JOINT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN’S RIGHTS debate -
Tuesday, 28 Mar 2006

Criminal Justice Bill 2004: Presentations.

Chairman

I welcome everyone to the meeting, the purpose of which is to hear presentations from interest groups. The first of the latter is the Irish Council for Civil Liberties. I welcome Ms Tanya Ward, Mr. John Kennedy and Mr. Conor Power. I invite them to make a brief presentation and we will then take questions from members.

Before we begin, I draw attention to the fact that members of the committee have absolute privilege but that this privilege does not apply to witnesses appearing before the committee.

Mr. Conor Power

On behalf the Irish Council for Civil Liberties, I thank the committee for inviting us to make a presentation on the Criminal Justice Bill 2004, which is very important. There are so many aspects to the Bill that it is difficult to present our views properly on many of the sections. Therefore, we will prioritise. Mr. Kennedy and Ms Ward will be available to answer questions later. We are aware that other groups will be addressing the committee on different matters. We will focus on five main areas of concern to us.

We do not have available to us a final copy of the amendments. It seems the drafting process is continuing apace. The amendments we have seen in recent days will involve the making of substantial changes to the Bill, as published.

We welcome the opportunity to address the committee on this matter. The first of the five matters we will address relates to search warrants in respect of arrestable offences and it will be dealt with by Mr. John Kennedy.

Mr. John Kennedy

I will go through our submission in sequential order and highlight points made therein.

In respect of search warrants, we are concerned initially with section 5(1) of the Bill, which provides that a District Court judge may issue a search warrant when satisfied with information on oath from a member of the Garda Síochána not below the rank of sergeant that there are reasonable grounds for suspecting evidence of or relating to the commission of any arrestable offence. Section 5(2) provides that a member of the Garda Síochána not below the rank of superintendent may issue a search warrant in certain circumstances if he or she is satisfied that there are reasonable grounds for suspecting that evidence of or relating to the commission of an arrestable offence is to be found in any place. Section 5(3) states that a search warrant should not be issued on this basis unless it is necessary and where it is impractical to apply to a judge for a search warrant because of delays.

When one examines search warrants, one discovers that there are a large number of statutes which create powers of entry and search for gardaí in respect of a variety of different purposes. Most of these relate to specific criminal offences such as, for example, the power to search premises where someone is suspected of handling stolen goods under the Larceny Act 1916 and subsequent larceny Acts up to and including the Larceny Act 1990 and the power to search premises in respect of theft and fraud offences under the Criminal Justice (Theft and Fraud Offences) Act 2001.

We are concerned that the provisions in the Bill, particularly those in section 5(2), give Garda superintendents the power to issue search warrants in certain circumstances. We are concerned that this power may be open to abuse. Judicial scrutiny is vital for protecting against arbitrary interference with protective rights. Other legislation referring to search warrants includes important safeguards with regard to this possible abuse. For example, under section 8 of the Criminal Justice (Drug Trafficking) Act 1996, a Garda superintendent may issue a warrant for the purpose of investigating drugs offences where, it is important to note, it is impractical to apply to a District Court judge or a peace commissioner. In these circumstances, it must be shown that the investigating officer tried to secure a search warrant from a District Court judge or a peace commissioner and the warrant is only valid in these circumstances for 24 hours.

The European Court of Human Rights takes a very strict approach to the issuing of search warrants without judicial supervision. There must be very strict limits on such powers and, in each case, there must be relevant and substantive reasons before an infringement on one's right to privacy is allowed. In our paper, we refer to a decision of the European Court of Human Rights in Camenzindv. Switzerland where it was held that the power of a search warrant was valid and did not violate a citizen’s right under Article 8 of the European Convention on Human Rights. The court found in favour of Switzerland because of the important safeguards in its legislation. These safeguards include the fact that the search in question could only be carried out by specifically trained officers, that the search could not be executed on particular days — such as Sundays or public holidays — that, because the search commenced, the investigating officer was obliged to produce evidence of his identity and explain the purpose of the search and the fact that a search record had to be produced. None of these safeguards is present in the Bill, as published.

We understand that judges' movements and contact details are made available to the Garda and that there is no difficulty in this regard. We have seen no credible and convincing research from the Minister for Justice, Equality and Law Reform to suggest that the Garda's current powers are inadequate. The ICCL questions whether the Minister has considered other less restrictive alternatives and, in the absence of such considerations, submits that Ireland will not meet its obligations under the European Convention of Human Rights. According to the Irish Human Rights Commission, if members of the Garda Síochána experience difficulty in contacting District Court judges, a procedure exists that allows them to discuss this matter with the President of the High Court and that makes provision for appropriate remedial action to be taken. The ICCL proposes that sections 5(1), (2) and (3) be deleted.

The proposed extension of powers of detention is of particular concern to the ICCL. Section 8 of the Criminal Justice Bill 2004 amends section 4 of the Criminal Justice Act 1984 to provide for increased detention for all arrestable offences. Section 8 amends section 4(3) of the 1984 Act to provide for the possibility of a further 12-hour detention period on the approval of an officer not below the rank of chief superintendent if he or she believes such further detention is necessary for the proper investigation of an offence. A person may thus be detained for up to 24 hours but in fact may be detained for longer. Provision is made in the 1984 Act for a rest period of up to eight hours to be included between midnight and 8 a.m., which means that a person could, in practice, be detained for 32 hours.

The right to liberty protects an individual from arbitrary detention and is provided for under Article 40.4.1° and Article 5 of the European Convention on Human Rights. Article 5.3 of the convention makes it clear that an arrested person should be promptly brought before a judge or other official authorised to exercise judicial power and is entitled to a trial within a reasonable period. We believe the change is excessive and dangerous in that it applies to all persons arrested for arrestable offences. Provisions in other Acts will coexist with this increased power of detention.

