I thank the Chair for inviting me before the committee and committee members for their attendance here today. As I have a fairly lengthy speaking note, I do not wish to spend all of the available time going through it word for word. I am happy to deal with individual topics and very interested to hear even the initial reactions of members.
We are three years into the life of this Dáil. The likelihood is slim that there will be more than one criminal justice statute of a major kind passed by this Dáil during its remaining time. We might as well be truthful and honest in saying that if there are significant reforms of our criminal justice law that must be dealt with, they should be dealt with in the context of the Bill before the Dáil rather than be long-fingered to the extent that they will not be dealt with at all. I, therefore, welcome this opportunity to appear before the committee to talk in part about my proposals but also to invite members of the committee, in particular the Opposition spokespersons as well as Government members, to consider whether there are issues I am not dealing with but that occur to them as matters that could be dealt with in the context of the passage of this legislation through the Houses.
I have finalised a range of proposed amendments to the Bill that I am about to bring to Government in the coming week. As soon as they are approved for drafting by the Government, I will make the heads available to the committee. In the meantime, I will take this opportunity to brief the committee on the main features of those amendments. I will start with the area of organised crime, an issue on which this committee spent considerable time in recent months. As the committee will recall, I have spoken previously about the real problems in criminalising membership of a criminal gang, particularly because gang relationships are fluid, complex and more a state of mind than an objective matter of fact in many cases. Nevertheless, I informed the committee that I was examining provisions contained in UN and EU instruments on this subject with a view to bringing forward proposals to enable us to give effect to those instruments. I also undertook to examine a Canadian provision in this respect to see if it would be a useful addition to our Statute Book.
As I indicated, I am bringing forward a proposal to provide for the transposition into Irish law of our obligations under international instruments. I am also proposing a provision on participation in criminal organisations based on the Canadian model. However, I emphasise that I am attaching a caution to this latter proposal by expressing my view to the committee that it will not be the panacea to deal with membership of criminal gangs. The difficulties I previously indicated will continue and proving the offence will be difficult. On balance, however, I am of the view that I should propose to put this offence into our law on the basis that there is an argument for having it on the Statute Book, even if, as the Canadian experience suggests, the occasions on which it can be successfully prosecuted may be comparatively rare.
The proposed offence will be based on section 467.11 of the Criminal Code of Canada but is also compatible with the definitions in the international instruments I mentioned. The offence is one of contributing to or participating in an activity of a criminal organisation, not to the commission by a criminal organisation of a serious offence, although the intention behind the contribution must be to enhance the ability of or to facilitate the organisation to commit a serious offence. It will not be necessary to prove the commission of a specific offence. The offence is to be punishable by up to five years in prison. I am also proposing that committing an offence for the benefit of a criminal organisation will be punishable by up to ten years' imprisonment, such as stealing a car for a bank-robbing gang. If it is done for an organised crime body, it could attract a more serious penalty of up to ten years in prison. This is based on section 467.12 of the Canadian criminal code.
To give effect to the conspiracy aspect of Article 2 of the European Union joint action of 2 July 1998 and Article 5 of the UN Convention Against Transnational Organised Crime, I am providing for the offence of conspiracy to commit a serious offence. Although conspiracy is already a common law offence here, the offence does not cover conspiracies in Ireland to commit an act abroad, as is required by the international conventions.
Regarding drug offences and mandatory minimum sentences, I am proposing some small changes to strengthen the provision on the ten year mandatory minimum penalty for drug trafficking that was inserted into the Misuse of Drugs Act 1997 by the Criminal Justice Act 1999. Sentences of ten years or more have been handed down by the courts, albeit to a limited extent. The courts are dealing with drug trafficking offences in the manner in which the Legislature hoped they would. Figures supplied by the Courts Service show that in 2004 some 76 cases were before the courts and sentences of ten or more years were handed down in 16 of those 76 cases. These instances are not as rare as some may think.
