a number of reasons for this. First, we act to keep the factions apart and, second, an informal truce tends to obtain between prisoners when in custody. Prison staff tell them to leave their disputes behind while in prison and do their time. Most prisoners accord with this request. The assaults and outbreaks of violence that take place in a prison setting generally occur on impulse because of individual issues rather than any gangland issue.

It is undoubtedly the case that in the Limerick area we had particular problems in recent times. We have to taken steps to deal with them. Any prisoners who we believe do not intend to comply with our request that they behave themselves in custody are accommodated elsewhere. We have moved some members of the different factions to other prisons.

In talking about gangland behaviour we also have to talk about factionalism in other categories of crime. I refer to subversive crime and, particularly, those held on remand or sentenced from the Special Criminal Court who almost invariably go to Portlaoise Prison, of which E block accommodates prisoners allegedly aligned to various subversive groupings. These include INLA, Real IRA and Continuity IRA prisoners, all of whom are accommodated in separate areas of the prison. Up to the time of the Good Friday Agreement, some of the prisoners associated with the Provisional IRA were also held there but they are now held in Castlerea Prison. The numbers of prisoners aligned to various groupings in Portlaoise Prison are as follows: INLA, four; Continuity IRA, 12; Real IRA, 11; another faction made up of a splinter group of ex-Real IRA prisoners, 28; and non-aligned prisoners, four, making a total of 59. In Castlerea Prison we have ten persons affiliated to the Provisional IRA and two to the INLA grouping. On the ground floor of E block in Portlaoise Prison we are holding 37 prisoners who are believed by us to have serious links to organised crime. The biggest development in relation to remand prisoners is that we have a new facility at Cloverhill Prison, the governor of which, Mr. Willie Kane, is present.

We frequently hear calls for the categorisation of prisoners. We have a very small system and an informal categorisation system which works for us. I am sure there are many things we would like to do to manage prisoners better, but we are deploying the money we received in recent years as effectively as we can to make the conditions as safe and as rehabilitative as possible for the prisoners.

I am sure there are a number of other items you wish to cover but you might be able to include those when answering the questions that will be put to you. I ask Deputy O'Connor to put his questions.

There are many questions that could be posed, but we are restricted due to time constraints. I would like to be associated with the welcome extended to Mr. Aylward and his colleagues. There will be some concern about the emphasis Mr. Aylward has put on the number of repeat offenders. He has been fair in his submission and in the points he made, but there will be public concern in that regard. The Chairman, Deputy Ardagh, made the point that we are joined this morning by viewers, hopefully, all over the country. Given that such an emphasis has been placed on the number of repeat offenders and it has been admitted that many such offenders end up back in prison, does that signal a systems failure? What role has the Irish Prison Service in dealing with that problem?

It also reflects a societal failure. When a person goes to prison, it means all the other interventions and supports in society have failed and that person's freedom has been taken away. In a prison setting, we receive people who can be very damage. Drug dependency and robbing to feed the habit are major factors. I do not think we are grossly out of line with other jurisdictions in that regard. We would like to do more for prisoners, but we have to work with those who are willing. We find the younger, more active prisoners, feel they can still hack the life of crime. They do their time and it could be difficult to get them to engage. Some of the interventions in respect of drug addiction are helping and contributing to lowering the reoffending rate. However, we have a long way to go in completely reforming people.

The notion that prison itself cures the criminal is one to which not many people in the profession of criminology subscribe any more. Prison is primarily a form of incarceration and disablement. People who offend are removed for the protection of society. Within that setting whereby people are disabled in terms of reoffending for the duration of their sentences, we try through the systems we have in place to to help them. There are positive interventions from our sister service, the vocational education service. We have approximately 230 full-time teacher equivalents. They do a lot of in terms of helping with basic learning and social skills. Through training workshops and in dialogue with prisoners through programmes the Connect programmes and so on, prison staff also try to help these people, but we must be realistic about those with whom we are dealing. We are dealing with a group of people for whom every other societal intervention has failed. I do not accept that reoffenders reflect a complete failure of the prison system, but it would be a failure if we did not try and, believe me, we do try.

I apologise if my last question and my next one create the impression that I am critical of the Prison Service. As I have said on a number of occasions, including the last occasion Mr. Aylward appeared before this committee, when there was some controversy concerning my constituency and about Tallaght, which happily has passed, I support what is being done by him and his staff. It is important to record that.

I want to deal with another area of great concern to members of the public. There was great applause at the weekend for Garda initiatives in dealing with major drug seizures, but there is public concern and disquiet about the prevalence of drugs in our prisons. There is a perception that drugs are freely available in all our prisons. It may be an exaggeration to say drugs are freely available in our prisons and that many prisoners go into prison drug free but come out in a different state. I invite Mr. Alyward to say if that is an exaggeration. My constitutents regularly voice their concerns about the free availability of drugs in our prisons. This matter needs to be dealt with and, in the context of these hearings, it is a fair question to put.

I will say a brief word on that matter and then I will invite my two colleagues to comment on it from their experience at the frontline. A recent study by the Health Research Board, the author of which is Lucy Dillon, surveyed drug use among people in prison who anonymously gave honest feedback. As one would expect, that report showed that the availability of drugs within prison was far less than on the outside. Prisoners said the drugs supply, inasmuch as drugs could be got to them, was very intermittent and there were less of them available than on the outside. They also disclosed that many people who were drug users on the outside tried to use their period in prison to get treatment or to come off drugs. That is not a totally encouraging picture, but it is the most empirical evidence we have about drug use in prison and it is the most recent study. I invite my two colleagues to comment in more detail on this matter, starting with my colleague, Mr. Seán Lennon, governor of St. Patrick's Institution.

Mr. Seán Lennon

It is fair to say that there is a great deal of drugs in our prisons. As our director general said, those in prison are a society within our general society. In St. Patrick's Institution we have a drug-free division which caters for 76 boys. As of today, it is full. We have a waiting list of boys queuing up to get into it. We know that those in the division are drug free because they give us random urine samples, which we send to an independent laboratory to ensure they are not involved in drug taking. We also have a comprehensive programme to help boys who are drug dependent. We have a drug division which allows those who have never touched drugs to remain away from the drug culture and those who have, through their own deeds, rid themselves of their habit to move into the culture which does not have drugs as its sole centre.

We try to be proactive in keeping drugs out of our prisons. We have nets over our exercise yards. This limits a lot of the drugs coming in. One of the main sources of drugs coming into our prisons is over the boundary wall. We try to be proactive by having cameras outside our walls to ensure we are ready when drugs come over the wall. We also have a policy on visits to try to identify any drugs that may be passed over. We have staff who are very vigilant and specially trained and have the use of CCTV. In the event that drugs come across, we bring the boys concerned into a separate area, search them and take the drugs from them. Therefore, we try to be as proactive as possible.

The answer is yes, there is a certain amount of drugs in our prisons but, certainly in St. Patrick's Institution, I think it is fair to say they are not freely available.

Would Deputy O'Connor like to ask another question? We will then come back to Mr. Kane.

My other question relates to the submission and issue I have raised, that is, the emphasis Mr. Aylward has put on dealing with rival gangs. This will hit a pulse in terms of the understanding among members of the public of what are trying to achieve at these hearings which stem from an initiative of the Chairman arising from the situation in Limerick. I am not singling out Limerick, except to say the situation there is one about which members of the public are very concerned. What role does the Prison Service have in that regard?

Mr. Aylward spoke about segregating rival gangs and how he dealt with this. Will he expand on the subject as a contribution to the wider situation?

Prisoners tend to recognise when they come into prison that they do not have anything to gain from pursuing rivalries. There is no drug turf and no money can be made from competing with each other. As a general rule, prisoners who may belong to different factions sink into the prison population and do not exert their rivalries in a prison setting. When rivalries are at a strong level or tensions are building up before a trial, it is necessary to keep people apart from each other. We have done this in the prison system which is highly dispersed. There are three prisons in Munster and several throughout the rest of the country. Therefore, we have been able to keep far apart people perceived to be a threat or danger to each other.