The Minister has produced no credible and convincing research to suggest that the Garda's current powers are inadequate, which point has been made by the Human Rights Commission. We are concerned that in the absence of judicial supervision, the power to hold someone for 24 hours may result in detainees being routinely detained for that entire period. In practice, a period of detention could extend to 32 hours, including the rest period. If it the extension is necessary, which we question, it is important to provide for a judicial element to the detention period by requiring matters to be brought before a District Court or Circuit Court judge.

Garda stations do not currently have the custody facilities to allow for extended periods of questioning. For example, Dundalk Garda station does not have video recording facilities. We recommend the deletion of the provisions in the proposed section 8 on the extension of detention periods.

Mr. Power

The third aspect of our submission covers the admissibility of certain witness statements, the proposals in respect of which arose out of a number of criminal trials that have taken place in the State in recent years. The Minister made it clear that he wanted to make certain statements admissible and, as such, has included the provisions of section 15 in the Bill. The latter provides that a witness statement may be admitted to court in certain circumstances, even where the witness is not available for cross-examination. For example, if a witness refuses to give evidence, denies making a statement or provides evidence which is materially inconsistent with a statement, the statement may still be admitted. While one can understand the annoyance caused by witnesses who later retract their statements and appreciate the difficulty such behaviour causes for prosecutions, particularly of serious offences, the response is, perhaps, disproportionate.

A fundamental shift appears to be taking place in our criminal law, which is currently based on an adversarial system in which a witness for the prosecution should be available to the defence for cross-examination. The danger with section 15 is that a witness statement will be admitted in circumstances where the witness is not available for cross-examination. Not only will statements such as those made in a certain trial last year be admitted but the setting up of certain individuals may be facilitated. If a person wanted to plant a statement and was cunning and coy enough to go about doing so, it might be possible to slip certain things into a trial.

The Irish Council for Civil Liberties has two concerns with regard to section 15. First, it tends to breach the adversarial due process of law as guaranteed by the Constitution and, second, it may breach Article 6.3 of the European Convention on Human Rights, which has been transposed into Irish law. When the legislation is enacted, there will be a need to interpret it in accordance with the convention, which specifically provides that an accused has the right to examine or have examined witnesses against him and to obtain an examination of witnesses on his or her behalf. We have very serious concerns regarding this case. It has also come to our attention that there seems to be a Supreme Court decision on a related matter which, for example, relates to the evidence of a Garda superintendent that a person is a member of an illegal organisation. The question here is whether a garda can be compelled to give evidence where that is based on a privilege. That would be a material decision and I urge the House to await that decision before passing this measure on certain witness statements. The Irish Council for Civil Liberties has such concerns that it considers the section should either be deleted or seriously redrafted. Even in terms of the wording, section 15 allows a statement to be admitted if the witness confirms or it is proved that the witness made it. However, if the witness confirms it was made, it seems we have confirmation from a person who does not want to take the stand and testify to that. That is precisely the type of prejudice that can be caused to an accused, which is a disproportionate response in all the circumstances. We urge the committee seriously to reconsider that section.

The fourth section on which we wish to comment is the organised crime section. This is set out in our submission as well. These parts of the Bill seem to have come, almost verbatim, from the Canadian criminal code, which I have examined. It seems very similar to that code in material respects. No civil liberties organisation would have any truck with organised crime. We are not here to defend organised crime in any way. However, we are concerned that when Bills on criminal justice are being enacted civil liberties for ordinary citizens and respect for human rights are not lost just because there is a perceived threat from organised crime. It is incumbent on this committee to ensure that legislation passed by the House respects minimum human rights standards and to ensure that in reforming our law we do not get rid of all our liberties.

There are specific issues in regard to organised crime. One is duplication. In two of the main sections dealing with organised crime there is a repetition. The basic offence involving organised crime seems to be a repetition of the offence of conspiracy, provided for in the common law for years. While having another offence to deal with serious crimes is not necessarily a bad thing, when it is vague and drafted in a way that does not improve the law, it is an unnecessary duplication.

The second aspect is the definition of organised crime. The section goes on to discuss a structured group. In fact, many of the definitions in the statute are not definitions at all. They are described in a negative way and focus, for example, on what the prosecution does not have to prove. In regard to the structured group, the definition says one thing and then defines the group negatively by saying what it is not. The Irish Council for Civil Liberties submits that this is bad law making because if offences are being created, there is a need for precision and judicial certainty when these matters go to trial.

I mentioned at the outset that this law seems to be based on the Canadian criminal code. There are issues with the Canadian criminal code that have been raised in the British Colombia courts to do with the vagueness of the definition, which seems to be used here in a very similar way to the Canadian statute. It seems the committee should await the determination of those proceedings to see if these laws would withstand judicial scrutiny here in Ireland. One of the main issues in this regard is vagueness. The concerns of the Canadian courts arising out of very similar provisions were that organised crime is defined so broadly that people on the periphery of a group might unknowingly be committing a crime. Again, this is a fundamental change in our law. It may be suggested that some people might be wilfully blind to the fact that they are committing an offence. There may well be objective grounds where the Garda and the prosecuting authorities can prove an offence, but the danger with the type of loose drafting in this section is that people will be brought into the net at the periphery of groups who ought not to be. That is a very serious danger.

Chairman

The presentation is fine but, because of the tightness of our schedule this afternoon, it is now eating into the time for questions.

Mr. Power

I will be brief. Our main concerns in regard to organised crime are that the new offences are very vague and potentially breach constitutional standards. The courts have already struck down vague laws that enact vague offences as a breach of the due process rights in the Constitution.