It is clear from a study commissioned by the Department that the courts are taking account of the provisions regarding the ten year sentence. Where they reduce that sentence, they do so in accordance with the terms of the provisions, that is, where the specific circumstances of the offence or of the person require it. In addition, I am satisfied that the provisions have a benefit in terms of guilty pleas and the co-operation the Garda Síochána receives from the offender in the hope of having the ten year sentence reduced. However, some improvements could be made to the provisions to strengthen their effect. In particular, the courts often decide that the individual circumstances of a person who is a mere mule in the trafficking operation merit a lesser sentence. Tolerant treatment of such persons by the courts can be an unintended encouragement for the recruitment of such people by the traffickers and could have an unintended effect on the operation of drug trafficking generally. I propose to provide a sentencing guideline for the courts to the effect that in considering whether to reduce a sentence the court should have regard to whether the public interest in the protection of the community against the activities of drug traffickers will be compromised by the imposition of a sentence of less than ten years. Internationally, there has been a tendency to ask vulnerable people to traffic drugs and they are told that they will be treated lightly if caught. The godfathers effectively use pawns to achieve their ends. That people will be treated leniently for doing seriously damaging things to our society is not a good impression to give out abroad .
The 1999 Act allows a court's discretion not to apply the ten year mandatory sentence where it would be unjust to impose it given the circumstances of the offence and the offender. To ensure the courts do not consider that they are obliged by this provision to apply this consideration to persons who are previously convicted drug traffickers or persons who are habitual drug traffickers, I am proposing a guideline to make it clear that this is not the case. There should not be a presumption that one must deviate from the ten year standard when dealing with repeat offenders.
In deciding whether to exercise the discretion to impose a sentence of less than ten years, the courts can have regard to a number of matters, including whether the person materially assisted in the investigation of the offence. As many offenders are fearful of retaliation from drug traffickers if they give information to the Garda, I propose that the prosecution can apply to the court to have information, regarding assistance given to gardaí, heard in camera.
The sentence for trafficking in drugs with a value of €13,000 or more is life imprisonment and the mandatory minimum provided for is ten years. The sentence for the offence of importation of drugs is up to 14 years imprisonment. I consider that the importation offence should also be punishable by up to life imprisonment where the value of drugs is €13,000 or more and that it should also attract the mandatory minimum ten year sentence.
In addition, I am proposing to address an issue that has arisen following two recent decisions of the Circuit Criminal Court to direct an acquittal on the basis that the prosecution had not established that the defendant knew the value of the controlled drugs exceeded €13,000. While the Director of Public Prosecutions has the option of appealing the first decision I consider it prudent, in light of the second decision, to provide clarity on the issue by way of a legislative amendment to the effect that the prosecution need not prove the defendant had knowledge of the value or was reckless in this regard. Guilt or innocence will be decided by an objective test of the value of the goods rather than the subjective state of mind of the trafficker.
I am also providing new offences relating to the supply of drugs to prisons. This provision fulfils a commitment in An Agreed Programme for Government to provide specifically for an offence of supply of drugs to prisons. In the near future I will publish the prison rules dealing with mandatory testing of prisoners. I hope to have a conference of the prison authorities to set in train a new regime in our prisons that will be more concentrated on ensuring that drugs are not present in our prisons.
I also provide for the registration of convicted drug dealers on the drug offenders register with the Garda Síochána in accordance with the commitment in An Agreed Programme for Government. The proposal is based on the same principles as the sex offenders register and will enable the movement of convicted drug dealers to be recorded in a similar fashion, covering change of address and movement in and out of the State.
I address the problem raised at this committee by some Opposition spokespersons of assaults and obstruction of personnel engaged in providing emergency services, including problems with regard to assaults in hospitals, particularly in accident and emergency departments. I propose to expand the definition of peace officers in section 19 of the Criminal Justice (Public Order) Act 1994 which already covers assault and obstruction of members of An Garda Síochána, Defence Forces or prison officers in the execution of their duty to include members of the fire brigade and ambulance personnel. In addition I propose to insert new subsections in section 19 to cover threats, assaults, obstruction and impeding of doctors, nurses and other health service workers in a hospital or its vicinity.