I thank Mr. Aylward, Mr.Lennon and Mr. Kane for attending the meeting. I visited Mountjoy Prison recently with members of the joint committee and Mr. Lennon showed us around St. Patrick's Institution. It was an informative visit and I was impressed with the changes being made in St. Patrick's Institution to try to improve the service being provided. During our visit Mr. Lennon gave us a breakdown of information on prisoners such as the length of sentence and so forth. Does the Prison Service keep daily, monthly or annual statistics on the prison population with regard to, for example, duration of sentence, whether they are repeat offenders and so forth? Is statistical research carried out on the interventions provided by the Prison Service, their success rate and how they have improved over time?

As there are many questions, Mr. Aylward, I ask you to be brief.

We publish a detailed annual report which is now up to date. When I started in this job, it was some years in arrears. The mission to explain is most important and our latest annual report was issued at the end of the summer. We are co-operating with the institute of criminology, UCD, in a major study of repeat offenders. The University of Minnesota is also involved. It is just starting and involves many other agencies. We will get a great deal more data from it. However, we maintain good statistics which are contained in our annual report which I commend to members of the joint committee.

One of the issues the joint committee is examining is witness intimidation. The media have focused on particular cases which has probably highlighted the issue but does Mr. Aylward believe there is a general problem with witness intimidation? What does he believe needs to be done, either within the Prison Service or in general, to combat it? Does he believe the service needs extra resources in that regard? Might a proposal to privatise the prisoner escort service be risky and lead to a greater danger of witness intimidation?

We do not have a problem with witness intimidation. We would have a concern about an accused person sending messages out to try to deter a potential witness. We keep a careful eye on prisoners. Prisoners' telephone calls are monitored and prisoners are told this. We facilitate prisoners making calls to their loved ones, legal teams and so forth but monitor the non-legal conversations on the telephone. We can intermittently check them. We have no reports suggesting orchestrated witness intimidation is taking place from within the prisons. If we had, we would take the necessary action to prevent it.

What happens on the outside is a Garda matter and the force is quick to alert us to a problem. However, we do not generally have a problem in that respect.

Mr. Aylward was before the joint committee last March when we discussed the NESF report and its recommendations. Has there been any progress in implementing those recommendations and the recommendations of the inspector of prisons?

Most of the recommendations made by the inspector of prisons relate to infrastructure. His primary recommendation is that we should get out of the Mountjoy complex which is in a bad state, as members of the joint committee have seen. We would like to replace the facility which has reached its sell-by date.

The NESF report focused on the housing and employment needs of prisoners when they leave the system. This is not primarily the responsibility of the Prison Service but we have, in co-operation with the probation and welfare service and local authorities, been doing some work in that area. A number of hostel spaces have been freed and reserved for prisoners leaving the system but there is still a long way to go. There are great difficulties in getting accommodation for people who are socially excluded, not to mind those who are socially excluded and have a criminal record. There is particular difficulty getting housing for prisoners convicted of sex offences. Nobody wants to know them or have them living in his or her area. We have a long way to go but are doing the best we can in co-operation with the other agencies. We are getting good co-operation.

The mission statement refers to safe, secure and humane custody for prisoners. The recent incident in Mountjoy Prison in which the prison officers were assaulted by prisoners highlighted the issue of slopping out. It was an horrific attack on the staff, whom I commend on their humane and professional work. I was horrified to discover that prisoners were still slopping out of their cells. That should not be the case in this day and age. How many prisoners are still slopping out? There is also a perception among the public that prisoners convicted of white collar crime are treated differently from prisoners from poor, disadvantaged backgrounds.

Four years ago 70% of our prisoners were slopping out and 30% were not. We have reversed these figures. The investment we have made over the last four or five years has transformed the situation. It is difficult to resolve this problem in the older prisons because, frankly, they are crumbling. We need to replace the blocks or build elsewhere in the case of some of the older facilities. However, we are working all the time to reduce this undignified procedure for both prisoners and staff.

I regret and deplore any violence by prisoners towards staff but such incidents are mercifully rare in the prison system because the staff adopt a professional view and because prisoners, on the whole, are quite compliant and do what they are told. Both groups try to get through their day intact and without causing damage to each other. It may be the intimacy of the prison system but such events are rare.

The Deputy described it as an "horrific" attack on prison staff. The incident should be put in context. It was, of course, deplorable but it was not an horrific attack. Nobody sustained any permanent injury. It was a most unfortunate tussle and disgraceful that prisoners threw the contents of chamber pots at prison officers. However, people should not get the impression that prison life is horrific and terribly dangerous. It is not. It is the professionalism of the staff and the co-operation of the prisoners that make it manageable.

What percentage of prisoners are in prison for drug related crimes and how many are getting treatment?

We will take the Deputy's questions with a question from Deputy Costello. Perhaps members could ask one question at a time because everyone wishes to contribute.

I was hoping to ask two quick questions. I welcome our guests.

My first question relates to the witness protection programme, which was put in place on an informal basis. It appears to have disrupted the Arbour Hill Prison to an inordinate degree. There are three prisoners, 40 places and everyone else had to obtain special security clearance. The programme was also costly in terms of space, money, etc. Is the prison system in a position to cope with this programme or is it inefficient and undesirable?

We will allow Mr. Aylward to answer that and I will return to the Deputy for another brief question.

That was a unique occurrence and we were stretched, in terms of accommodation, at the time. If it arose again, we would have a more pragmatic and better solution which would not involve as much dislocation. It came on us somewhat suddenly. We would be better placed to manage that problem if it came up again.

In 2002, 241 males and 19 females were committed to prison for drug offences. I stress that these were drug offences and not drug-related offences.

When going to court, some prisoners are handcuffed while others are not and some enter by the front door of the Four Courts while others enter at the side. In addition, there is no separation between jurors, witnesses, the public and many prisoners. The system appears chaotic. Prisoner escorts are obliged to wait around for long periods and cases are often delayed or postponed. The prosecution and defence in particular cases often encounter each other in what is essentially a public arena.

The set-up in the courts is not ideal. There is not a dedicated criminal justice complex in Dublin. It would be of assistance if we had such a complex because we could whisk prisoners in and out without their being in public view or being photographed. It is against prison rules for us to facilitate prisoners being photographed. We are supposed to do the opposite and we do our best in that regard. Prisoners are delivered to court, especially early in many instances in order to prevent them from coming into contact with jury members or members of the press. Unfortunately, however, the latter can happen.

As a general rule, prisoners are removed in handcuffs. There have been so many instances of their either hitting prison staff or doing a runner that we had to clamp down on it. It is correct that in some of the quieter parts of the country with smaller courts, there is more discretion for prison staff to make a judgment call and not put prisoners, particularly if they represent a low risk, through the indignity of wearing handcuffs. However, where we are dealing with large numbers of prisoners in a substantial volume, a general rule must apply. The approach I take is to leave it to the discretion of the prison which has charge of particular prisoners to make the judgment call. However, we do not want any further escapes or incidents in court and that is why we have taken steps. I wish to let Mr. Kane contribute on this issue because his prison staff manage a plurality of the prisoners to whom I refer.

Mr. Willie Kane

Large numbers of prisoners come through Clover Hill Prison and I would possess little information on them. I have a general rule that prisoners who we receive into custody, particularly in the Four Courts, the Central Criminal Court and the Circuit Court, be placed in handcuffs. We could be accused of treating people differently if we dealt with matters in any other way.

When a former city and county manager, an elderly gentleman, was convicted recently, he was photographed being placed in handcuffs. Was it planned that this would be done in such a public way? I stress that I am not commenting here on the seriousness of the crime involved; that is a different question.

Mr. Kane

There was no plan, it was just an operational matter. The man in question came into custody, was placed in handcuffs and was removed to the court cells. It is impossible for us to bring prisoners to the court cells in the Four Courts area without passing through public view. There is no facility to allow us to do otherwise.

I thank our guests for coming before us today. My question is directed to Mr. Aylward. Reference was made earlier to sex offenders and last year I inquired about the rehabilitation programmes for such offenders. I was surprised to discover from the Department that only approximately 10% to 12% of sex offenders in our prisons are attending rehabilitation programmes. Mr. Aylward stated that the reason people are in prison is because society has, to a large extent, failed. As far as sex offenders are concerned, it is more complex than that and there are those who state that these people have a disease.