The final area I wish to address is the issue of anti-social behaviour orders. There appears to be a serious departure from the heads of the Bill in the most recent draft version because head 29(a) defined certain behaviour as harassment or significant or persistent alarm, distress, fear or intimidation. The final version refers to significant or persistent impairment of people's use or enjoyment of their property. However, head 29(a) also referred to people's lives. There appears to be a move away from this, although I am not sure what the nature of the final amendments will be. I draw the committee's attention to the apparent reversal of that position in the amendments we have seen, which is a serious development.

Our main concern regarding anti-social behaviour orders is their vagueness. There is effectively a vague and generalised definition of anti-social behaviour when it should be particularised. In contrast, in the area of family law, barring and safety orders are very specific in their outcome. The difficulty with anti-social behaviour orders, or civil orders, as they are called, is that they are based on the views of gardaí, albeit senior officers. However, they are still based on individual views. It appears that the order a court could impose could be vague. This is dangerous because it is a blurring of the distinction between civil and criminal law.

These are effectively civil matters and if a civil order is made, a person becomes liable to a criminal offence if he or she breaches that order. It is, therefore, incumbent on any law that introduces such a regime to ensure that a court order which imposes a civil regime is clearly and precisely defined; otherwise the subject of that order could be committing a crime when it was not envisaged by the court that he or she would do so. The person is entitled to know, with a large degree of specificity, what he or she can or cannot do under a regime that blurs the distinction between civil and criminal law.

Although the definition of anti-social behaviour is slightly different in the UK, it has been proven that the most commonly used anti-social behaviour orders are used against children, with whom this section does not deal, and more vulnerable people, such as those who should be receiving psychiatric help, particularly given the closure of many psychiatric hospitals. Psychiatric hospitals should, in certain circumstances, be closed but this does not mean that when people behave differently, they should become the subject of this type of civil regulation.

The absence of prior consultation before the introduction of anti-social behaviour orders is a matter of serious concern to the Irish Council for Civil Liberties. We urge the committee to reconsider substantially the nature of anti-social behaviour orders and the manner in which they are being introduced. I will conclude because I do not wish to decrease further the amount of time available for questions.

Chairman

I thank Mr. Power. As time is short, would members accept the banking of questions? Members will ask specific questions to which our guests may respond.

Deputy J. O’Keeffe

I understand we have debated issues such as search warrants and increased powers of detention in the past. I will not discuss anti-social behaviour because my views on this issue are well known. I regard anti-social behaviour orders as a minor part of the approach that should be taken in respect of anti-social behaviour.

In respect of the admissibility of certain witness statements, the induced amnesia shown by certain witnesses in court is a serious problem. Is the delegation in a position to suggest a better approach? I understand its perspective and how it is obliged highlight concerns — particularly in the context of the Constitution and the European Convention on Human Rights — relating to civil liberties. This induced amnesia on the part of certain witnesses is a real problem to which a solution must be found.

My second question concerns organised crime, a matter that was debated by the committee. The committee examined how organised crime is dealt with in Canada, to which the delegation referred, including the province of Quebec. Can our guests suggest some way of adding an offence to the criminal justice system that is sufficiently tight to deal with the concerns they voiced?

Deputy Costello

I thank the delegation from the Irish Council for Civil Liberties for its presentation, which, as always, was thorough and well researched.

As Deputy Jim O'Keeffe noted, we discussed the issue of search warrants on a previous occasion. The extension of the detention period in the 1984 Act is not from 12 hours to 24 or 32, but from six hours to 24 or 32. Does the ICCL believe that, if audio and visual recording of interviews were made mandatory and incorporated in the legislation, it would satisfy the need for protections?

The problem which arises for us, as legislators, on the issue of witness statements is that these days they are commonly retracted, which makes it difficult to obtain convictions in what appear to be cut and dried cases. While one can point to existing offences similar to the ones set out in respect of organised crime, there is still a difficulty in securing convictions.

The Minister's proposals for ASBOs appear to be drawn out and almost tedious by comparison with similar proposals made in Britain. A child would almost have entered adulthood by the time every stage of an ASBO process had been gone through. The proposals are very much contingent on the provision of resources to implement the provisions of the Children Act 2001. Does the ICCL have any suggestions to make on the tying together of ASBOs and the 2001 Act?

An issue which has not been mentioned is that of mandatory sentencing and the restructuring of the Misuse of Drugs Act to accommodate the new €13,000 figure. A provision in respect of mandatory sentencing will also be in place with regard to firearms offences and the importation of drugs into prisons. What is the ICCL view on the issue?

Deputy Ó Snodaigh

Does the ICCL have any concerns about the change in the age of criminal responsibility? Has the council considered the matter and the relevant amendments? Mr. Power mentioned the experience in British Columbia of amendments similar to the ones tabled here on organised crime and membership of criminal organisations. What is the basis of the specific challenge to the Canadian legislation? Does mandatory sentencing work in any other jurisdiction? Does the ICCL have further information on its operation elsewhere?

Mr. Power

On the admissibility of witness statements, I understand there were some very high profile cases last year in which witness statements were withdrawn. The Garda has very grave concerns about this phenomenon as the offences involved were very serious. However, I do not understand the problem to be widespread beyond the cases in question. I have yet to see evidence that statements are being withdrawn day in, day out in the courts. With the greatest of respect and without minimising the importance of the witness statements in the cases set out, it is not the prevalent problem suggested. While it is very serious when it happens and one could argue that one incident is serious, it is not sensible to rush to change the law by abandoning core principles of civil liberty, the common law and constitutional justice because of one or two cases. I do not accept the premise on which the change is based.