With regard to anti-social behaviour orders, ASBOs, I am extremely concerned about the impact of anti-social behaviour in our communities and know many members of this committee share that concern. In many incidences vulnerable people, particularly the elderly, can be subjected to serious nuisance and forms of harassment which can cause great distress to the people concerned.
The State has a responsibility under Article 40.3 of the Constitution to protect and vindicate the life, person, good name and property rights of citizens against unjust attacks. This is mirrored in Article 8 of the European Convention on Human Rights. The European Court of Human Rights has not been slow to find against states which have not upheld the enjoyment of this right because of tolerance of serious nuisance type behaviour.
Enforcement of the criminal law is one way in which the State can stand up for and protect the public against unacceptable behaviour but it may not be enough on its own. The more affluent and assertive in society can use the civil law to protect their rights by hiring a solicitor to secure injunctive relief against offending behaviour. That recourse is in theory available to all but in practice it is not within the reach of those who cannot afford to pay for that type of litigation. I believe this is unacceptable and the State should step in and offer protection; in this respect I propose that gardaí should be able to apply to the courts by way of civil procedure, not criminal procedure, for an anti-social behaviour order which would prohibit any person from behaving in a seriously anti-social way. We are not discussing criminalising people. I stress the principle behind anti-social behaviour orders is not new. It is similar to the extremely old power to bind people over to keep the peace and be of good behaviour. That power has been vested in common law judges since the mists of time.
Although my proposal for anti-social behaviour orders is similar to the concept in the United Kingdom, it is there that any direct comparisons end. My proposals are framed to take into account many of the issues raised in the public debate during the year on the subject. It will incorporate important safeguards to ensure that orders can be fairly and reasonably used for the benefit of the good of the community as a whole. An important overriding explicit principle will be that an ASBO will be a last and not a first resort. In addition separate provisions are to apply to adults and children. The provisions for children will be fully integrated into the Children Act 2001 and will attract all the safeguards of that Act. Those proposals will provide for anti-social behaviour orders for children in two categories, those aged 14 years and over and those between ten and 14 years of age.
Important features of the proposal are that the definition of anti-social behaviour order is not the definition used in the United Kingdom but one which is designed to ensure that the orders are used to meet the real and serious needs of communities. First, I am aware that in the United Kingdom one person was subjected to an anti-social behaviour order because a pet dog was in the habit of fouling the pavement. That is not the type of behaviour we are dealing with here.
Second, only gardaí can make an application to court for an ASBO and the applying garda will have to be of the rank of superintendent. It is not a question as was stated at public meetings I attended that local gardaí will lean on people in their communities and throw their weight around. It will be a reflective process.
Third, strict Garda Síochána guidelines on the appropriate use of anti-social behaviour orders will be drawn up by the Commissioner, approved by the Minister and laid before both Houses of the Oireachtas before the powers can be deployed. Fourth, to emphasise that the application to a court for an ASBO is to be a last resort, there will be an explicit duty to formally caution respondents to cease the offending behaviour.
Guidelines for the courts will also be provided in the legislation on the issue of orders. These guidelines will highlight the importance of the principle of minimum interference, the reasonableness of the complaint, the likelihood of recurrence and the number of occasions on which the offending behaviour is alleged to have occurred in the past. The court will be able to grant legal aid to respondents, even though the procedure is a civil one, in appropriate cases. Unlike the United Kingdom, the duration of the orders will be for a maximum, rather than a minimum, of two years. Penalties for the breach of an order will be considerably less than in the United Kingdom, with the maximum possibility being six months' imprisonment.
There will be specific provisions for children, which are being integrated into the Children Act. First, before an application for an ASBO can be contemplated, a series of steps must be followed. A child who is engaging in anti-social behaviour must be given a series of street warnings. If the behaviour continues, the child and his or her parents will be invited to a meeting with the local superintendent, who will draw up a good behaviour contract, to be signed by the parents and child. The behaviour of the child will be monitored locally and, if necessary, the contract can be renewed. If the child continues to behave anti-socially, he or she will normally be referred to the Garda diversion programme. If a problem remains after all of the above steps have been taken, the issue of an application to the courts for an ASBO will then arise. Needless to say, the parents and the child will be obliged to turn up in court, wherever they are identifiable or available. If a child breaches an order, it is only then that matter of the commission of an offence is relevant and all of the provisions of the Children Act, including the possibility of a second admission to a Garda diversion programme, would then come into play. Anti-social behaviour orders relating to children will be subject to the restrictions of the Children Act regarding publicity only to the extent required to make the order effective.
