Skip to main content
Normal View

Seanad Éireann debate -
Wednesday, 3 Oct 1984

Vol. 105 No. 10

Criminal Justice Bill, 1983: Report Stage (Resumed) and Final Stage.

Amendment No. 17 is an alternative to No. 18 and they may be discussed together.

I move amendment No. 17:

In page 10, between lines 37 and 38, to insert the following:—

".—Sections 15, 16, 18 and 19 will not apply to persons below the age of 12 years.

I do not want either to use language which is unnecessarily emotive nor do I want to leave myself open to the accusation of using language which is unnecessarily emotive. Nevertheless, there is a very fundamental issue of principle involved in these sections. It is possible, I understand, that sections 15 and 16 cannot apply to persons under 16 years because persons under 16 years cannot be sentenced to imprisonment. My understanding is that they are not usually sentenced to imprisonment. I am not certain that it is legally impossible to sentence children under 16 years to imprisonment. So we will carry on on the assumption that it is theoretically possible.

From my understanding of Committee Stage, the Minister was fairly clear that sections 18 and 19 would apply to persons above the age of criminal responsibility and that it was his desire that that should continue to be the case. I want to go through each of the sections now briefly and I do not want to take very long about it because while I would never concede that we have lost the battle — in a democracy battles are never over — it is one of the great virtues of democracy, therefore, whatever we win or lose on this occasion in this struggle on this issue you can take it that we will be back at every opportunity we get to try to redress the balance that many of us find so unevenly loaded at present.

We are late on in this discussion and there is no point in prolonging it — I would probably be technically out of order if I were to repeat everything. The four sections have implications for children over and above the question of young people being in contact with the law. I will talk about young people being in contact with the law first. Let us get rid of a few of the arguments that have been thrown around here. The fact that many other areas of our law permit certain things to be done with or to young people in terms of detention and questioning and so on, is no argument for persisting with that position. The fact that something is going to be done in the indefinite future about the whole question of juvenile justice is no argument for persisting, maintaining or insisting upon something that runs counter to what most of us understand to be the future thrust of that legislation.

Since the proposals on juvenile justice in the national plan consist of about seven lines of a vague statement and therefore are very far down the line, we must do all we can to preserve young people from further run-ins with the law. There are further implications involved in this.

The sections about witholding information regarding firearms or stolen property are written in such a way that nothing that a person says can be used to incriminate himself or herself and nothing that a person says can be used to incriminate his or her spouse. But it can be used to have a child incriminate his or her parents. Indeed, where a child apparently refuses to give such information it is an offence, whether or not it is punishable. It is still definitely, or apparently would be, an offence. The Minister can settle my concern on these points fairly clearly in a moment. But my information is that it would be an offence and it would be punishable in theory at least.

I find it distasteful that a child could ever be in a position of having to give information that would in some way incriminate his or her parents. I accept that it is exceptional and unusual for children to be involved in firearms offences. I accept that whatever my qualms or reservations, the whole area of access to firearms in the commission of crimes is a serious problem and one that we in this country, unfortunately, have to come to terms with in the context of our largely unarmed police force, something that all of us in the House value and which all of us who have watched developments in Northern Ireland in recent years would wish to retain. Therefore, the question of withholding information regarding firearms or ammunition has logic to it.

However, stolen property can range from a book, a bottle of milk up to massive amounts of stolen goods. It seems to me that such a wide-ranging offence can draw children in very easily. They may well have been present, they may well have some suspicion that what is in their house was stolen. Children's perceptions of what goes on in the world are very often quite acute, yet it is proposed that anybody over seven years, presumably, could be questioned. I object to that. Such a child could be asked to explain how he or she came upon stolen property. I object to that because I do not believe that is the way to deal with young people.

We are talking about children, not adults. They do not have the responsibilities of adults, or their opportunities, and quite clearly we cannot attribute to them the capacity to accept responsibility or to take the consequences of things they do. Much against my better judgment, I have used the age of 12 in the amendment not because I believe it is the best age but because I think it might be an age the Minister would consider and accept. At least we can argue about the principle without getting involved in distinctions between 12, 17 and various things along the way.

I would prefer the age of 17 below which a totally different regime should be operated in regard to juveniles because there is ample evidence that neither the coercive methods of which people would not approve — there are the "bring back the birch" brigade and people like them from whom I know the Minister is an outstanding exception — nor others should be applied to juveniles. Neither that regime nor the alternatives of education and rehabilitation and training seem to work. The British Government's experience of the sharp, short shock treatment has been that the instances of second offences have been as frequent as after the operations of other forms of treatment when dealing with juvenile crime. Juvenile crime is motivated differently, organised differently and repeated for different reasons.

The centre of my objection to sections 16 and 17 is in relation to children being questioned by the Garda about these matters. I do not think the ordinary member of the Garda, without specialist training or knowledge, should ever be dealing with children, no matter what the exigencies or the circumstances are. Children are very important and should be dealt with sensitively. I have ample experience of the way in which children are dealt with by the Garda. They are dealt with very sensitively and I concede that the Garda often have to do the job that should be done by caring agencies in relation to the provision of overnight accommodation for homeless children. It is to the credit of the Garda.

The issue here is not a suggestion of abuse, it is not even a hint that our young people are being abused. The issue is the impact on children of contact with the law in the guise of the law enforcement agency. In sections 18 and 19 there are implications which will reflect particularly on young people who are less than articulate. Children under 12 years cannot be detained for questioning — the Minister's amendment in the other House ensures that — so any inferences of an accused's presence at a particular place will be based on an immediate contact between the Garda and a child. Apparently the child's parents cannot be present since the child will not be in a Garda station. The child will be seen at a particular place, the Garda will ask him what he is doing there, the child will say "Mind your own business" and the Garda will be able to use that in evidence against the child in court subsequently.