Deputies asked what solutions the ICCL would suggest instead. The decision for Parliament is whether to allow the admissibility of witness statements where the person making the statement is refusing to testify. We say it should not be allowed. The Irish Council for Civil Liberties believes the risks outweigh the benefits. If the Houses of Parliament are to allow it, we strongly urge that human rights safeguards be provided. For example, the judge should direct the jury in a case specifically on the issue of a witness statement admitted in such circumstances, saying the witness did not appear in court and was not tested on the statement and that this may cause prejudice to the accused. That warning should be given in every case. There are some safeguards in the proposed section 15 but not this one. As a minimum, it should be provided. Ideally, this should not happen. It is too much of a change arising from a specific case last year.

Last week we saw the amendments relating to organised crime. I do not have a wording that might satisfy my concerns. To some extent what we are saying is in agreement with the Human Rights Commission's submission, that some of it is not necessary because the vagueness in conspiracy crimes could have been dealt with by a specific focus on how the offence of conspiracy could be tightened. That might be a better approach rather than creating a new vague offence.

With regard to the duplication argument, one of the offences created states a person who commits a serious offence for the benefit of or at the direction of another group is guilty of an offence. The difficulty is that somebody has already committed a serious offence and because he or she has committed a serious offence in a particular circumstance, he or she is guilty of a second offence. It may well be that he or she should be guilty of a second offence. However, for most persons concerned about organised crime, the concern is not that there is a crime to fit what a person has done but centres on the apprehension of the criminals, the gathering of proof and bringing it into court. They are the real concerns in regard to organised crime.

To address the issue of vagueness again, the case about which I am talking is a 2005 Supreme Court of British Columbia case, R.v. Accused No. 1 and Accused No. 2. The website citation is BCSE 1727. I can make the details available to the committee afterwards. It is based on the Canadian criminal code which, unlike ours, is one long code covering all criminal law matters. The section at risk was section 467. If one goes to the Canadian criminal code, there are provisions that are remarkably similar to the organised crime measures now proposed in the Bill. The court was specifically concerned about the word “activity” which also appears in the new section 69 as proposed in amendment No. 74, in which it is stated a criminal organisation is defined as being a structured group that has, as its main purpose or main activity, the commission or facilitation of one or more serious offences. This phrase appears verbatim in the Canadian criminal code. Section 467.1 (1) defines a criminal organisation. It is a slightly different definition but contains the phrase “has as one of its main purposes or main activities the facilitation or commission of one or more serious offences”. It was the word “activities” that caused the Supreme Court of British Columbia some difficulty in that people at the periphery of the group could be brought into the net. That is the specific concern.

Mr. Kennedy

In regard to detention, it is important to remember and put in context that what we are talking about is a case where somebody has been arrested and not been charged. His or her liberty is denied before he or she is charged. What we must look to is the 1984 Criminal Justice Act. It was a watershed Act. Until that point the presumption of innocence was very real. To be denied one's liberty in a Garda station before one was charged was a grave step. That was taken one step further and it is now proposed to take it even further.

The Supreme Court has been very clear in its view of the video recording of interviews. If a law was enacted to compel Garda stations to provide for video monitoring, it would be insufficient to protect a person's rights. A period of 32 hours in custody is too long.

Ms Tanya Ward

We will not comment on amending the Children Act because the Irish Council for Civil Liberties is also a member of the Irish Youth Justice Alliance, representatives of which will shortly appear before the committee. I will add to some of the points made by Mr. Power and Mr. Kennedy. If people are to be detained for a longer period, we recommend that the Garda seek judicial approval. In addition, not only should the interview be video-taped, the person in custody should also have access to a lawyer. Such a right is commonly granted in the United States but not here. It is vital to have access to a lawyer when one is being questioned.

In respect of organised crime and mandatory sentencing, research findings, particularly from the United States, reveal that heightening fear of detection is the most effective way to address criminal behaviour. The introduction of new offences and mandatory sentencing do not appear to make a difference in this regard. While many jump on the bandwagon and call for the creation of new offences and longer sentences, in practice, such a policy does not make a difference.

We must invest more heavily in the Garda by expanding its numbers and introducing extensive training programmes in such areas as investigation techniques. It is important to examine what the Garda has available to it. When did gardaí undergo training in new techniques? We have spoken to many individuals in the criminal justice system who have told us the Garda should put under surveillance people it knows to be members of criminal gangs. Such individuals are then less likely to break the law. The problem lies in the fact that the Garda does not have the resources to keep them under surveillance.

Is there any other point with which we have not dealt?

Deputy Costello

I have a question about mandatory sentencing.

Ms Ward

Research findings show that it does deter criminal behaviour.

Deputy Costello

Ms Ward opposes it.

Chairman

Many criminologists oppose it.

I thank Ms Ward, Mr. Kennedy and Mr. Power for coming before the committee. If anything else comes to mind in the next few weeks while we are discussing the Bill, members of the delegation should forward it to the clerk to the committee who will pass it on to members who can contact them if they have any concerns they wish to raise.

Sitting suspended at 2.43 p.m. and resumed at 2.45 p.m.

Chairman

I welcome the representatives of the Irish Youth Justice Alliance. The name on the delegate's name cards is the Children's Rights Alliance. However, this was only an accommodation address and the organisation's proper title is the Irish Youth Justice Alliance. Ms Tanya Ward is joined by Ms Catherine Ghent, Dr. Ursula Kilkelly, Ms Jillian van Turnhout, Ms Maria Corbett and Ms Maria Cadwell, all of whom are very welcome. There are 30 minutes in this slot. If the presentation is short, any extra information can be included in answers to questions put by members.