We discovered in recent weeks that the Rape Crisis Centre and Victim Support have strongly indicated that incidents involving sex abuse are on the rise as opposed to decreasing. The sex offenders register is maintained by the Garda Síochána and the probation and welfare service. As a result of the low rate of rehabilitation services being taken up by sex offenders and the 8% reduction in resources for the probation and welfare service announced in the Estimates, do we have adequate resources to follow-up on sex offenders? The low rate of uptake in the prisons is of great concern to some.

One of the aims of prison is proving to people in society that actions have consequences. It may be an unfashionable thing to say but whatever societal failure there may have been, people have offended. In the case of sex offenders, they have offended grievously and an independently constituted court has found that they were guilty of a crime by exerting free will against other people. Within a prison setting, offender treatment is optional. One cannot compel a prisoner to participate in rehabilitative treatment for sexual or other offences. There are low rates of participation by sex offenders in the programmes we offer, which are excellent. One argument sex offenders put to us is that there is nothing in it for them because they do not obtain discounts on their sentences. On the other hand, people would find it reprehensible if we were to give major discounts to people undergoing treatment.

The courts may have options, when handing down sentences, in terms of encouraging prisoners to take part in rehabilitation programmes or in respect of having them monitored on release. However, it is not at my discretion to compel a prisoner to undergo a treatment programme. I can only impose the sentence laid down by the courts and I cannot proffer discounts on sentences to prisoners in this category. If I was to seek to proffer such discounts, there would be public outrage. This is an extremely difficult matter with which to deal.

I am concerned that, in the short-term, we are facing a situation where prison officers may go on strike during the Christmas period. Will sex offenders be moved from the Curragh to other prisons? Can Mr. Aylward guarantee that, at the very least, those rehabilitative programmes in which they are involved will be continued in the prisons to which they are transferred?

If they move, it will be to a location a short distance from the Curragh. They will be held in a setting that is secure from other prisoners. We will be able to move their trainers to continue any training they are undergoing at present. We do not have an ongoing programme of intensive sex offender treatment in the Curragh because there are not enough prisoners held there who are interested in taking part in such a programme. No one will lose out in that regard on foot of any proposed move.

Is Mr. Aylward saying that this would be——

It is a complex issue. We have a good programme in place, details of which I outlined previously to the committee. It is similar to the group work that takes place at AA meetings, where people try to deal with the concept of lapses from appropriate behaviour and confront their demons, evasions and excuses. This is done in a group work setting moderated by outside experts and members of our psychology and probation services. We are working towards a programme that will also involve prison officers in a similar context with prisoners. However, prisoners in this category do not appear to be highly motivated to confront or deal with their offences.

I welcome Mr. Aylward and the delegation. We recently visited Mountjoy Prison and St. Patrick's Institution and witnessed the development of skills among prisoners. I was disappointed at how under resourced the prisons are in this regard. Is there evidence that prisoners who develop skills in woodwork, catering and so on are more unlikely to re-offend when they leave prison?

The higher people move up the tree of training and education, the less chance there is of them coming back into the world of crime. That is internationally accepted and we accept it too.

I thank Mr. Aylward. Perhaps, he will participate in a general discussion later. I am sorry the presentation has been brief as all the members had further questions but, unfortunately, time is against us.

I welcome Dr. Paul O'Mahony. He is head of the school of occupational therapy, Trinity College, Dublin. He was formerly a psychologist in the Department of Justice, Equality and Law Reform and is author of a number of works relating to criminal justice in Ireland. I advise him that while Members of the Oireachtas enjoy parliamentary privilege, he does not. I invite him to make his presentation.

Dr. Paul O’Mahony

I made nine separate points in my submission and will quickly go through them, touching on highlights rather than trying to cover them in detail. First, the recent problems with witness intimidation remind us of an underlying crisis in some local communities whereby local people have lost faith in the capacity of the law to protect them and to maintain normal levels of security and mutually respectful behaviour in their neighbourhoods. Given that this is the case, the State should be slow to charge a threatened person with perjury or making false statements under oath when it is unable to guarantee that person's freedom and security.

Second, there is little scope for giving police witness statements, even those made under oath or that have been videotaped, precedence over, or even equality with, current contradictory statements made by the witness in court and open to cross-examination. Due process and the high standard of proof required in criminal cases, that is, beyond reasonable doubt, rule out this approach. In addition, there is almost always a downside to reforms intended to make convictions easier to obtain. Such reforms almost always create weak points that are open to abuse and open the door to miscarriages of justice which have the power to bring the entire system greatly into disrepute. In recent years, there has been an accumulation of evidence that there are systematic problems in the way the Garda manages evidence, interrogations and the detention of suspects. There is a problem in our policing culture that has not been properly addressed and this should warn us against tampering with the balance of present safeguards to make convictions easier to obtain.

Third, it is not justified, outside of the most unusual circumstances such as when a witness's evidence can bring major figures in organised crime to justice, to invoke the full panoply of a witness protection programme.

Fourth, there is a great deal of intimidation in our more deprived areas, especially areas riddled with drug abuse, and most of this intimidation is related to low level criminal activity and vandalism and even includes intimidation by teenagers and pre-teens. Nonetheless, such intimidation impacts greatly on the quality of life of many vulnerable, older people in these neighbourhoods. It is important to maintain a sense of balance and to realise our most hopeful strategies in dealing with such intimidation should build cohesion and solidarity in communities and should work along side non-punitive primary and secondary prevention measures aimed at at risk and offending youths and their families.

The prevention of drug abuse is also an urgent priority and underlies a great deal of these problems in our communities. Some useful programmes of this sort, including the refurbishment of corporation flat complexes in Dublin and the 64 Garda youth projects that are under way, are in place but much more needs to be done in this area. Unfortunately, in the past few years, as the Celtic tiger stalled, resources have been shifted from these areas where they are urgently needed and the emphasis has almost entirely been on law enforcement and strengthening the punitive side of our system.

Fifth, most of the intimidation involving organised gangs is related to drugs and most of it occurs internal to their drug distribution system and concerns turf wars, the coercion of debt repayment and silence, discipline and loyalty within gangs. Much of this is quite disorganised because internecine gang warfare and lethal feuds of the sort that have been witnessed recently are characteristic of relatively unsophisticated, ill-disciplined and poorly organised criminal gangs.

Sixth, Ireland also has a problem with international, highly organised criminal gangs which are involved in a number of illegal businesses - drugs, prostitution, people trafficking, fraud, counterfeiting and protection. These gangs are not as obvious and are more successful at evading the attention of our police.

Seventh, there are many ways in which the efficiency and effectiveness of the criminal justice system and the courts could and should be improved. The bottom line, though, always is more resources, including more judges, and this is a problem in these financially restricted times. For example, the former Director of Public Prosecutions, Eamon Barnes, suggested a pre-trial phase in criminal trials where issues relating to disclosure and admissibility of evidence would be dealt before the jury is called. He believed this would greatly improve the efficiency of jury trials.

Eighth, tampering with the criminal justice system in a piecemeal way is almost always a bad idea but this does not mean one must adopt an immovably conservative approach. However, if we are going to modernise the rules of evidence in criminal procedure, we need to step back from the system and analyse it carefully to make sure whatever is put in place to improve matters - perhaps a new code, a written system - will take full and due account of civil liberties and the need to maintain the safeguards and protections of accused people.

Ninth, despite a number of positive changes in recent years within the system in terms of the attitude to research and in the collection of hard data on the criminal justice system, the situation is still utterly inadequate.

The annual report on prisons was referred to. In recent years, the statistical tables in the report have diminished from 30 or 40 pages ten years ago to three or four pages in the most recent annual report. The prison system is by no means the worst. There is next to no tradition or ongoing independent research on policing in the country and next to no information on the Judiciary, sentencing and the running of the courts.

Perhaps I can ask Dr. O'Mahony a few questions, particularly in regard to insufficient hard data. Is there any international benchmarking of policing, the prison service and the courts service? Carol Coulter wrote a very good article in The Irish Times last Monday, which implied that on an international basis Ireland had more police per head of population than other countries and the number of murders are far fewer than in other countries. Surely benchmarks already exist and Ireland is doing well.