I do not like that. I find the implications in it for children quite astonishing. I find the suggestion that somehow we need those powers against children to be quite astonishing, and I will use words I have used before: to put children into that sort of relationship with the Garda is unfair to the Garda but particularly to children. It implies a lack of civilisation on our part to put children into that sort of relationship. I, and I am sure the Minister, have had representations from a number of groups dealing with children who are worried about the inference from an accused's presence at a particular place. I know it can be used only as corroborative evidence but it is a new and different part of our criminal law. When it is intended to apply it, it should be applied only to people against whom there is serious evidence of serious crimes. It would be simple, it would be practicable and I do not think there would be any particular implications in regard to the intentions of the Minister and others who support the Bill if children aged 12 years and under were to be excluded.

Children below that age have not got the articulation, the knowledge of their rights or the maturity to cope with that. They would be wide open to misunderstanding. The suggestion that it could be explained to them in ordinary language is quite naive in the circumstances of the pressures a member of the Garda would be under and his busy routine. In regard to young people, particularly those in marginal situations, who come into contact with the law, the sort of somewhat less than intellectually adequate young people who end up in places of detention for young people, the evidence is that the incidence of intelligence in young people in places of detention is about 5 per cent or 10 per cent lower than in that general age group in society. That speaks for itself. It is that sort of intellectual capacity and educational attainment of the young people who will come into contact with the law because they were at a particular place at a particular time, it loads the dice more heavily against some of the vulnerable people in our society. I do not say that 12 years is an age about which I am particularly happy but it is the age the Minister chose in another section.

Senator Ryan is adopting precisely the same approach as I adopted in the last amendment. He is being very modest. He is not looking for 16 years of age. He is merely trying to make the age 12 years. I know that his view is it should be considerably higher. Recognising that the Minister has excluded people under 12 years from some of the provisions of the Bill, there are different considerations applying to each section. It is true to say that section 19 applies only to a person who is arrested without warrant. Therefore, it applies only in this case to a person under 12 years of age who is arrested without warrant at a time when the alleged offence has been committed and, as the section states:

(b) the member reasonably believes that the presence of the person at that place and at that time may be attributable to his participation in the commission of the offence, and

(c) the member informs the person that he so believes, and requests him to account for such presence, and

(d) the person fails or refuses to do so,

The application of any of these inference sections requires a decision, a judgment by the person who is the subject of the section and it is quite inappropriate that they should apply to any person who is below the age not only of criminal responsibility but the higher age at which there is a rebuttable presumption of the person's innocence of a crime. That it should apply to a person of seven or eight years of age is just not right. I have no doubt that when the Minister's colleague brings in the Children Bill these, and many other considerations, will be taken into account. It is reasonable to assume that there appears to be emerging a very minimal increase to the age of 12 in respect of raising the age of criminal responsibility. Therefore, Senator Brendan Ryan's attitude to this amendment is quite reasonable.

Similar considerations apply to section 18. That section requires arrest without warrant and that the mark be on the person. It requires the person to make a judgment as to whether he is going to explain that or not, a judgment between the adverse consequences of not explaining it and anything which might arise at the subsequent trial. The mere fact that a person has a mark on him, a mark which has been imparted to him during the commission of what appears to be an offence does not necessarily mean that he had committed an offence. For the mens rea of the offence wilfulness may be a necessary ingredient, knowledge to one degree or another may be a necessary part of the offence. Consequently, in deciding whether or not to account for these matters a person has to make a judgment. What the Minister is doing is tipping the balance in favour of making a disclosure because he is saying if a person does not make a disclosure there may be inferences drawn from it. That is a judgment an adult may be in a position to make, although the adult may not always be in a position to do that. However, it is certainly true to say that no child under 12 years of age would be in a position to make such a judgment. That is another reason why I think this is a reasonable amendment.

Section 15 relates to a person who has firearms or ammunition. Even in the case of a person of 12, 13 or 14 years of age it may be considered right that he should account for where he got the firearm. A person under 12 years of age would, if this Bill is not amended, be under an obligation to explain where he got the firearm. Instinctively, people might say that is a reasonable enough thing to expect but what is not reasonable to expect is that the scale of the offence which the person committed in not disclosing this information is beyond the comprehension of a person of such tender years. We are not giving the person any choice. We are just saying he has to. We are using a really terrifying instrument to do that.

Section 15 contains a particular additional piece of responsibility which was described in the other House by Deputy John Kelly as an extraordinary, if not a unique, addition to Irish jurisprudence. Basically, what he was referring to was the requirement in section 15 that not only if a person could give the information which they have in their possession, they are also under an obligation to take whatever reasonable steps they may have to inform themselves with regard to the facts in question. The section does not just say where a person is found in possession of firearms the garda has reasonable grounds for believing and he informs that person of this belief. It does not say that it requires a person to give them any information in their possession. It says that the person is required to give any information which he can obtain by taking reasonable steps. That is an additional requirement under that section and this is the portion of the section which was referred to in the other House as being of an extraordinary nature. It was extraordinary because it introduced a relatively new concept into legislation, requiring that a person in order to fulfil their duty under penalty of law should not only give the information which they have now but should seek additional information which they can reasonably get. That is really a most extraordinary development. I have the exact quotation from the other House which will give this House an idea of the scope of the section. The matter in the other House was reported at column 978 of the Dáil Official Report. Deputy Kelly said:

Deputy Woods has made a reasonable inquiry of the Minister, what the Minister has in mind in regard to the obligation which section 14 would appear to impose on somebody who has been interrogated in this way to take reasonable steps to obtain information which was not in his possession. It may be that the Minister and the Department have something particular in their minds and it may be that when we hear it it will cut the ground from under the misgivings I have about a form like that. Those misgivings relate to the relative rarity — I am not sure that it is not quite unprecedented but at any rate it is extremely rare — for a Bill like this to impose in certain conditions a duty on somebody or an incohate or incipent criminal liability which that person can discharge by future action...

Basically, Deputy Kelly was saying that the extraordinary responsibility, the extraordinary duty was imposed on somebody to take additional steps to inform themselves. When the Minister was replying, I do not think he dealt fully with that matter. We can only assume that the position as stated by Deputy Kelly — anybody reading the section can only assume that it is true — remains true, that under the section a person has to take reasonable steps. Is it reasonable then to expect a person under 12 years of age to take reasonable or any steps? People might say to me, "Well, a court would take into account the person's age in deciding what would be reasonable for them to do," but it is reasonable that the matter should be considered? Taking all those circumstances into account Senator Ryan's amendment is the minimum of what should be accepted.