Ms Jillian van Turnhout

I thank the Chairman for the clarification of the name of our organisation. We are grateful to the joint committee for providing us with the opportunity to make this presentation. I am chief executive of the Children's Rights Alliance which brings together 80 non-governmental organisations concerned with the rights and welfare of children. I speak to the committee as a representative of the Irish Youth Justice Alliance, a coalition concerned with reform of the youth justice system. The coalition comprises the Children's Rights Alliance, the Irish Council for Civil Liberties, the Jesuit Centre for Faith and Justice and the Irish Penal Reform Trust, with leading legal practitioners, academics and other professionals working in the area.

With me are Dr. Ursula Kilkelly of the Faculty of Law, UCC; Ms Maria Corbett of the Children's Rights Alliance; Mr. Catherine Ghent, a solicitor who works daily in the Children Court, and Ms Louise Cadwell of Catholic Youth Care. Ms Ward was in attendance for the earlier part of the meeting with the ICCL. Ms Cadwell works on the ground in diversion projects and it would be useful for her experience to be communicated to the committee. Our presentation will focus on the proposed changes to the Children Act 2001 through the Criminal Justice Bill 2004. Time will only allow us to touch briefly on our concerns, but we have supplied the committee with a detailed submission and would welcome ongoing dialogue with members.

The Criminal Justice Bill amends the Children Act substantially. While some of the amendments simplify the Act's implementation and are welcome, others roll back on commitments made in the original legislation and weaken the protections afforded to children in conflict with the law. Despite the passage of five years since its enactment, key provisions of the Act are not yet in force. As such, its potential is not being fulfilled. While the principle that detention shall be a measure of last resort informs the Act, the courts have few sanctioning alternatives to detaining children, as only two of the ten community sanctions provided for in the legislation have been commenced.

The alliance is very concerned that, rather than fully implementing the Act and providing the necessary resources for prevention, early intervention and rehabilitative services, the Government has decided to introduce new measures which will complicate and weaken the legislation. Rather than ensuring the coherence of the youth justice system, the Government's proposals will result in unnecessary interventions in the lives of young people, especially those who have engaged in anti-social rather than criminal behaviour. The case for the amendments has not been made. Many of them are incompatible with our obligations under the Convention on the Rights of the Child, the European Convention on Human Rights and best international practice.

We question whether there is sufficient capacity within the system to ensure full implementation of the Act, let alone the additional measures proposed. Our key concerns relate to the age of criminal responsibility, anti-social behaviour orders, amendments to the Garda diversion programme and a weakening of safeguards for children in detention. We ask the committee to give these problematic proposals detailed consideration, reflect on why they are being proposed and question whether their introduction will have a positive impact on the lives of our children and young people.

The Criminal Justice Bill rolls back on commitments made in the Children Act on foot of recommendations made in several reports and by committees since the 1960s to raise the age of criminal responsibility to 12 years. While this part of the Act has never been implemented, the Bill proposes to reduce the age to ten years for children charged with serious crimes. While children of ten or 11 years who commit serious crimes require intervention in their lives and measures must be taken to protect society from any risk they pose, the appropriate action in such cases is not to prosecute, try and detain but to address the very complex and serious problems which give rise to their violent behaviour. We ask the committee to consider what will be achieved in bringing a child of ten years to court and detaining him or her with older teenagers without treatment, therapy or re-education. The process may punish but it will not prevent the child from reoffending or harming others. Such children need the support of specially trained professionals to address their violent and/or sexualised behaviour and to engage them in rehabilitative and therapeutic programmes which address their complex needs and prevent them from reoffending. We call on the committee to abandon the proposed amendment and set the age of criminal responsibility at 12 years for all children.

In addition, the rule ofdoli incapax has been abolished. The Children Acts set in law the principle that a child between 12 and 14 years is incapable of committing an offence because he or she does not have the capacity to know that the act or omission concerned is wrong. As a rebuttal presumption, this provision has the effect of raising the age of criminal responsibility to 14 years. However, it is now proposed to abolish this principle altogether and replace it with a requirement that the Director of Public Prosecutions must consent or take action with respect to charges against children under 14 years of age. This gives power to the Director of Public Prosecutions to prosecute a child, rather than reserving to the Children Court the matter of whether the child had capacity to commit the offence in question. We urge the committee to delete this amendment as we believe it will result in more children being prosecuted and weaken safeguards for them as there is no statutory obligation placed on the Director of Public Prosecutions to act in the best interests of the child or uphold the principles of youth justice in the fulfilment of his duties in this area.

Dr. Ursula Kilkelly

We have not referred to individual sections of the Bill in our submission. We have referred to them in more detail in our full written submission but because of the ever changing numbering of the sections we have endeavoured to provide the committee with an overview and will provide it with an updated submission with those sections included when they have been settled.

The opposition of the Irish Youth Justice Alliance and others to anti-social behaviour orders or ASBOs is very well documented. We believe our clear articulation of the likely and disproportionately negative effect of ASBOs on the lives of young people led the Minister to develop an alternative model for those under 18 years. Nevertheless, we remain opposed to their application in any form to children and young people. They are a crude instrument which, at best, penalise youthful behaviour and, at worst, fail to address the needs of young people who are at risk and vulnerable.

In addition, the alliance finds one aspect of the proposed model particularly worrying. Under the Bill, section 93 of the Children Act which prevents the media from publishing or broadcasting details of a child's identity has been amended in order that in certain circumstances it will be possible to remove reporting restrictions when an ASBO has been made. This involves the weakening of the internationally recognised right to privacy which children currently enjoy before the Children Court and which serves to protect them from the harm publicity can cause in the light of their vulnerability and youth. If the committee rejects our recommendation to abandon the introduction of ASBOs in respect of children and young people in their entirety, we strongly urge it to reject the proposal to remove the child's right to privacy and protection of its identity in this context.