Dr. O’Mahony

In terms of crime levels?

Levels of crime, the number of gardaí, the level of enthusiasm and loyalty to the gardaí by the people.

Dr. O’Mahony

That is a reasonable point. Unfortunately, a major victimisation study was carried out in 1990 which involved most countries in western Europe but in which Ireland did not get involved. The study indicated that Northern Ireland had by far the least amount of crime in all the countries studied while at the time crime levels in the Republic were 60% of those in Northern Ireland. To follow this through, our situation, although poor in our own view and one which has shown huge deterioration over the last couple of decades, is still favourable when compared to similar countries in Europe and elsewhere.

What sectors of Irish society are not represented on juries and does this in any way diminish the result a jury might find in regard to a verdict?

Dr. O’Mahony

Students, retired people and housewives are the type of people who turn up and are selected for jury service. The professions such as teachers, doctors and so on are very easily excused from jury duty. The juries we end up with, while all reasonable people who are well able to do the job, are not representative of our general society. One could say that the middle classes and professional people almost entirely evade jury duty.

Are the verdicts that emerge weak, wrong or unfair as a result?

Dr. O’Mahony

I do not think it is a question of placing a question mark over jury decisions. It is more the sense of ownership of the citizenry of the criminal justice system that is questionable. Huge numbers of people excuse themselves from the service. In other countries people are given a less easy way out of the jury system and therefore have more involvement in the system. They relate more, think more about the issues and perhaps see the reality of the situation. In this country the media and public reaction are a bit divorced from the crime situation vis-à-vis the Chairman's first question, which indicates a very different reality in an international perspective from the sort normally portrayed in the media. Spreading our ownership and sense of responsibility for the criminal justice system throughout the more influential members of society would be a good thing.

Possibly. Dr. O'Mahony has said he believes it is possible to provide some limited protection against the intimidation of witnesses and jurors and that this is largely an operational policing matter. How can limited protection be given to witnesses? What type of protection is Dr. O'Mahony considering?

Dr. O’Mahony

Entirely police work. It is an operational matter for the Garda. Perhaps the Garda could be a little more proactive and aware this might be an issue in particular cases emanating from communities which suffer from intimidation. I made the point in the submission that most of the intimidation is occurring among people who know and are known to the intimidators. It emanates from within local communities that are usually dominated by the drugs problem and other problems of deprivation.

In his second point, Dr. O'Mahony is really scathing of the police and the number of scandals in which they are involved. It is natural that as the years go by more cases will arise. The submission refers to the Morris and Barr tribunals. Serious questions have been raised as a result of the Morris tribunal. The Barr tribunal is dealing with the Abbeylara case. It is pejorative to say there are very serious allegations in this regard when there a tribunal is ongoing. People went to the tribunal and believed they did the business in the proper way. Does Dr. O'Mahony agree he is taking a very anti-Garda approach?

Dr. O’Mahony

I am being highly critical of the Garda, but not in regard to the use of lethal violence which is at the centre of the Abbeylara case. I am stressing here that there has been an accumulation of evidence in cases such as the Dean Reynolds case. The Dean Reynolds case is an excellent one because it was uncovered accidentally. In other cases it has been up to judges to point out that Garda behaviour around the use of evidence, disclosure and interrogations has been inadequate and unethical in some instances. We owe a debt to the Judiciary for pointing out these issues. It is pointing out symptoms, most of which are uncovered accidentally. It suggests an ongoing culture where gardaí are sometimes over-zealous in pursuing suspects.

It is worth emphasising that what we do not see is the kind of remedial action one would expect from a police force, given these scandals. Serious effort is not being put into human rights and civil liberties training within the training college. There are no monitoring systems. A Garda inspectorate is about to be launched but it is has taken an inordinately long time to arrive at this point. We have had to drag the current Garda complaints system through the mud and have the committee for the prevention of torture and other European bodies come here to tell us it is utterly inadequate before doing anything. There is a kind of deference to the Garda Síochána which has allowed it to escape taking the right kind of action and putting its own house in order. It is well capable of doing so and I would not like to suggest that the majority of gardaí are involved in this kind of thing. There are sufficient examples, however, to justify the kind of criticism I am making.

I welcome Dr. O'Mahony. He clearly sees a major social dimension in all of this in that if we are talking about intimidation of witnesses, we are also talking about intimidation of communities, and that essentially witnesses and victims live cheek by jowl with those who are conducting the intimidation. He referred to community policing and the fact that the police need to get their act together in terms of standards and so on. How does he think community policing would improve the situation in the community?

Dr. O’Mahony

Community policing is absolutely essential, not just because it is the only way one can build bridges to new immigrant communities and extremely deprived districts within cities but also because we have to take a multi-factorial approach to all these issues. We have to work on both a broad social level and a law enforcement level. Unfortunately the debate in this country is often of an "either/or" nature. Thus, one is either for tough law and order and punishment or for helping the deprived and working in a preventative way vis-à-vis crime. We need to adopt both approaches and cannot succeed without doing so. We need to realise it is not just a matter of social inclusion, which is a huge factor, and that it is no coincidence that drug abuse, organised crime, intimidation of all kinds and vandalism are in certain pockets or ghettos in our society.

Have we got the balance wrong?

Dr. O’Mahony

I think we have it entirely wrong. However, on one level this is a totally international phenomenon. Some have recently come up with the term relational neglect, by which they argue that modern industrial societies have reached a point where the failure to deal with human relations and to communicate with one another is as big a problem and represents just as significant a timebomb as the way in which we have neglected and polluted the environment, which will also lead to problems. There are all sorts of issues to be considered concerning the loss of the extended family, religious values and bonds within communities. We need to address these in respect of everybody and we also need to address social inclusion in the particularly disadvantaged areas.

Community policing is an essential part of this process. People have to accept the police. Generally, the Irish do, and the Garda is rightly proud of the manner in which it is accepted. It is also proud of its system of policing by consent and of its being unarmed. However, there are communities that do not accept the police force and where mutually hostile attitudes prevail. It is in these areas that the problems are arising. Unless we build bridges and break down the barriers to community policing-type approaches and involve local communities in setting the priorities and the agenda for local policing, we will not be able to build proper communities.

On lawlessness and organised criminal gangs, Dr. O'Mahony seems to think our local, indigenous gangs are poorly organised and not very competent. However, he is concerned that international gangs, which are growing in strength and which are involved in human trafficking, drugs, etc., represent the real threat. Does he have any proposals in respect of legislative or other changes in terms of organised criminal gangs?

Dr. O’Mahony

I do not. It is not something I thought much about. Countries such as Holland and Belgium have had immigrant gangs arriving from the east. In this context, it is true to say that tough conditions create tough people. When immigrant gangs enter countries in western Europe from places where the economic climate is unrecognisably worse and where there may have been strife and warfare, they bring with them the habits they developed in their home countries. They are extremely ruthless. This is the case in Belgium but we have yet to see it occur here. However, it is a possibility. There is no doubt that international gangs are looking at the possibilities for crime in Ireland. Through globalisation, the EU and the opening up of borders, their opportunities are increasing all the time.

Dr. O'Mahony has stated there is no scope for giving police witnesses' statements, even those video taped or made under oath, precedence over contradictory statements made in court and open to cross-examination. He is not saying he is opposed to it entirely. Rather, he is opposed to the giving of precedence to such statements. Does he see any eventuality where the original deposition of a witness to a garda would be allowed in court if the witness later recanted, decided to be hostile, or was seen to be such, or was not prepared to testify?

Dr. O’Mahony

I do not. While I am open to correction from those who know more about the law of evidence than I do - they are numerous - it seems that if one took this route one would be opening up the possibility of a new form of abuse because there would be pressure on the police to obtain video taped evidence or a statement at an early point, which they would know would be effective, regardless of what the witness said later on.

Should not every deposition made in the custody of a garda or in a Garda station be subject to video taping in any case?