Section 16 deals with explaining the origin of certain property. This section is different from the other three sections in that in the other two sections, Nos. 17 and 18 the person had to be arrested without warrant and, therefore, the Garda had to have a reasonable suspicion that they committed an offence. In the other case the person has to be found in possession of firearms, but here it is merely a question of the person having property in his possession. We have an amendment before us this evening which seeks to extend that. In other words, the children in the street can be asked and required under penalty of law to explain the origin of the property they have. As it stands unamended that goes very far and even after the ministerial amendment, it is an extraordinarily wide section. It will call on a person not only to explain in respect of the property itself which may have been stolen or unlawfully obtained in one way or another but also in respect of the proceeds. That is what you are requiring a child to do under the penalty of imprisonment. There is no point in my saying what are the terms of imprisonment. That is only playing on emotionalism. That the child should be under any obligation, if there was never a question of penalty, to explain where he got property which is in his possession and which he may have got from his parents, is ludicrous in respect of a person under 12 years of age.

My instinct is to support the amendment of Senator Robinson and Senator Higgins which seeks to achieve the same thing in respect of 15-year olds. A very strong case can be made for either. In the circumstances the Minister could shorten the discussion by telling us that he is accepting the latter amendment, in which case the first amendment would undoubtedly not be moved. I feel that the House should give serious consideration to making this amendment because it is appropriate.

In regard to amendment No. 18, in the name of Senator Robinson and myself, it should be understood that Senator Robinson is chairing a sub-committee of the Oireachtas Joint Committee on the Secondary Legislation of the European Communities and cannot be with us.

A number of substantial arguments in favour of raising the age from 12 to 15 were put forward on Committee Stage and the specific arguments as they related to section 15, 16, 18 and 19 have been developed by Senator Brendan Ryan and Senator O'Leary. The only point I want to make about what I suppose should be referred to, if I take up Senator O'Leary's point, as the immodest amendment if you take the other one to be the modest proposal it is, is that we were influenced in placing this amendment by the representations which had been made to us by the number of child care organisations to which I made reference on the last occasion.

My feeling is that in reforming criminal law you must retain the principle that the law exists perhaps much more for the protection of the innocent than it does for the apprehension and imposition of sanctions on absolutely everybody who is guilty. Put it another way, if the occasional guilty person escapes it is far less of a wrong I would argue in the view of the criminal law as I understand it looking at it from outside than that an innocent person be apprehended. That has been the thrust of the law as it has evolved. The fundamental principles within that are based on, for example, the different certainties within the criminal legal process which have evolved over the years and also certain presumptions that have grown up, such as the presumption of innocence until proven guilty and the related concept of the right to silence, perhaps not specifically established but generally understood.

If you were to take that and extend it, I think the assumptions that must guide you in framing legislation of this kind — leaving aside the earlier arguments as to the appropriateness of detention for questioning and whatever — must be ones that are addressed to the position of children in general. In the development of an argument from the specific evidence of children of relatively young age who have become involved, or have been shown to be involved, in major crimes you cannot depart from that minority of children to develop sections of legislation that will impact on children in general. I think you have to be guided by the general concept in this regard of the characteristics of children of tender years in general. The general principle of the Travers decision and the President of the High Court's statement was that it is in general most desirable in the interests of justice, unless there are practical impossibilities arising, that if a person about the age of 14 is suspected of the commission of a crime he should not be questioned or interrogated except in the presence of a parent or parents or some person of an adult kind who is looking after him as an accepted guardian. That decision was quoted by CARE and the other organisations to which I referred at different stages of the passage of this Bill through this House.

In many ways it is not that Senator Robinson and I are anxious to develop a less attractive proposal than that of Senator Brendan Ryan and Senator O'Leary. The age we suggest — 15 years — is the one that is consistent with a number of interpretations as to capacity and as to the possibility of understanding the procedures that are at stake and the sections to which the amendment makes reference. It is for that reason that we have chosen the age of 15 years. It happens also to be the age which is chosen for most of the submissions from the child care organisations.

As has been correctly pointed out by Senator O'Leary and Senator Brendan Ryan, amendment No. 18 specifically addresses itself to sections 15, 16, 18 and 19. Amendments on Committee Stage referring to earlier sections of the Bill have obviously been decided upon by this House so the amendment is focused on the specific terms of sections 15, 16, 18 and 19. I think Senator O'Leary has developed the argument in terms of capacity or the probability of the people affected in the age groups to which we make reference, of understanding the balance of the scale of the offence and the sanctions and penalties which are involved in their withholding of information. I would only add to his general observations in this regard that there is the question equally of the impact of these measures on the young population involved. I would stress that my arguments on Second Stage were not developed from a simply civil libertarian framework but were from a socio-economic group. This did not meet with much support from some Senators but I emphasise it yet again that it will impact disproportionately on people with very lower rates of partcipation in formal education, people who have experience of disadvantage and so on. The distinction between sections 16 and 15 of the Bill have been made by Senator O'Leary. It creates a new kind of relationship on the street between the enforcement authority and the people to whom these new powers could potentially, perhaps even not probably, be directed. The distinction varies, even if it is the distinction that where reasonable grounds have been satisfied that a person is in possession of any property and that there are reasonable grounds for believing that the property is stolen and that the person has been informed of this belief, the enforcing agent shall at that stage begin to make inquiries.

I would emphasise that it is my purpose, as much as anything else, in everything I have to say in the passage of this Bill, to question the ethics of anybody trying to reduce the crime rate. I would argue that this will impact on the community in a totally negative way. I cannot say that it will, but it could potentially which is the appropriate question for a person making a decision on the legislation. In relation to the arguments about sections 18 and 19, they logically follow as an extension of one's fears about sections 15 and 16.

Members are well aware of the question of inferences that may be drawn from the withholding of information referred to in sections 15 and 16. The question of inference is what we are dealing with here. It is the compounded consequences of the Bill falling on a section of the population on whom we are anxious for it not to fall. We have in our amendment limited ourselves to sections 15, 16, 18 and 19. This is justifiable in terms of the sanctions that are there, particularly those which arise in relations to the potential operation of sections 15 and 16. Amendment No. 17 is a position very much less than that put forward by Senator Robinson and myself. Fifteen was the age chosen because we felt that the arguments we developed on Committee Stage consistently suggested that this would be the age which we would choose.