The diversion programme which has been operated by the Garda Síochána since 1963 is one of the uniquely successful elements of the Irish system. Research shows that juvenile liaison officers have had an 87% success rate in diverting children and young people from further offending. Despite this success, the Bill proposes to make three fundamental changes to the programme. The first relates to the admissibility of evidence of involvement in the programme in court and subsequent proceedings. Under the programme, any child admitted must accept responsibility for his or her behaviour and agree to be cautioned by a JLO. The State, on the other hand, agrees not to prosecute in respect of that offence. This is a fundamentalquid pro quo on which the diversion programme and any diversion scheme which operates according to international standards is based. The approach encourages young people to enter the programme as they are guaranteed that the offence in respect of which they have been admitted will not be held against them. The Bill, however, proposes to amend the Children Act by making it possible to introduce evidence as to the child’s involvement in the programme in subsequent criminal proceedings. Contrary to the current position, where the court is not entitled to hear any evidence relating to the child’s involvement in the programme or any of the offences which gave rise to his or her involvement, the amendment will give the prosecution discretion to inform the court, not only of the child’s involvement in the programme and the offences which gave rise to that involvement, but also, importantly, of his or her acceptance of responsibility for his or her behaviour. The amendment will allow information on offences with which the child has neither been charged nor convicted to be admitted in evidence in subsequent criminal proceedings. This also runs contrary to the child’s rights to due process. We also believe the amendment has the potential to undermine the entire basis of the diversion programme. The case has not been made for interfering with such a successful programme in this way.

I will now address the proposals for good behaviour contracts. The proposed introduction of anti-social behaviour orders has resulted in two further amendments, the first of which I will now address. It is proposed to introduce what appears to be a parallel diversion scheme which will act as a precursor to an application for an anti-social behaviour order. The mechanism will involve meetings and the drawing up and supervision of good behaviour contracts. However, it practically duplicates the diversion programme currently run by the Garda under the Children Act in its entirety and as such, it is difficult to discern its added value. The Irish Youth Justice Alliance believes that introducing a second diversion scheme is unnecessary, that such a scheme will be unworkable and overcomplicate the work of the Garda. For these reasons, we ask the committee to reject these proposals.

The Bill proposes to extend the diversion programme to include anti-social behaviour, a measure which could have a significant net widening effect, largely due to the introduction of anti-social behaviour orders in so far as children alleged to have engaged in anti-social behaviour are to be diverted to the programme before an application for an anti-social behaviour order can be made. Nonetheless, the extension of the programme to include behaviour not criminal in nature involves a widening of Garda powers which will allow formal intervention in the lives of children and young people who have not committed a criminal offence.

In addition, the Bill proposes to give the Garda Síochána the power to admit children as young as ten years to the diversion programme, even when the age of criminal responsibility is raised to 12. This runs contrary to best practice which advises against formal interventions for any behaviour that does not harm the child or others.

I will address a number of the proposals relating to arrangements for children in detention, some of which are to be welcomed but others are deeply worrying. The Children Act provides for the establishment of an inspectorate for children detention schools but this provision has never been brought into force. The Bill proposes to replace the inspectorate with a person authorised by the Minister for Justice, Equality and Law Reform and to reduce the frequency of inspections from one every six months to once a year. This weakening of the inspectorate is unacceptable. The circumstances of children in detention need regular, expert supervision by an independent, permanent body. The alliance strongly recommends that this proposal be deleted and that the original inspectorate be established as a matter of priority.

An amendment requiring the courts to take into account a child's educational needs when deciding on the period of detention would allow judges to hand down longer sentences to children with particular educational needs. This appears to break from the constitutional principle of proportionality in sentencing, whereby the punishment must fit the crime. It appears to allow for longer sentences to be handed down to those who have suffered educational disadvantage. The rationale behind this proposal is unclear and the proposal should be deleted.

The alliance is concerned that the Bill proposes to remove section 88 from the Children Act which deals with the duty to detain children on remand separately from those detained following conviction. This represents a rowing back on the commitment in the Act to keep such children separate in order to protect them from being contaminated by those serving a sentence.

We want to address the failure to make provision for the immediate closure of St. Patrick's Institution. It is to be welcomed that the Bill addresses an anomaly in the Children Act, whereby children under and over 16 years were treated differently for the purposes of detention. The Bill provides for the detention of all children under 18 years in children detention schools and gathers the responsibility for all children in detention within the remit of one Department, a development welcomed by the alliance. While facilities for those under 16 years are established, individuals between the ages of 16 and 17 are detained in adult prisons. The majority of prisoners in this age group are detained in St. Patrick's Institution, in which prisoners aged between 16 and 21 years are detained.

St. Patrick's Institution has been heavily criticised by the Inspector for Prisons and the Council of Europe committee on the prevention of torture for detaining children alongside adults and its failure to provide those detained with an opportunity to engage in any meaningful activity or education, giving rise to problems of bullying and abuse. It is neither appropriate nor acceptable that children under 18 should be detained in St. Patrick's Institution. While the proposals clearly envisage the use of St. Patrick's as an interim measure, the alliance is seriously concerned that making specific provision for it in the Act will secure its medium-term future. It will delay, rather than accelerate, the removal of 16 and 17 year olds to children detention schools. For this reason, we call on the committee to remove express reference in the Bill to St. Patrick's Institution.

On behalf of the alliance, I thank the committee for taking the time to engage with us this afternoon. My colleagues and I will be happy to answer any questions members of the committee may wish to pose.

Chairman

Members of the committee are not as well resourced as the Government and depend to a great extent on the help of interested parties in drafting amendments to legislation. It would be helpful if the delegation could assist the committee in this regard. If the delegation drafts amendments, as suggested in its presentation, and gives them to the clerk to the committee, he will pass them on to members who may then use them as a basis for tabling formal amendments to the Bill. This would be helpful and would ensure that the measures sought by the delegation are at least discussed by the committee. Questions from members will be banked.