Dr. O’Mahony

We supposedly have put that system in place. All interviews concerning serious accusations should be video taped. Unfortunately, this does not always work. For example, the Dean Lyons interviews were video taped and they show him admitting to crimes although his statements turned out to be totally false. A stronger protection than video tapes would be to have the solicitor or lawyer advocate for the accused during the interviews.

We will have two short questions from Deputies Paul McGrath and Senator Jim Walsh, after which we will deal with the Law Society of Ireland.

I welcome Dr. O'Mahony and was very interested to hear him talk about the low level of intimidation in reference to what happens in housing estates, etc., and to the intimidation of the elderly. In his previous response, he talked about community policing. Although most of the estates where such difficulties occur are local authority estates, Dr. O'Mahony did not mention local authorities. Should they have a role? Does he envisage constant consultation, and regulation to ensure consultation, between the Garda and the local authorities in policing such areas and ensuring intimidation does not take place?

Dr. O’Mahony

Absolutely. This is all about social partnership and inclusion. We now have some excellent examples of the embellishment and great improvement of flat complexes around Dublin and of giving local people something of which they can be proud. The willing involvement of the people, discussion and open dialogue between the police, local authorities and the communities are essential to the process.

Dr. O'Mahony mentioned the harmonisation of some of the legal systems in the EU and that this may present us with an opportunity to reconstruct our own system. He also implied that there may well be some interested parties who might not embrace this. Will he elaborate on this? Is he referring to the taking of a more inquisitorial approach?

Dr. O'Mahony also mentioned that the Law Reform Commission might not be the body to do the necessary analysis and research to bring forward recommendations in this area. Will he elaborate on this interesting point?

Dr. O’Mahony

The kind of changes suggested would be major, involve constitutional change and hugely be a matter of credibility. Unfortunately, as of now, the public is very much in the dark about the sort of things happening to the criminal justice system through our membership of the EU and the many processes going on there.

What are some of the changes Dr. O'Mahony would like to see Ireland embrace?

Dr. O’Mahony

I make a suggestion in my submission. People tend to exaggerate the difference between a civil law situation in continental countries which have the Napoleonic code and our common law traditions. We can extract from both a bottom line of civil liberty protections, which in a way is what the European charter attempts to do. We should not automatically assume that we cannot come up with a new way of doing things which would guarantee all of the freedoms we enjoy here.

Our knee-jerk, conservative reaction that any form of change is an attack on our traditions and the kind of privileges we have in our system is greatly exaggerated. Other European systems are also concerned about the presumption of innocence, due process, the jury system etc., but they may use different ways. There should be more openness to looking at a new way of doing things which would guarantee the bottom line of liberties and fundamental rights but modernise, codify and correct the obvious inefficiencies in the system.

I thank Dr. O'Mahony. We are very grateful to him for that stimulating presentation and discussion. Mr. Gerry Griffin is president of the Law Society of Ireland. I ask him to introduce his colleagues.

Mr. Gerry Griffin

I am accompanied by Mr. Patrick McGonagle, chairman of the criminal law committee of the Law Society; Mr. DaraRobinson, a member of the criminal law committee, and Ms Collette Carey, secretary to the criminal law committee which constitutes about 16 members based all around the country. Ironically, the first meeting since receiving the joint committee's letter of 7 November is to be held this afternoon. The full committee has not had the opportunity to consider everything.

I understand that. We are grateful that the society was able to put together a comprehensive presentation which it might present in a short format.

Mr. Griffin

I understand there are time pressures. We thank the joint committee for giving us the opportunity to address it on the matters outlined in its letter of 7 November 2003. Its brief is widely framed and merits a more deeply researched and detailed response than it has been possible to compile in the time permitted. However, the society will address the areas for discussion set out in the committee's letter.

On the issue of witness intimidation and current best practice in other jurisdictions, we are of the view that a responsible legal system is one that seeks to strike a balance between the rights of the accused, victims and witnesses. It is a hallmark of a civilised society and should be valued as such. The society notes the joint committee's concern about the issue of witness intimidation. While we share its view that this is not a widespread problem and that most trials are proceeding in a normal fashion, we note what appears to be a high level of public concern arising from the widely reported facts of a case recently before the courts. While it would not be appropriate to comment on individual cases, certain categories of potential problem can be identified under the general heading of witness intimidation.

The first of these is the problem of witnesses refusing to come forward to make statements to enable proceedings to commence. The society is of the view that it is unrealistic to expect to eradicate witness intimidation through the use of any one strategy or approach. In particular, it does not believe recourse to legislative measures can provide a solution to such a problem. Clearly, where such difficulties arise, there are cultural and social issues involved which require to be fully researched.

Another potential problem is that of witnesses who have made statements and subsequently either refuse to attend to give evidence or refuse to confirm that evidence in court due to suspected intimidation. The vast majority of witnesses appear to have little difficulty in performing the duty thrust upon them to sit in the witness box in open court and give their evidence. The public, in general, appears to appreciate the fundamental importance of the right to trial in open court and the right of an accused to face his or her accusers and have their evidence tested. The society is committed to the preservation of the right to trial by jury in open court in its fullest possible manifestation. In the absence of empirical evidence to suggest witness intimidation is either widespread or pervasive, the society is of the view that no legislation should be countenanced that would restrict that traditional right in any way.

A further problem is that of witnesses who conspire together to change their statements or refuse to confirm the contents thereof. Where evidence of such a course of conduct is present, criminal charges in the nature of contempt of court, perjury or conspiracy may lie. It is interesting to note that such charges are pending against certain of the witnesses involved in a recent case. Where there is evidence of such behaviour, it appears the criminal process has adequate tools and mechanisms necessary to respond.

Media and public reaction to even the suggestion that such a factor may have been present in a recent case appears to confirm the view that such behaviour is not perceived as being widespread. Even an alleged isolated incident retains its power to shock. While the society, on the basis of the foregoing, would not recommend legislative interference with trial procedures, it feels the common law offences of contempt and perjury require to be statutorily defined.

We also have the problem of witnesses who having made statements later recant them and contradict the contents thereof in evidence. No legislative change should be considered which would dilute the duty of the prosecution to produce all of the relevant evidence in a criminal trial. To permit a statement known to have been recanted to be tendered in evidence, in preference to the witness's later version, is undesirable in the extreme and could contribute to a serious miscarriage of justice, as appears to have happened in at least one other jurisdiction. On the issue of successful prosecutions, the society is of the view that a successful criminal prosecution is one which results in the conviction of a guilty party, or the acquittal of an innocent person.

A prime cause of delay in criminal trials is the simple fact of insufficient judicial resources. Reducing the time between indictment and trial would have the effect of reducing the opportunity for intimidation of witnesses. Furthermore, where video-link cases are concerned, cases frequently do not get on for trial because of the unavailability of courtrooms with video-link facilities. The society notes and supports the recommendation of the working group on the jurisdiction of the courts with regard to the extension of video-link facilities. Delays could be further reduced if a form of "case management" was introduced for criminal cases, as happens in the United Kingdom.

With regard to extending the admissibility of videotaped interviews as evidence in court, the society feels all interviews with accused persons should be videotaped and preserved for trial without exception. Videotaping of witnessed interviews does not present any great quality of justice issue.

On other changes in the criminal justice system and the impact on the right to jury trial, the society is opposed to any measure which would detract from the right to jury trial, widen the use of non-jury courts, or create specific offences triable other than before a judge and jury. The society notes the strong support for the right to jury trial evinced by the report of the working group on the jurisdiction of the courts.

On the matter of resourcing, operational and administrative issues relating to the courts system, the society recommends that considerable additional resources be allocated to the Courts Service for the appointment of additional judges and support staff. As at November 2003, there are eight High Court and Circuit Court judges serving on tribunals of inquiry and commissions. No later than last Tuesday, 25 November 2003, some 350 criminal cases were adjourned to March 2004 in Wexford District Court because there was a backlog of some 66 family law cases to be heard.