Not being a legal luminary, I was hesitant to become involved in this debate but from listening to the contributions of my colleagues supporting these two amendments, I find that my view would be against them. I would hope that the Minister would resist them because to accept them would be to significantly change the age of criminal responsibility. It would certainly place a greater strain on children under 12 or 15 years, as the case may be, from ruthless criminals who would, by virtue of that very amended section, use children for their own nefarious purposes. This would be a disastrous step and it would cause untold hardship to so many children in the years ahead. For that reason alone, I would hope that the Minister would resist it because, from any point of view, in whose hands would the children at risk be safest? Is somebody going to say that children, whether they be on the street or not, are safer in the hands, under the care and at the behest of the criminal elements in our society than they would be with the people who take an oath to serve the country and to implement this law?

I would reject the arguments being put forward in favour of these amendments and it would be a very dangerous precedent if the Minister were to accept them. The young people at risk in our society must be protected and defended in every possible way. If the Minister is to accept this amendment and write into the Bill that children up to 12 or under 15 years would be immune in this particular fashion, who are the criminals and the organised gangs going to go after to do their dirty work for them, other than children of those tender years? It would be placing an intolerable burden and exposing those children to intolerable dangers if the Minister were to accept that line. I would hope that the Minister would resist those amendments because the youth of our country and especially the small numbers of children who are exposed to the criminal elements in that fashion surely numerically and as a percentage of the total numbers of our schoolgoing children must be very small, indeed. Surely it is possible to provide for them, to offer them more shelter and to improve the services that are designed to look after them.

To accept those amendments would be to expose these children to tremendous danger and put them as an attractive weapon for the ruthless criminals — and there are such in our society, whether they be in the political arena, or in the drug rings or acting as fences or whatever. I hope that the Minister will take the larger view and will not, as it were through the backdoor, change or alter the age of criminal responsibility in this fashion. It is unusual to have somebody speak against an amendment in this way, but if the Minister were to accept these amendments I would see sections 15, 16, 18 and 19 then holding out great perils for young, unsuspecting people who would be used in a ruthless fashion by our criminal classes.

On balance, I would be prepared to take the risks which Senator McDonald has envisaged for children under these ages. The risk of their putting themselves in a dangerous position by being subject to these sections is a far greater risk. Sections 15, 16, 18 and 19 are new provisions. They are very sophisticated provisions and introduce a new element into the law. They are sophisticated in the sense that people have to keep their wits about them to avoid being trapped by the kind of situation that these sections will put them into. I think "trapped" is not an unreasonable way of describing the situation in which people will be put if they are questioned under any one of these four sections. They are new and sophisticated and they are, in a sense, a trap.

When they were introduced at first — like many other sections of this Bill we are used to them now — there was a great deal of opposition to them. There was a very strong feeling that they were undesirable and dangerous even when applied to people of full age. That being so, they are more undesirable when we come to consider whether they should be applied to children. For that reason we should certainly make a distinction between the application of these sections to people of full age, or even to children of an older age, and the kind of ages which are being mentioned in these two amendments. It seems scarcely credible that these sections would be applied to children under 12 years and it is certainly very undesirable that that should happen. I would even go further than that and say that they should not apply to children under the age of 15 years.

A strong case was made by the Minister for having detention for children between the ages of 12 and 15 years, and as far as I was concerned with reluctance I agreed to it, but this is a different kind of situation. Detention will still be possible for children over 12 years of age, and questioning will still be possible but to apply these very sophisticated sections to children between 12 and 15 years is undesirable. For that reason — I do not propose to go into all the reasons again because they have been very fully developed by the speakers before me — I would be very surprised if the Minister does not accept amendment No. 17. I do not think these sections are appropriate to children under the age of 15. Nothing would be lost by agreeing to the amendments and saying that these sections should not apply to children under that age.

I share Senator McDonald's concern about the exploitation of children. I have no doubt that if we exclude children from these provisions his fears could in some circumstances be realised. However, I do not think we need despair if we decide to pass the amendment. I worked for three years in the children's hospital on the Falls Road. It was not for nothing that a distinction was made between the treatment of children at 14 years of age and the been treatment of adults, and that people who specialised in the care of children had been involved in this work over a considerable period of time. We now have a child psychiatry as well as adult psychiatry unit and quite different demands are made on them — the problems are different, the techniques used are different, the approaches are different, the feelings of those involved are different, and the relationships developed are different. Nevertheless, in the area of psychiatry one gets very close to and in fact crosses over to the area of criminality. I would like to ask once again a question which has been asked throughout this debate — I regret for reasons I cannot go into that I have not been able to be there as much as I would like — that is, whether enough throught has been given to the in-depth training of the Garda and the ban gharda — in this particular instance, I would emphasise the latter — to deal with the specific requirements of children caught in these very invidious situations and subject to the pressures which Senator McDonald outlined.

I would emphasise to the point of being tedious and perhaps boring, what I said before, that, we are urgently in need of some citizens' chatter in this country. We are urgently in need of a much more imaginative approach to community policing and inter-play between representatives of the police force and representatives of the local community. We need to look in-depth at police training. In this context — and in particular in relation to the Children Bill which will come before the House in due course — I wonder whether the Minister would consider the very serious implications of this Bill as it has been brought forward for children under the age of 14 in the medical or psychiatric context of making a distinction between the treatment of adults and the treatment of children. Perhaps it is intended to deal with these very matters in the Children Bill. If so, I shall be pleased, but if not, I shall be very disappointed to find children subjected to this legislation and not sufficient consideration given to the means by which it is applied, the specialised nature of the type of interrogation to which they should be subjected — if subjected to it at all — and perhaps a much broader and deeper challenge to the forces of law and order to go into the whole area of child criminality.