I propose to provide for a separate type of order for children under the age of 14 years who may be engaging in anti-social behaviour. These orders will be called good behaviour orders. The approach will be similar to that adopted for older groups but all of the preliminary steps will have to be taken in order that an application is a last resort. However, the terms of the order will be different in that the court will be empowered to bind the parents over to ensure that the child stops his or her offending behaviour. The court will also be in a position to seek to address the issues that arise for parents who lack the basic skills to deal with their child by making it a condition of the binding over order that the parents undertake a parenting course, engage with an appropriate authority or agency or undergo treatment for addiction problems, if necessary. If the court order fails, the court will be in a position to warn the parents that a breach will render the child subject to a criminal prosecution and thereafter all the provisions of the Children Act will come into play, including the possibility of another admission to the Garda diversion programme.
I am providing for a number of new statutory sentencing powers, the purpose of which is to provide a real and practical incentive to offenders to deal with issues giving rise to their offending and to stay away from crime. One of these new powers will give a court the ability to partially suspend sentences, subject to certain conditions. In the past we have had experimentation by judges who built reviews into the custodial sentences they imposed. However, the Court of Criminal Appeal and the superior courts disapproved of this practice because it was effectively a court reviewing its own decisions. As a way around that issue, we are proposing that the courts should be given a strong statutory basis for partially suspended sentences. If, for example, a person is convicted of robbery, it should be possible, with judicial discretion, to give that person a sentence of two years' imprisonment plus an additional three years, which would not be served if he or she keeps the peace and is of good behaviour for a specific period of time. This would provide a genuine incentive to reform and to stay out of trouble. The conditions governing partially suspended sentences include a standard requirement that offenders keep the peace and be of good behaviour during the period of imprisonment. However, the court will also be able to make them subject to other conditions, for example, that they undergo drug or substance abuse treatment, rehabilitation courses for sex offenders or that a person agrees to be subject to the supervision of the probation and welfare service.
This is important because there is nothing at present in law to compel or encourage, for example, a sex offender to participate in a therapy programme while in custody. He or she may choose to participate but a radical incentive is not available. As a result, the situation pertains, as the chairman of the probation and welfare service, Mr. Gordon Holmes, has repeatedly called to my attention, that there is no incentivised programme in place in order that offenders in custody may rehabilitate themselves or participate in rehabilitation programmes. In principle, the length of time served in prison does not make a difference. That is wrong. Rather than the courts following the course of reviewing sentences after a period of time, which has been disapproved of, a structured basis should require that people with custodial sentences participate in these programmes in the hope that a substantial portion of their sentences will be suspended.
I am also proposing that the courts may, in certain circumstances, impose a fine but defer the custodial sentence in order to assess whether the offender, during the term of the deferment, stayed away from crime and addressed the issues giving rise to his or her behaviour. I am particularly concerned that some members of the District Court Bench, for whom I have great respect, regard as essential a tough approach to violence on the streets and other matters. Members of the Garda Síochána and the Bench find themselves in the position that, after gardaí and prosecutors have gone to a lot of trouble to put together a case that goes before the court, sentences are simply deferred for a year to determine how an offender will behave and the accused walks out of court without any apparent consequences to pleading or being found guilty. A problem will obviously occur if part of a sentence is immediately imposed, while the remainder is deferred. In practical terms, this can only be done with the consent of the accused because he or she must be able to appeal a judgment. I cannot remove the right of appeal. By imposing a monetary penalty when passing judgment but deferring the question of a custodial sentence in order to determine whether the person will behave and has learned his or her lesson, District Court judges in particular will be provided with a powerful weapon to ensure people do not leave the court while laughing up their sleeves, which can be frustrating to victims and witnesses who perceive the offenders as going unpunished. The hope is that the offender will reform over the ensuing year.