The society supports the recommendations of the report of the working group on the jurisdiction of the courts and is of the view that given sufficient resources, considerable improvements in the operational issues relating to the courts system could be achieved. The society also supports the initiative of the Courts Service in its proposal to build a criminal court complex in the general vicinity of the Four Courts complex in Dublin, along the style of the Laganside courts recently completed in Belfast. It is submitted that if such a criminal court complex could be erected it would considerably reduce if not totally obviate the possibility of witness intimidation within the confines of the court complex by virtue of the design of the building whereby witnesses have a different entrance to that of defendants on bail and-or their associates. It is also the Northern Ireland experience that there is increased availability of courts, increased efficiency and a greater number of court sittings compared with the corresponding former elderly buildings before the Laganside complex was incorporated.

The society is particularly impressed with the design features which cater for the separate needs of juries, witnesses, defendants, child witnesses, witnesses in fear and victims, together with their families. In this regard, the society wishes to compliment the President of the High Court, Mr. Justice Joseph Finnegan, for recently giving up part of his chambers in the Four Courts for a victim support room which has transpired to be very successful.

I offer to bring any member of the committee to the Four Courts to see at first hand the difficulties that are encountered and which are dealt with in more detail in the society's full submission. I recommend that the committee consider visiting the Laganside complex in Belfast, having first seen the situation in the Four Courts. It was mentioned earlier in other presentations and in particular by the Prison Service that the common areas where prisoners meet jurors, judges, witnesses, families, is wrong and should not be countenanced.

I thank Mr. Griffin for a very comprehensive presentation which addresses many of the issues that the society was asked to address and which I am sure will raise a number of questions. Deputy Paul McGrath is the vice-chairman of the Joint Oireachtas Committee on Justice, Equality, Defence and Women's Rights.

I too welcome Mr. Griffin and his colleagues from the Law Society and thank them for their presentation. Mr. Griffin referred in his presentation to a responsible legal system as being one that seeks to strike a balance between the rights of the accused, victims and witnesses. In this country victims very often feel they are the forgotten people. The joint committee heard a submission from Victim Support the other day which detailed the difficulties they experience. Is the Law Society of the opinion that perhaps there is a case for statutorial recognition of the rights of victims in order that they would be kept informed of the progress of cases so that a victim impact statement could be submitted before sentence is passed and victims could submit views before early release of offenders? Early release is a significant problem for many victims where people who have been convicted of crimes against them are released without their knowledge. What are the views of the Law Society on these issues?

Mr. Griffin

The Law Society has not considered that type of thing. My personal view is that the more support that Victim Support can be given, the better. I was actively involved in arranging the recent room for them in the Four Courts because up to the last 12 months, Victim Support and the victims and their families had literally nowhere to go in the Four Courts complex. I again pay full compliment to Mr. Justice Joseph Finnegan for giving up part of his chambers for them. I am aware that the Courts Service is due to make a submission to the committee shortly. I am a member of the building committee of the Courts Service board and I am aware that in respect of further court buildings and modifications of court buildings, that Victim Support will become a major factor and feature of all future court buildings.

Aside from court buildings, does Mr. Griffin see a role for Victim Support such as with regard to the release of prisoners? Does he think victims should be consulted and told about the release of prisoners?

Mr. Griffin

I cannot say what the views of the Law Society are because we have not had the opportunity to consider it. My personal view is that I am supportive of that position.

The question of perjury was mentioned in the statement. It stated that common law offences of perjury and contempt need to be statutorily defined. What does the society mean by this? It seems that the Director of Public Prosecutions may pursue perjury cases as a result of the collapse of cases recently. What is the Law Society's view? It seems to be totally at variance with the views of Dr. O'Mahony who stated that the State should be slow to charge a threatened person with perjury or making false statements under oath when it is unable to guarantee that person's freedom and safety. How does the Law Society regard the obvious conflict between what the two groups are saying?

Mr. Griffin

I suppose in one sense, the Law Society is talking about the perfect world in terms of the legal framework. I accept that there are difficulties leading up to this. The society's view is that the offences of perjury and contempt are under the old common law system and it believes they should be statutorily defined.

Is the society aware of perjury cases that have been taken? I cannot recall any.

Mr. Griffin

I cannot recall but perhaps Mr. Robinson or Mr. McGonagle may be of some assistance.

There have been very high profile cases of perjury committed before tribunals and the courts in this jurisdiction, yet across the water another very high profile person was sent to prison for four years. Has the society no recollection of any perjury case being taken? Is the society saying that the Director of Public Prosecutions should be pursuing the people concerned under the law of perjury?

Mr. Griffin

No, I am not saying that. The Law Society's view is that the offences of perjury and contempt which are currently common law offences should be put on a statutory footing, in other words, there should be a perjury Act and there should be contempt Act.

Does the society mean that we are restricted from taking action because we do not have that legislation?

Mr. Griffin

I do not think we have the full ammunition that is required under the headings of perjury and contempt. They are old common law offences which, to put it bluntly, do not cover modern situations.

Reference was made to the need for additional resources, in particular, more members of the Judiciary and support staff. The submission also outlined a system of better court management that is taking place in Britain. Within the present resources, in the society's view, what changes could make a significant difference? For example, in the British system there is management of cases. In the view of the Law Society, would that have beneficial effects in our system? The society mentions the need for videotaping of all taking of statements in Garda stations. How does the society envisage this operating?

Mr. Griffin

On the question of case management, I will ask Mr. Dara Robinson to reply in a moment. I wish to stress that in the opinion of the Law Society, the judicial resources are at breaking point. One of the difficulties that has arisen is that by virtue of the upsurge in serious crime, up to five High Court judges are now dealing with Central Criminal Court cases such as murder, rape and serious sexual offences. Two years ago it would have been rare to have two High Court judges hearing such cases. This has had a knock-on effect into all other areas of legal work where delays are increasing as an attempt is made to shorten delay time in the serious criminal matters. Considerable extra resources and more judges are required and the judges must have the support staff available. There is little or no point in appointing a judge because without the provision of support staff it is a waste of time. It is the view of the society that all statements of the accused from beginning to end should be videotaped in Garda stations. We see no quality of justice issues as to why the statements of witnesses should not also be videotaped. That is clearly an operational matter. Mr. Robinson has investigated the area of case management.

Mr. Dara Robinson

The case management question is one that was raised by the Fennelly committee, under the chairmanship of Mr. Justice Fennelly, on the working group of the jurisdiction of the courts and has been in operation for a number of years in the United Kingdom under what is termed there "by statute hearings for pleas and directions". In essence the case management strategy is geared to reducing the differences between the parties; shortening the length of trials; estimating the length of the trials; gauging the issues that are at hazard between the parties and in general to prepare cases for trial with the active intervention of the courts prior to the cases coming on for trial.

As Dr. O'Mahony said, this touches in a real way on the jury when hearing a case. Legal issues between parties in a criminal trial are determined in the absence of the jury. In a typical murder case, a jury will be sworn in, but then sent away while there are discussions between counsel and the judge. The jury will then hear a half day's evidence, only to be sent away again while there is more legal argument. It is incredibly disruptive, time-wasting and inefficient to the operation of a jury trial that many of these issues, which can be dealt with and determined prior to the trial, are determined during the trial. We have included in our submission the Fennelly group's material on the benefits of adopting such a system and a copy of the UK pleas and directions hearing form in order that the committee can familiarise itself with the advantages of this approach.

Can the Courts Service take the initiative itself and set up such a management system or does it require regulation and legislation?

Mr. Robinson

I do not think this needs to be supported by legislation. However, it needs the co-operation of the parties involved. Any party asking for the legislative authority for such a procedure will be told that there is none and it requires the co-operation of the parties, so it may ultimately need to be placed on a statutory basis.

I stress that my experience is confined to the courts in Dublin. However, there are informal pre-trial procedures and informal pleas and directions type hearings in the Dublin Circuit Court. They are not, in the Law Society's viewpoint, either sufficiently well-established or widespread to make a substantial contribution to the betterment of the system.

Will the initiative come from the Law Society or will it need the Minister for Justice, Equality and Law Reform to drive it?

Mr. Robinson

It will need to be driven by the courts eventually.

The general thrust of the Law Society's submission is that we do not need to drive a coach and four through the criminal justice system by making widespread legislative changes or undermining its existing principles. This committee is assuaging public opinion arising from a single incident, dare I say a single photograph. Is the Law Society aware of a growing trend in witness intimidation? Are we only dealing with a single incident, isolated to a certain part of the country?