(Limerick East): We had a fairly full discussion of the matters covered by these amendments in Committee. Senator Brendan Ryan was then proposing that the four sections should apply to persons under 17 years of age. As regards sections 15 and 16 which create offences, there would be no precedent for excluding persons of a particular age from their application. Statutes creating criminal offences are expressed to be of general application, leaving it to the common law governing criminal responsibility to provide for exceptions. Thus, insane persons or children under 7 years of age are not criminally responsible, and between 7 years and 14 years there is a presumption against such responsibility. The presumption may be rebutted. It is strongest at ages close to 7 years and becomes progressively weaker as one approaches 14 years. The treatment of children — those under 15 years — is governed by the Children Acts. Senators will appreciate that for that reason alone I would have difficulty in accepting these amendments.

What are we talking about here? We are not talking about the Garda asking a simple question — where did you get that gun, or where did the video come from and so on? The Garda have that power already. They can ask anybody, whether a suspect or not, any question when they are investigating an offence. That right is expressly recognised in Rule 1 of the Judges' Rules. The sections here take this a stage further in the event of the person refusing to say where he got it. They authorise the garda to require him formally to say how he came by the gun or the property which is believed to be stolen. When doing so, the garda must explain in ordinary plain language that he may be fined the maximum of £1,000 or sentenced to the maximum of 12 months or both if he fails or refuses, without reasonable excuse, to say where he got it. That is what is involved. The sections are an attempt to get information so that we can get at suppliers of guns and dealers in stolen property. I am glad they have been so well supported in the House. They are an innovation and that is why safeguards have been provided and I shall be monitoring their operation carefully to see how they are working in practice because the traffic in guns and stolen property is one of the features of the crime situation which give rise to the greatest concern.

Quite apart from the technical reasons for not accepting the amendments, there is the fact that youngsters under 15 years of age may come across a gun or may have possession of stolen property. Certainly, I accept it is not so likely as regards guns and in that case there is no particular problem. It is otherwise, I believe, in the case of stolen property. Children under that age can be engaged in stealing and unlawful possession. The sections are aimed at the supplier, not at the person in possession.

Recently somebody told me they were stopped in traffic and saw a man passing a roll of notes to a child who immediately hid it in her shoe and went off, obviously by prearrangement. Members in both Houses told me recently of a meeting with city centre traders who explained to them in great detail how children in O'Connell Street are organised to take objects from the stores and to pass them on to adults who are controlling them. These sections are not aimed at the person in possession, whether it is a child or an adult. They are aimed at the person who is organising the trade in stolen goods. Senator O'Leary talks about an obligation on the child to take reasonable steps. The Senator is well aware that the concept of reasonableness is well known to the law and has been interpreted frequently both in civil and criminal cases. What is reasonable for an adult might not — and probably would not — be reasonable for a child. If a child took no steps at all, it could be regarded as quite reasonable for him not to have done so in view of his age and mental capacity.

Concern has been expressed about the application of certain provisions, and in particular those we are now discussing, to young persons, but much of it is unreal. I do not see any difficulty at all in the application of the inferences section to under 15s or, indeed, to under 12s. It is a matter for the court or the jury acting upon the directions of the trial judge, not for the garda. These sections are not at the discretion of the garda; the court will drawn an inference where the judge believes it is proper. If the judge believes it is proper, he will draw the inference or if he is sitting with a jury, he will direct the jury that it is proper to draw an inference so the rights of young and old are protected by the court and it is the court who will decide in those circumstances.

I do not see any reason whatsoever for the exclusion of the under 12s. I simply cannot imagine a garda reciting to a child the complicated formula in sections 15 or 16 before formally requiring him to give information about the property and then explaining in ordinary language what the effect of failure or refusal might be. What would he do? Would he summon the child to appear before the Children's Court for an under 12? I would be very surprised if a district justice had nothing to say about a garda who went through this formula with an under 12. I would say that his prospects would not have been improved — to say the least — in court. For these reasons I am not accepting the amendment, but I say to the House, not on the basis of rhetoric but on the basis of concerned advice, that what we did on section 4 was to exclude people under 12 years of age but that made no change in the age of criminal responsibility because the existing powers of arrest without warrant would still apply to the existing age of criminal responsibility. In the particular peculiar circumstance of the 11 or 12 year old, a garda has the power to arrest without warrant, take the child to the Garda station and send for the parents. We excluded the power to detain them when they were taken there: no change in the age of criminal responsibilty.

What is being advocated here is that we change the age of criminal responsibility because there are two new offences being created in the first two sections. We are saying now that people under 12 should be excluded from those two new offences. That is a change in the age of criminal responsibility and I respectfully suggest to the Seanad that in advocating that change you are pre-empting the Minister for Health and the Government in coming in with the general change in the age of criminal responsibility which they intend to do in the very near future. I do not know what age the Minister will recommend to the Government, but if this amendment is pressed, then you will have a situation where the Seanad has decided after consideration that in certain offences the age of 12 will be the age of criminal responsibility. I suggest to Senators who are concerned about the age of criminal responsibility — and certainly I am — that you will have cut off a very large portion of the discussion and I would be very surprised if you get a higher age than 12 subsequently. You may get a lower age, but you are going down the road where you are almost making it certain that it will be 12 years of age. It is different from section 4; section 4 made no change in the age of criminal responsibility but because there are two new offences involved here, you are changing the age of criminal responsibility in respect of those offences. It is pre-emptive to do that when the Government have stated that it is their clear intention to change the age of criminal responsibility; it is pre-emptive on the Minister for Health who clearly is committed to changing the age of criminal responsibility. However, I am not standing on the privileges of Government or Ministers; I am saying you will also preempt the discussion and bring about a situation where I would be very surprised if an age other than 12 is seriously discussed if you make this change here which is, in effect, a change in the age of criminal responsibility. I ask the Senators not to press it.

I was a bit disappointed — this will not surprise him — at some aspects of the Minister's reply. Stories about young people committing crimes, especially those involving organised robbery, particularly where there is no violence involved, should be used with great care because when a youngster is involved in organised crime of a kind which does not involve violence, in other words, which involves robbery and things like that, the most wounded victim of that crime is the child who commits the crime. I would see it differently where there is assault, violence or any sort of upset to people, but where a child is involved in a crime which does not involve violence and particularly in the sort of case the Minister talked about — the first about the organised children in gangs in O'Connell Street and the second about the child with the roll of notes in her shoe — the most tragic victim of those crimes in each case must be the children. I am glad the Minister is nodding agreement, but that is not the way the Minister presented those two examples in his reply on this section and I regret that profoundly.