Deputy J. O’Keeffe

This submission is helpful because, to some degree and as the Chairman noted, much of this material has been pitchforked on to us in an enormous flood. I accept that I am mixing metaphors, but it is difficult to see the wood for the trees. In respect of the age of criminal responsibility, why is a provision in the Children Act that was never invoked now being changed? Why is it being changed before it is even brought into operation?

Chairman

That is a question for the Minister.

Deputy J. O’Keeffe

I will ask the Minister the same question but it is always good to know the answer in advance. Reference was made to the community sanctions in the Children Act, two of which are in operation and eight of which are not. Which sanctions are in operation and which sanctions should be in operation? I strongly support the use of detention as a last resort, particularly in respect of children.

I am a major supporter of the junior liaison officer, JLO, scheme. Is there any reason to admit evidence subsequently in circumstances in which it cannot currently be admitted? This is a fundamental aspect in the context of children entering the scheme. What is the thinking behind this change?

Deputy Costello

I welcome the delegation from the Irish Youth Justice Alliance and thank it for its presentation. We would welcome any significant amendments prepared by the delegation.

It appears that the alliance believes the anti-social behaviour order section in the legislation is unnecessary and would be detrimental to children at risk and that there is a better legislation in place, namely, the Children Act 2001, the provisions of which would meet the needs in this area more effectively but which have never been implemented or resourced. Is this an accurate summary of the alliance's position?

Dr. Kilkelly

Yes.

Deputy Costello

I am sure the gentlemen in the public gallery will indicate why they believe the position to be otherwise.

The manner in which anti-social behaviour orders are being put in place and the number of steps in the procedure for obtaining them are convoluted and bureaucratic. It appears it will take a very long time to implement anti-social behaviour orders. I would imagine that most of the youngsters would be adults by the time anti-social behaviour orders are put in place. Is the alliance challenging the proposal to include 16 and 17 year olds in St. Patrick's Institution and seeking the closure thereof? Is it suggesting that St. Patrick's should be closed down entirely?

Deputy Ó Snodaigh

What is the age of criminal responsibility in the main EU states? Is there any information available on the age of criminal responsibility in these countries and is Ireland out of step with them? I possess information relating to Great Britain. Like Deputy Costello, I presume that the alliance wants to see the Children Act implemented in full before, as suggested by the Minister in his amendments, we move beyond it. We should implement the Children Act in full and then examine whether a problem that could not be addressed by it remains.

Chairman

Do the reasons that children are referred to the junior liaison programme differ from those relating to anti-social behaviour orders?

Ms van Turnhout

The delegation will work on drafting amendments to be sent to the committee on behalf of the Irish Youth Justice Alliance. Ms Catherine Ghent will address the issue of the age of criminal responsibility.

Ms Catherine Ghent

In response to Deputy Jim O'Keeffe, I have no idea why the age of criminal responsibility is being changed. It is wrong to lower the age of criminal responsibility to ten years and abolish the principle ofdoli incapax. As a solicitor, I am involved in both welfare and criminal cases. It is clear to anyone who works in the Children Court on a daily basis that the primary concerns, particularly of very young children, are welfare-based. This is the reason they come before the courts. It is easy for legislators to suggest that particular ages that should apply but they do not possess professional training in respect of the capacity of children at those ages.

Deputy J. O’Keeffe

My understanding is that the age of criminal responsibility will be 12, except in cases of murder, rape and manslaughter.

Ms Ghent

Yes.

Deputy J. O’Keeffe

The age will, therefore, be 12, except for——

Ms Ghent

The age is currently seven.

Deputy J. O’Keeffe

Is it correct to say that under the Children Act and this Bill and the amendments to it, 12 will be the age of criminal responsibility, except in cases of murder, rape and manslaughter?

Ms Ghent

Yes.

Deputy J. O’Keeffe

Therefore, 12 will be the age of criminal responsibility.

Ms Ghent

Yes, except in the cases mentioned by the Deputy.

Deputy Costello

There are no exceptions under the 2001 Act?

Ms Ghent

No.

Deputy J. O’Keeffe

Does Ms Ghent have a difficulty with those exceptions?

Ms Ghent

We would have difficulties with both the exceptions and with children between the ages of 12 and 14. We regard this as a serious rowing back. The alliance made the point that the protection provided for in the process ofdoli incapax has the potential to raise the age to 14.

The background of the children who come before the Children Court is particularly relevant. We find when we carry out assessments — unfortunately, this is not common enough — that the children who have been out of school are doubly discriminated against as their comprehension and learning abilities have not been developed and the process of socialisation has not been advanced because of difficulties at home. Their level of maturity and ability to comprehend, hindered by circumstances, obviously affects their capacity to realise the impact of what they are doing when committing a crime. Also, many of the children who have been assessed have learning disabilities or difficulties. There is a difference between the two categories.

The concept of fitness to plead, the only protection in the Children Court, is interpreted as applying only to psychiatric cases. In situations where one cannot secure a psychological or a psychiatric assessment for the child, because of under-resourcing, children are put in further danger. This is a source of grave concern. I dealt with a case last week where a 13 year old who had never been in court before had to appear before the Children Court and had absolutely no concept of the process involved. He was extremely distressed to find himself in a situation which he did not understand. Children with learning difficulties as old as 17 years have asked me to tell them what a conviction is before they are sentenced. The joint committee needs to be aware of the comprehension level of the children with whom we are dealing who will be covered by this legislation.

Chairman

Does the rule ofdoli incapax apply to ten to 12 year olds involved in serious crime?