Mr. Griffin

The simple answer is that there is no trend. As the Deputy correctly pointed out, the particular photograph in question has blown matters out of proportion. The current systems are good and we should not trick with them until they are shown to be bad. Tricking with them could lead to miscarriages of justice because changes may not be fully thought through in a calm and reasoned atmosphere.

Does Mr. Griffin agree that there is a great deal of hindsight in these calls for legislative change? This incident was so isolated as to be almost unforeseeable by the legislators.

Mr. Griffin

I can see how it might not have been foreseeable. However, as the Minister of State at the Department of Justice, Equality and Law Reform, Deputy O'Dea, mentioned on a recent programme, in the past ten years in the Limerick area there were 40 murder cases, of which 36 were solved. That is a 90% success rate, which by any international standard is very good. The Law Society does not believe there is a serious and sustainable problem with witness intimidation. There are certain areas, not just down the country but also in the Dublin area, where the Sicilian version of omertá applies. One does not go the police to make a complaint or to a solicitor to have a letter written to someone who has caused one upset. The matter is dealt with in another way. These are social issues which have to be dealt with, not necessarily by legislation.

There is no reference to the issue of bail in the Law Society's submission. Is the society conscious of any problems in the bail process? Bail is granted on the basis that a judge is satisfied that, among other matters, the accused will not interfere with witnesses? In this particular incident, witnesses were interfered with by third parties unknown to the judge and others involved in the case. Does the Law Society see a way in which the bail process can address the problem of witness interference by third parties?

Mr. Patrick McGonagle

From my experience and that of my colleagues in how the bail application system works, the Garda is extremely vigilant in giving evidence to the court if it has knowledge of possible or likely intimidation by the accused as this is a ground for refusing bail. There was a legislative change in the Bail Act 1997 which allowed hearsay evidence from a garda of possible intimidation or interference with a witness as a ground for refusal of bail.

I am not talking about the interference by the accused but by associates of the accused. I am speaking more in the context of gangland crime, where such a person is identified as a gang member and the Garda gives evidence that other members or associates of that gang were likely to intimidate witnesses. Could that impact on the bail issue and is this an area the Law Society believes need to be reformed?

Mr. McGonagle

The Law Society has not had a chance to formulate an opinion on that issue. However, this would have to be carefully thought out. An accused person at that stage of proceedings still has the presumption of innocence. It is not yet proved that the accused is guilty of the offence. To allow an inquiry to be extended further to guilt by association with others at that stage of the trial, would be an extremely dangerous road to go down.

If there is evidence of a conspiracy of which the accused is part, I have no doubt that if the Garda had that evidence, a prosecution would be brought in an appropriate case. The legal tools are there to deal with such matters.

On the videotaping of evidence, Dr. O'Mahony stated that the presence of a defendant's solicitor would make a difference in ensuring high standards of justice. Do any of the delegation members wish to comment on this?

Mr. Robinson

I certainly agree with Dr.O'Mahony's claim. The current position is that where a person is detained for questioning for the investigation of an offence and that person is a suspect, he or she is admitted access to a solicitor. This is defined in the relevant statutes as reasonable access, but what is reasonable is determined by the Garda. This has been endorsed, I say with some regret, by the superior courts. By and large, it would be more desirable if solicitors were entitled to be present throughout all questioning. However, they are not permitted to be present as a matter of fact and law. This raises the separate question of resources. Solicitors are in business as well as in practice.

In the United Kingdom under PACE - Police and Criminal Evidence Act 1984 - when institutionalised statutory access for solicitors was granted for the first time and the State committed to payment for solicitors for the period of access, rates of pay were set under the legal aid scheme which operated at the time, whereby solicitors could be paid per hour for all of the time they were present throughout a period of investigation and questioning of a suspect in a police station. There are a number of separate issues to be drawn in this regard but I would certainly answer the question in the affirmative: yes, I believe it is much more desirable that a solicitor be present to act as a safeguard of the suspect's rights at the Garda station at all times when a person is in detention for the purpose of investigation of a serious offence in which he or she is a suspect.

I thank Mr. Robinson. Deputies Costello, Deasy, Finian McGrath and Hoctor have offered.

The delegation mentioned a figure of 350 criminal cases as having been adjourned on 25 November to March 2004 in a single District Court area. How can such an extraordinary event happen, where people would have turned up, Garda services would have been provided as well as, probably, prisoner escort services and so on, that everything would be put on the long finger for four or five months? The system must be out of control if some better mechanism cannot be found.

The Houses of the Oireachtas recently enacted amending legislation, appointing two additional High Court judges. The witness said there is a shortage of judges to do the job. Is it not rather ludicrous that, after a Bill has been debated in both Houses and enacted with a view to the appointment of two additional judges, some enabling mechanism cannot be found? In terms of how the Department of Justice, Equality and Law Reform and, to some extent, the Courts Service, handle their business, is there not a great deal to be desired?

Mr. Griffin

I am not sure if the Deputy's comments are a question or a statement.

It sounds more like a statement but perhaps there is a part which Mr. Griffin can address. Deputy Costello referred to the number of judges available and the number of cases involved.

Mr. Griffin

I shall work backwards. If we increase the number of judges, we will not have the situation, as reported in last week's newspapers, of 350 criminal cases being deferred to next March.

Is the witness critical of the Minister for bringing forward the legislation referred to?

Mr. Griffin

No, I do not criticise any politician.

The delegation is present in a constructive manner.

Mr. Griffin

Yes, absolutely.

Constructive criticism is also expected.

Mr. Griffin

We need more judges, about which there is no doubt. As well as judges, we also need support staff. There is recent experience, unfortunately, of judges being appointed but having no courts in which to sit and no registrars with whom to sit. In effect, their appointments were delayed for a period of time until staff could be provided. Without the surrounding resources, there is no point in appointing judges. With regard to the 350 cases being deferred, that, in one sense, is slightly but not totally unusual; such situations happen.

In the particular example of the Wexford District Court, the sitting district justice for the district became ill and a replacement who had been sent down from Dublin discovered that there were 350 criminal cases and 66 family law cases listed. All of the family law cases had to take precedence. I have not been able to ascertain the exact nature of the criminal cases but, in a general mix of 350 criminal cases, there would be such minor matters as unlighted bicycles as well as heavy duty criminal charges on indictable matters.

I fully agree with the Deputy that the whole aspect of garda and prison officer resource time has to be taken into account. There is also a huge social cost, in terms of the victims, their families and friends as well as the accused persons and their families and friends. Clearly, more resources are needed.

In Mr. Griffin's statement, referring to intimidation, he said, "While we share the view of the joint committee that this is not a widespread problem. . . ". Some of us believe it is widespread and an endemic issue in some neighbourhoods. The witness said the solution was to put the common law offences of contempt and perjury on a statutory basis. In places such as Limerick there has been intimidation of gardaí and State prosecutors. I agree with Dr. O'Mahony's statement that at this point the State cannot guarantee the safety of people involved in cases.

I am surprised by the comment that the situation is being blown out of proportion. It is not just a matter of one case but, rather, a couple. I know people who were in the courtroom concerned about two months ago and have sat through hundreds of jury trials. They have told me they had never seen anything like the fear evident in the courtroom, yet the witness has said the matter has been blown out of proportion and that the solution is as he has suggested.

Mr. Griffin

No, I believe the Deputy has taken us up wrongly. What we are saying is that we are not aware of the levels of intimidation which would require that legislative changes be made. We are aware of situations to which the Deputy has referred in Limerick and other areas. Our position is, simply, that before we rush in with a knee-jerk reaction to what, effectively, has been hyped by the media and make legislative changes, we should stand back and make such changes very carefully. There have been numerous calls, for instance, for the introduction of the Canadian system, in which, as the joint committee will undoubtedly be aware, evidence can be accepted in court as full evidence where the witness recants. There is a very famous case, the Milgard case, of which the committee may also be aware and which, in effect, has become the Canadian system's equivalent of the Birmingham Six and Guildford Four cases. We must be very careful not to rush into a system, in a knee-jerk reaction, which might produce such a case.