I came into this House with a commitment to social reform which is shared, incidentally, by the vast majority of Members of the Oireachtas, I do not claim for one second to differ in kind from any other Member; I have a particularly indulgent constituency among other things and, therefore, I can devote far more of my time to issues that other people would be concerned about but who have less time to devote themselves to. Perhaps because of that I am less impressed by arguments about precedent and about what happened in the past than I would otherwise be because I am not really concerned about precedent. I am concerned about new things, about change and about innovation and improvement. We cannot allow change, innovation and improvement to await some promised future date, whether it be in a Children Bill or in other legislation. The time for change is now. If change is needed, it is needed now, not in the future. That is the context in which I proposed what I believed to be a reasonable amendment, a small part of the necessary wideranging review and revision and change in the whole area of juvenile legislation.

One of the arguments, I advocate for this amendment, the minimal age of 12 — Senators Higgins said it on another occasion — is that it will hasten the production of a Bill on juvenile justice. It is not entirely appropriate, but it is worth reiterating that the section in the national plan on juvenile justice is vague in the extreme, contains absolutely no specifics and suggests that it is a long, long way from us. Our children have suffered enough from the most antiquated children's legislation in Western Europe. The time to start reforming it is now, this instant on this legislation.

The Minister in the course of a very able and very reasonable — from his point of view — argument defended his point of view very vigorously but did not resort to anything other than reasonable argument 90 per cent of the time and if I could claim that I would be quite happy. From that perspective, nevertheless he has conceded that the Bill is innovative, that it involves a large number of new ideas and concepts; the Garda will have new powers; they will not be familiar with historical precedents but they will not be given any training about how to operate these powers, other than by intent. There will be no practical experience.

Therefore, each of these powers must be examined for all its possible implications and not just because of our concern about the scale and intensity of crime in Irish society. That is why, even though there is some basis for the concern that children could be used, it depends on one's perspective how one would work from there. I do not want to suggest that I have a more noble perspective about children than the Minister — none of us who have children would ever try to suggest that others with children do not share our concern — but this is fundamentally a matter for political judgment and priority about how and when you start and not about who is most concerned about children.

From that perspective we are giving new powers of inference, asking people to do things that they never did before. Even if the exclusion of children under 12 is no more than purely symbolic — the Minister has indicated that a garda would be very foolish to use these powers in cases of children under 12 — it would be worth doing because it would be a move away from the dreadful 1908 Children Act which had the dreadful suggestion that children over seven could be somehow criminally responsible.

I repeat what has been said to me over and over again by people working with children. They are not some sort of dogooder liberals living in suburbia, far away from the problem associated with inner city crime. The organisation that has impressed me most in its concern about the implications for children of some of these sections is the organisation called Hope who provide accommodation for homeless children and who themselves are often the victims of the criminal activities of some of those children. They are victims of juvenile crime but they choose to respond to it in a fundamentally different way.

Effectively, that is the argument inherent in my amendment proposing to exclude children under 12 years. The argument is that from the first contact with the law children under 12 years should be dealt with in a different way, in different premises, by specially trained people, in different courts with different procedures when they are found guilty.

This is a new piece of legislation with provisions that did not exist before and it is therefore singularly appropriate that if we are to talk about dealing with children differently we should make sure that extra new provisions in the criminal law should not apply to them. There has been a suggestion that we are creating a precedent. I did not pick 12 years, the Minister did in section 4. I believe, and I have often said it, that the age of criminal responsibility should be 17 years because I think that below that age we should treat children differently. Below that age we treat children as children in virtually every other area except in that of crime. Quite clearly the age of criminal responsibility should be 17. That is not the same as saying that children under 17 years should escape scot-free if they are involved in offences that hurt other people. The question is how we deal with them under the law if they are below the age of criminal responsibility. It is what you do with them, what you do for them and the alternatives you offer to them.

As I have said often during this debate, it is a great pity that the problem of drugs very often comes up as an example of where children need to be brought into contact with the law. The Minister did not say it but others have spoken about drugs in the course of this debate — drugs and children. It would be much more credible if there was somewhere in which children under the age of 16 years who are addicted to heroin could be treated. There is no residential treatment facility available for heroin addicts under the age of 16 years. If that alternative were available there would be some logic to the argument. So long as we do not offer them treatment there is hyprocisy in talking about concern for them if they are addicted to heroin.

It is not so much a matter of a huge impact by huge numbers of gardaí on huge numbers of children. The issue here is where do you start the process of reforming children's legislation. The provisions of this Bill are new. They have never applied to children before because such provisions did not exist. It is therefore singularly appropriate that, as a first step on the road to reform of children's legislation, these new provisions should not apply.

I am putting the amendment.

On a point of order, in view of my relative inexperience in the House I seek the guidance of the Chair.

The Senator cannot look for guidance at this stage. The Senator cannot interrupt me at this time. I believe I know the matter that the Senator is concerned about, he is anxious about the second amendment.

My question arises only in regard to the amendments. Senator Brendan Ryan correctly replied to amendments Nos. 17 and 18 in so far as they had been grouped for discussion but, in the course of the final speech on those, the issue of the age of responsibility was raised as to whether it would be established at the age of 12. The amendment in the name of Senator Robinson and myself mentions the age of 15. In view of that I believe the amendments should be voted on separately.

Perhaps I should explain. Senator Higgins has no right of reply to the discussion on amendment 17. Where two amendments are taken together the right of reply rests only with the mover of the first amendment. Amendment 18 was taken with 17 for the purposes of discussion only and a separate decision can be taken on 18 if necessary.

Amendment put.
The Seanad divided: Tá, 20; Níl, 25.