I also intend to provide a framework that will allow the courts to impose restrictions on movement and electronic monitoring orders instead of imprisonment for certain minor offences. A restriction on movement order may impose such restrictions as the court deems fit, including a requirement that the offender be in a specified place at certain times or not be in a specified place at other times. In addition, where a court has imposed a restriction on movement, it may also impose an order for electronic monitoring of the offender in the community. We have previously discussed this matter. In Britain, it is a costly service and I am at present making statutory provision for it but not guaranteeing that I will attempt to roll it out nationwide because the resources involved in electronic monitoring may be better spent on youth diversion projects. It is of doubtful economic value compared with the use of resources in other ways to deal with these types of offenders.
I am proposing to raise the age of criminal responsibility from seven to ten years of age. Although the age of 12 years is provided for in the Children Act 2001, this provision is unlikely to be brought into operation in the foreseeable future. I have spoken to the Minister of State at the Department of Health and Children, Deputy Brian Lenihan, at length on this subject. We believe that the Children Act was unduly optimistic in claiming that no child could commit a criminal offence under the age of 12 years. The law to that effect, which has been passed by the Oireachtas, has not been commenced. Raising the age from seven to ten years is a reasonable step, but the use of reason comes into play around that time in a child's development. It could seriously scandalise public perceptions of criminal justice if 11 or 12 year old rapists went unpunished, were told their offences were bad behaviour and society did nothing about it, particularly now that 11 year old children are getting pregnant, as we read about during the summer. We could have a serious collapse of social confidence in our criminal justice system, especially now that children mature younger and are engaged in sexual behaviour, if all sexual activity up to the age of 12 years was, in every circumstance, regarded as being incapable of being criminal. I know there are two views on that. Deputy Costello's party indicated grave reservations, if not outright opposition, to it, but that is something we can discuss at a later stage.
I also propose to insert a new part in the Bill to deal with a series of provisions relating to the firearms Acts 1925 to 2000. The new provisions will concern the certification for possession, use and carriage of firearms and ammunition; allow the Minister for Justice, Equality and Law Reform to deem certain firearms as restricted and allow for an increase in fines and penalties relating to offences generally under the firearms Acts; and the creation of mandatory minimum sentences for certain firearms offences, including some new offences concerning the modification of a firearm. I am thinking of sawn-off shotguns. The provisions will also introduce a right of appeal to the District Court from firearms decisions made by the Garda Síochána, a new power for the Commissioner to make guidelines or guidance notes for the uniform administration of the Act and a provision for the authorisation of rifle and pistol clubs and shooting ranges. It will also contain a provision allowing the Minister to make a scheme to provide for payment for certain surrendered firearms in limited circumstances. It will also make provision allowing for a period where firearms may be surrendered to members of the Garda Síochána.
I also propose to insert a new part in the Bill to deal with a series of provisions amending the explosives Acts. The new provisions will concern the updating of fines and penalties already in those Acts and there will also be provisions on fireworks. I draw the committee's attention to the proposal to establish a new offence of lighting fireworks in public places or attacking persons or property with a firework. It will also be an offence for a person to possess a firework for the purpose of selling it to another or otherwise supplying it without an import licence. I also intend to provide for an increase in the penalties for the misuse of fireworks. I initiated a consultation programme on fireworks which drew a limited response from the public.
I also want to introduce some technical amendments to the Bill during its passage through the Oireachtas. These will include an amendment to deal with the issues arising from the judgment in the case of Dylan Creaven v. the Criminal Assets Bureau, which held that a search warrant could only be issued by a District Court judge if he or she were physically sitting in a court in the district to which he or she had been assigned.
I thank the committee for listening to me today. I am bringing forward proposals but I also want to ask members of the committee for their views on amendments. Any member is entitled to table an amendment. If there are ideas they believe should be thought through and drafted properly and if they want to bounce them off the relevant authorities in advance of tabling them, I extend an invitation to them to consider that and to consider whether I may be missing things here which could be an improvement.