One cannot have it both ways. Does the witness accept that there is widespread intimidation in some neighbourhoods such as in Limerick?

Mr. Griffin

There is some, undoubtedly.

It is happening all over the country. The Incorporated Law Society has offered just one solution - that of putting the common law offences referred to on a statutory basis. Is that the——

Mr. Griffin

That is not our position. The Deputy should read our full submission, in its totality. We have said there are a number of issues and that the starting point, where no legislative changes can make a difference, is at the social and community levels.

On the statement that "no knee-jerk reaction should be entertained," Dr. O'Mahony has indicated that the State cannot guarantee the safety of people in the cases concerned. Is the witness saying there should be no knee-jerk reaction when we have reached a point where the State cannot guarantee - I agree with Dr. O'Mahony - people's safety? Should this not be taken very seriously?

Mr. Griffin

I shall quote from our submission: "The Society is of the view that it is unrealistic to expect to eradicate witness intimidation through the use of any one strategy or approach".

The point has been well made.

I want to develop the point which, I believe, is an essential one. I disagree strongly with the suggestion that there is not a rising trend in intimidation. From my experience, as one who has worked in a disadvantaged area for 20 years, I have seen whole communities intimidated such as in flats complexes. That is an issue and a reality to which we must wake up. While I do not agree very often with Deputy Deasy, I believe he is correct in this instance. There is also a high percentage of unreported intimidation in society.

With regard to the reference to 90% of crimes being solved, there is not sufficient focus on crime prevention. One immediately thinks of theFitzgerald family in Limerick who were threatened for weeks on end but the individual concerned was left on his own. There was no support. It is inaccurate to say there is no rising trend in intimidation because it is a reality for about 30% of the population. I believe the figure is as high as this.

I thank the Deputy. We will take that as a valued comment.

I welcome the members of the Incorporated Law Society. Our concern is with crime prevention; that is the reason the joint committee arranged these hearings.

In the case of a first-time offender in a public order offence, drug possession or, perhaps, damage to property, it is relatively easy to engage a solicitor to represent him or her in court on the day. Is it not too easy? In an attempt to reform the judicial system would it not be better to give the delegation's colleagues a back seat position in the courtroom, leaving the defendant responsible, accountable and answerable to the court and the people, in general? Very often, the accused does not say a word but is represented by a solicitor. I often wonder if we reduce the learning process that results from the offence. Such persons are more likely to reoffend if they have not been challenged to answer for their offence and to be accountable for it.

Mr. Robinson

Many judges welcome the assistance of solicitors in articulating the background issues that arise in criminal prosecutions on behalf of accused persons who, statistically, are more likely to be inarticulate, less likely to be able to express themselves and more likely to require professional assistance to put forward their positions. That more than 95% of cases result in guilty pleas is often forgotten, although it is a fundamental reality of our criminal justice system. Many of the cases in question are those which have been mentioned by the Deputy, such as minor public order cases, minor criminal damages cases and minor drugs possession cases. I imagine that the Law Society would endorse my view that when first offenders come before a court, it is incumbent on the court to look on them as first offenders and as persons who may never again come before the courts. Such persons must be given proper legal representation. Another fundamental aspect of this matter is that a person whose property has been damaged will not usually want to confront the offender across a courtroom in a hostile situation. The availability of legal representation in a courtroom is not only a constitutional entitlement but is also, for many different reasons, absolutely in the best interests of the accused, the accuser and society.

I do not necessarily agree. I do not underestimate the ability of some offenders to articulate their cases. Such people may have a poor learning experience because of their representation. I understand that the legal profession has a job to do, but I feel that if we are to reform the system it would be far better if offenders were obliged to report in the courtroom. I do not suggest that the victim should do so, but I am certain that offenders should be accountable to society in this way.

I will allow Senator Jim Walsh to speak, before allowing Mr. Aylward or Dr.O'Mahony to respond.

I find that the recommendations are very minimalist. The tools of the legal profession are sufficient to deal with witnesses who perjure themselves, but they do not deal with the defendants who escape scot free as a consequence. That is the real issue. The difficulty of bringing to justice those who have committed crimes has been mentioned. I would like to concentrate on the right to a jury trial. The Law Society has strongly argued that other specific offences which are triable other than before a judge and jury should not be created. Dr. O'Mahony said that juries can be unrepresentative. I am aware of cases of entire sections of society being excluded from jury service because solicitors on one side or the other have fears about how they are likely to jump. Would the Law Society repeal the prevention of terrorism Acts? Would it disband the Special Criminal Court, which was established for specific purposes? I assume that the society would not go that far. Does it agree that certain criminals pose as serious a threat to society, particularly the communities in which they operate, as any of the terrorist groups of the past?

Mr. Griffin

It would be fair to say that all criminals pose a serious threat to society, some more serious than others. The Offences against the State Act provides for the Director of Public Prosecutions to certify that the ordinary courts - judge and jury courts - are not fit and proper to deal with certain matters. That is why the Special Criminal Court was established. The Law Society follows the line of the Fennelly report. A judge or jury of one's peers should determine one's guilt or innocence in ordinary cases. Our submission stated that "the society is of the view that a successful criminal prosecution is one which results in the conviction of a guilty party, or the acquittal of an innocent person".

I do not necessarily agree with the view expressed by Dr. O'Mahony in respect of juries. The recent Limerick case showed that juries come from very large panels. An attempt was made to put together a jury from some 500 persons who were called. Such a problem does not exist throughout the country. It may be a social issue. Dr. O'Mahony referred to the fact that certain classes are excluded. It is right that lawyers, by their very nature, are excluded from sitting on juries. Anyone involved in the administration of justice is excluded. The Law Society cannot organise the classes of people who appear before juries. There was a time, in my lifetime, when only rate-payers could sit on juries.

We do not have much time left. I invite Dr. O'Mahony and Mr. Aylward to respond.

Dr. O’Mahony

Can I make just two or three points? We should remember that very little crime is dealt with properly by the criminal justice system. Studies conducted by the Home Office in the UK suggest that only about 7% of serious crime is cleared up by the police and only about 3% of all serious crime leads to a conviction. The Irish figures would not be very different. These statistics put a very different slant on the usefulness of law enforcement approaches. It is obvious that such approaches are essential and that we have to make them as effective as possible. Crime is furtive and secretive by its nature. Most people who commit crime do not think of the chances of being caught, as such chances are very small.

A Deputy referred to the concept of restorative justice, without mentioning the word. This concept involves making young offenders, in particular, aware of their responsibilities. They are helped to realise the consequences of their actions. The Children Act 2001 provided for family conferencing and other restorative approaches in our system. One of the reasons we are unbalanced at present is because we have not properly resourced that Act. We have not given it the support it needs. We have not provided the probation and welfare officers, etc., to initiate it properly.

Senator Tuffy asked about prisoner escorts. The Irish Prison Service hopes to continue to provide prison staff to escort prisoners. We will privatise prisoner escorts only if we cannot work out a reasonable compromise with our staff. Our staff are refusing to use cellular vans to move prisoners to and from court. If we were able to use such vans to a greater extent, we would be able to do that job more efficiently. The increased use of CCTV courtroom links, which was examined by a group chaired by Mrs. Justice Denham, would reduce the number of routine appearances in court.

The Irish Prison Service has produced voluminous prison statistics in the past, but they were not of much relevance to policy-makers because they were out of date by many years. We hope to produce more timely statistics to inform policy-makers and legislators.

I thank the delegations from the Law Society and the Irish Prison Service, as well as Dr. Paul O'Mahony, for appearing before the joint committee today. The committee will take on board the comments of our visitors. We will find the comments very useful as we continue our work. If the delegations wish to make any additional points, they should address them to the Oireachtas committee secretariat. We will meet representatives of the Bar Council and the Irish Human Rights Commission on Tuesday, 2 December 2003. I thank everyone who attended this meeting and those who watched it on TG4. I look forward to tomorrow's meeting.

The joint committee adjourned at 11.30 a.m. until 9.30 a.m. on Tuesday, 2 December 2003.