  • Cassidy, Donie.
  • de Brún, Séamus.
  • Ellis, John.
  • Fallon, Seán
  • Fitzsimons, Jack
  • Hillery, Brian.
  • Honan, Tras.
  • Hussey, Thomas.
  • Kiely, Rory
  • Lanigan, Mick.
  • Lynch, Michael.
  • McGuinness, Catherine I. B.
  • Mullooly, Brian.
  • O'Leary, Seán.
  • O'Toole, Martin J.
  • Ross, Shane P.N.
  • Ryan, Brendan.
  • Ryan, Eoin.
  • Ryan, William.
  • Smith, Michael.

Níl

  • Belton, Luke.
  • Browne, John.
  • Bulbulia, Katharine.
  • Burke, Ulick.
  • Connor, John.
  • Conway, Timmy.
  • Daly, Jack.
  • Deenihan, Jimmy.
  • Dooge, James C. I.
  • Ferris, Michael.
  • FitzGerald, Alexis J.G.
  • Fleming, Brian.
  • Harte, John.
  • Howard, Michael.
  • Kelleher, Peter.
  • Kennedy, Patrick.
  • Lennon, Joseph.
  • Loughrey, Joachim.
  • McAuliffe-Ennis, Helena.
  • McDonald, Charlie.
  • McGonagle, Stephen.
  • McMahon, Larry.
  • Magner, Pat.
  • O'Brien, Andy.
  • Quealy, Michael A.
Tellers: Tá, Senators B. Ryan and Ross; Níl, Senators Belton and Harte.
Amendment declared lost.

I move amendment No. 18:

In page 10, between lines 37 and 38, to insert the following:—

".—Sections 15, 16, 18 and 19 will not apply to persons below the age of 15 years".

I second the amendment.

I admit that this procedure is complicated but the amendments were taken in the order they appeared on the amendment sheet. It might have been better to take amendment No. 18 first but I believe I will satisfy the mover of that amendment if it is put to a divison now. I cannot allow any debate on the amendment.

May I speak?

Amendment put.
The Seanad divided, Tá, 23; Níl, 25.

  • Cassidy, Donie.
  • de Brún, Séamus.
  • Ellis, John.
  • Fallon, Seán.
  • Fitzsimons, Jack.
  • Higgins, Michael D.
  • Hillery, Brian.
  • Honan, Tras.
  • Hussey, Thomas.
  • Kiely, Rory
  • Lanigan, Mick.
  • Lynch, Michael.
  • McGuinness, Catherine I. B.
  • Mullooly, Brian.
  • O'Leary, Seán.
  • O'Mahony, Flor.
  • O'Toole, Martin J.
  • Robb, John D. A.
  • Ross, Shane P. N.
  • Ryan, Brendan.
  • Ryan, Eoin.
  • Ryan, William.
  • Smith, Michael.

Níl

  • Belton, Luke.
  • Browne, John.
  • Bulbulia, Katharine.
  • Burke, Ulick.
  • Connor, John.
  • Conway, Timmy.
  • Daly, Jack.
  • Deenihan, Jimmy.
  • Dooge, James C. I.
  • Ferris, Michael.
  • FitzGerald, Alexis J. G.
  • Fleming, Brian.
  • Harte, John.
  • Howard, Michael.
  • Kelleher, Peter.
  • Kennedy, Patrick.
  • Lennon, Joseph.
  • Loughrey, Joachim.
  • McAuliffe-Ennis, Helena.
  • McDonald, Charlie.
  • McGonagle, Stephen.
  • McMahon, Larry.
  • Magner, Pat.
  • O'Brien, Andy.
  • Quealy, Michael A.
Tellers: Tá, Senators M. Higgins and B. Ryan; Níl. Senators Belton and Harte.
Amendment declared lost.
Amendment No. 19 not moved.

As amendments Nos. 20, 21 and 22 on the Order Paper are alternatives, they may be discussed together.

In view of the ministerial amendment which is tabled I beg the leave of the House to withdraw amendments Nos. 20 and 21 which are in the nature of alternatives.

Amendments Nos. 20 and 21 not moved.
Government Amendment No. 22:
In page 11, line 18, to delaete "(direct or indirect)".

I thank the Minister for introducing this amendment to meet the case which was made here last week about the scope of section 16. I appreciate very much the Minister's amendment, which improves the section somewhat. I thank him for his courtesy in this regard.

Amendment agreed to.
Question proposed: "That the Bill, as amendment, be received for final consideration."

Could I bring to the attention of the House that there are two matters on Report Stage which the Minister indicated he would look at, but which have not been dealt with by way of amendment? Would the Minister let us know what is the result of his consideration? One item was section 4, which Senator Durcan mentioned, the introduction of "as soon as practicable" in the context of the arrival of the person at the Garda station and the reasonable suspicions — or whatever the appropriate expressions were. The second matter concerned the extension of the powers of the District Court in general to sentence people to two years' imprisonment consecutively in respect of two offences, and the effect that this might have on reducing the incentive for people charged with these offences not to commit further offences while on bail.

(Limerick East): The first matter raised by Senator Durcan I have had looked at. I thought that putting in the phrase “as soon as practicable” would create a loophole in that respect. My intentions is that there would not be any undue delay of any sort when somebody is brought to a Garda station and when the member in charge is evaluating whether he would be detained or not. I would expect the member in charge to do it as soon as he possibly can do it. That is why it is phrased as “on arrival at the Garda station”. So there is no suggestion of an interval of time elapsing before the member in charge makes that decision. Of course, in the de facto situation he will have to speak with the arresting garda and he will have to make an evaluation, but to put in a phrase such as the Senator suggested would imply that there was an undefined interval of time which could elapse before the member in charge would make his decision. I do not think it is a good idea for that reason.

On the question of the two years' imprisonment by the District Court, Senator O'Leary made the point on Committee Stage that increasing the jurisdiction of the District Court to two years for consecutive sentences generally would have the effect of diminishing the impact of the consecutive sentences on offences committed while on bail. He argued that a criminal who is charged with two offences, say stealing apples, would be liable to be given two consecutive sentences of 12 months each and if this were to become the norm that it would remove the incentive for habitual petty criminals to avoid committing offences while on bail. He suggested that the existing limit of 12 months should be retained except for offences committed while on bail.