Dr. Kilkelly

As it is being abolished, it will not be available to them.

Chairman

Therefore, it will not apply to ten to 12 year olds. What about those involved in serious crime?

Dr. Kilkelly

It is being deleted from the Act. The question is whether it will remain in common law.

To pick up on a minor point in respect of the age of criminal responsibility, although it is not insignificant, the Garda diversion programme will retain responsibility for those over ten years. Children aged ten and 11 years who can also be prosecuted for the serious crimes the Chairman mentioned can also be diverted to the programme, in spite of the fact that the age of criminal responsibility is 12 years. That seems to be an incoherent approach to the issue of juvenile crime.

Deputy Ó Snodaigh asked about the age of criminal responsibility in other jurisdictions. We are out of line with the rest of Europe. Many may say those jurisdictions are different in shape and form, which is true, but nonetheless the age of criminal responsibility ranges from 12 to 18 years. In certain countries it is impossible to prosecute those who have committed what would be classified as criminal offences if they are committed by persons under the age of 18 years. The Scottish welfare system would be the most celebrated in that nobody under 16 years is prosecuted unless the Procurator Fiscal so decides. The general rule is that those under that age will not be prosecuted unless there is a public interest requirement for a prosecution in cases of serious crime. Again, prosecutions are not always sought in those cases. The norm is very much a welfare approach, addressing the needs rather than the deeds of the young people concerned under what is often a very high age. For example, in Spain it is 16 years and in other countries, 18 years.

In response to Deputy O'Keeffe who asked about community sanctions, let me give a brief overview of the sanctions in place. Generally, community sanctions are fines and restriction on movement orders. Some of the sanctions introduced in 2002 required no resources, in addition to what was being provided. In terms of what remains, we have a range of probation-led initiatives that are different forms of the probation order such as intensive supervision, residential supervision and mentoring orders where the young person can be attached to another adult, a family friend or somebody who can mentor him or her outside the family context. The day centre order was heralded as the great response to youth crime, engaging children in structured activity in the daytime. To recap, the day centre, mentoring and probation orders are the main sanctions.

In response to questions about the changes to the juvenile liaison scheme, the two issues are the way ASBOs have been integrated into the Children Act and have required the amendments we are looking at in expanding the diversion programme to include anti-social behaviour. My colleague will address this issue, as well as the parallel mechanism of good behaviour contracts. The notion of a parallel mechanism of good behaviour contracts relates to putting in place a mechanism to act as a precursor to the application of an anti-social behaviour order. The result may be that children will, in effect, end up in the diversion programme. Why should there be an additional layer of bureaucracy when the diversion programme is up and running and often looks at anti-social behaviour in addition to behaviour that is criminal? As we know, the line between the two is sometimes thin.

In terms of the evidence, we are unclear as to what the motivation for this is. It clearly comes from the Director of Public Prosecutions in terms of prosecuting those who have been through the diversion programme and failed to address their offending behaviour. We will see evidence put before the court in the form of previous convictions, yet the young person will not be able to have that evidence tested in the court. That is a very serious issue which not only affects the due process rights of children but also potentially undermines thequid pro quo on which the diversion programme is based. If we want to get people into it, they must be given an incentive. This proposal takes away the incentive. I will defer to my colleague in this respect.

Ms Louise Cadwell

I work for a youth organisation called Catholic Youth Care. We have a number of programmes and projects that work directly with young people who are offending or seen by the community as at risk of offending.

In regard to the JLO scheme, the young person must admit that he or she committed the offence and that he or she committed a crime. The difficulty with ASBOs is that this remains vague, both in the new wording the Minister has brought forward and in comparison to what happens in the United Kingdom. In some sense it seems the anti-social behaviour aspect has been tagged onto the existing diversion scheme without any satisfactory explanation of what the behaviour might be. It could be something such as being a part of a gang, wearing a hoody, or being in a certain area at a certain time. It can be anything that somebody could possibly think up and there need not necessarily be any good reasoning behind it. That remains a difficulty. It brings in an added lack of clarity. I know young people in the community with whom a JLO or local garda could have an informal chat about their behaviour and sometimes that works well without any official action being taken. A young person may believe he or she has been put on the JLO scheme, even though he or she has not admitted an offence or been formally put on the programme. Added vagueness will increase the number of young people who come into touch with the criminal justice system. We know, from working with them, that once they are embroiled in it, it is very hard to go back.

Ms van Turnhout

There is one more question in regard to St. Patrick's Institution which I will ask Dr. Kilkelly to address.

Dr. Kilkelly

The answer to the question on St. Patrick's Institution is yes to its closure for all young people, in particular because the detention of young people with adults is contrary to Ireland's obligations under international law. It is something that is particularly offensive about the institution in principle. We support the decision in the Criminal Justice Bill to move everyone under the age of 18 years to children detention schools. Our difficulty is that writing St. Patrick's Institution into the Children Act will allow it to continue. It will not give a sense of the urgency required and it is likely that it will take up to ten years for the practical implications to be worked out to remove 16 and 17 year olds to children detention schools. That is a lifetime for the children who are there and another generation will be lost while waiting. Writing St. Patrick's Institution into the Act will not accelerate and add urgency to this issue.

Chairman

I thank the representatives. The time was short but we got a large amount of information from the presentation. I hope the representatives managed to give the information they wanted to give in that time.

Ms van Turnhout

We will send the committee a list of the ages of criminal responsibility internationally in order that it can make a comparison. We have a list in respect of each country and a list of community sanctions, with the amendments invited by the committee.

Chairman

That would be very useful.

Ms van Turnhout

We thank the committee for its time and look forward to our continued co-operation with it.

The joint committee went into private session at 3.20 p.m. and adjourned at 4.30 p.m. sine die.