Apart from the bail cases, it is a matter for the district justices concerned to decide if consecutive sentences would be appropriate where the accused is convicted of a number of offences. Consecutive sentences will be mandatory under section 11 for offences committed while on bail, but in the case of other offences a district justice has discretion whether or not to impose consecutive sentences. Section 12 (1) is an enabling provision that provides that where he wishes to impose consecutive sentences he may do so for any term up to the limit of two years. It does not follow that there will be an increase in the rate of consecutive sentencing by district justices as a result of this section or that they will become so commonplace that, as envisaged by the Senator, they will have the adverse effect on the consecutive sentences for offences committed while on bail.

If section 12 (1) were to be limited to offences committed while on bail, it would be rendered superfluous since it would then be providing for the situation already covered in section 11. Furthermore, it would give rise to an anomaly in that mandatory consecutive sentences for offences committed while on bail, section 11, and offences committed while serving a sentence, section 12 (2), would be subject to a maximum of two years. All consecutive sentences for other offences would be subject to a maximum of 12 months. This would introduce an undesirable disparity and added complexity into the District Court jurisdiction. To apply the above to the offences, say, of stealing apples, it would be strange if the district justice were to decide to invoke his discretion to make the sentences consecutive. He would not do this at present in such a case and the extension to two years of the discretionary limit for consecutive offences would be irrelevant.

There could be persons accused of two or more offences not committed on bail which were of such a serious nature that the justice would think it right that the sentences for them should be consecutive rather than concurrent and should add up, say, to 18 months or indeed to the two years limit. It is that type of case that section 12 (1) was introduced to meet. That is the evaluation we did of the points raised.

Question put and agreed to.
Agreed to take Fifth Stage today.
Question proposed: "That the Bill do now pass."

My reason for speaking at this stage is simply that I had offered at the time of the absence of the Minister from the Seanad at the start of Second Reading and therefore want to contribute now. I do not know if I am in order in so doing.

For the information of the Senator, he cannot make a Second Stage speech now.

I do not intend to.

You must talk on the text of the Bill — what is in the Bill — and nothing about what should be in it now.

Would the Cathaoirleach be good enough to correct me if I——

No, I will not. The Senator understands the situation.

There are a few things I wish to say. Firstly, there was a great need for the Bill. People felt strongly about it, judging by the number of contributions we have had in the other House and in this House. Public opinion has been crying out for such legislation for some time. Indeed, in the recent election it was evident from surveys that were carried out that crime was one of the biggest issues on people's minds. It happens in my own county of Donegal that the rate of indictable crime is lower than anywhere in the country. Indeed, in Donegal the rate at 10.5 per 1,000 population is one-third of the average of the total country at 29.8, indeed, one-sixth of that of Dublin at 59.5. I do not say that with any degree of extra consideration for Donegal. What I am saying is that even in Donegal, despite the crime rate being as low as those records show, there is anxiety about an increase in crime, in vandalism and in thuggery in our county.

The second reason why this change of law was necessary was coming from the Garda themselves. Crime was on the increase and the Garda were implicitly, and sometimes explicitly, being blamed for that. They felt hampered and restricted by the law as it was in existence and the way they were expected to enforce the law. The Government and the Minister for Justice had to do something. The Government and the Minister for Justice have done something.

The present Minister is not the first to promise legislation in recent years but he is the first to deliver. It is greatly to his credit that he does not go about claiming to have all the answers. Indeed, when the Minister saw fit he amended legislation as it went through the other House. He has listened effectively and attentively to all that has been said about the Bill and he has not been slow to introduce the changes, even substantial changes, suggested by critics of the Bill. He did this on the Committee and Report Stages in the Dáil and he has indicated a willingness to introduce, and he has introduced, other amendments. It is good to feel that in this case at least what we say and what has been said in the other House did not go unheeded.

Some sections of the Bill have been controversial, but the major part has been uncontroversial and has had the support of the majority in this House. People from different sides of the Houses have lined up in support of the Bill but a minority, a very responsible, industrious and very articulate minority, opposed some sections. Many of the critics of the Bill had a degree of unreality about them. Despite their protestations, they come across as being more concerned about protecting criminals than about protecting the victims and the potential victims of crime.

There will be no reply to that Bill, there will be no opportunity without being grossly out of order to reply to the suggestions just made by Senator Loughrey. In the interests of order in this House, I would anticipate that we be urged to make Final Stage speeches in which we will reply to the suggestions as to the motivation of those of us who oppose the Bill.

I hope you will allow me the same latitude in my speech as apparently Senator Loughrey was allowed on Final Stage.

I have listened with great interest to the Senator and I cannot see that he is out of order. He is widening the scope a bit, but what he is saying is tied up with everything——

As long as we are able to place on the record that our motivation is not the defence of criminals, your ruling is perfectly satisfactory. It is important that it will be on the record.

(Interruptions.)

That was better not said.

I want to place on record that I did not say that, and I have no intention of inferring that. What I am saying is that despite the protestations of Senator Higgins and Senator Ryan people might construe——

There are more people than Senator Higgins and Senator Ryan who oppose this Bill.

I am being taken up wrongly and I regret that. I know it is out of concern that Senator Ryan, Senator Higgins and Senator O'Leary have opposed sections of this Bill. What I am trying to do is to put on record that despite their best efforts, and despite the fact that their intentions were completely honourable, there will be people who will think less than that.

There is something worrying about the self-confidence, self-assurance and sense of right of the huge majority in the Oireachtas who support what are, everybody agrees, drastic changes in the law, changes which in some cases overturn basic legal principles. We, the legislators, can get carried away with the assumptions we make about how well we represent the people.

On this issue of law and order there are two perspectives of what the State is doing and what the State should do about crime. The first view is that of those whose only contact with the Garda has been when they are reporting something or looking for help but there is a substantial number of people, and I am not talking about criminals, who for a variety of reasons, including personal experiences, do not see the State forces of law and order as being on their side or as being helpful to them. We may feel that this view is unjustified or wrong-headed, but we cannot ignore the fact that this view does exist.

There has been a good deal of talk about the youthfulness of the population and that half the population is under the age of 25 years. I would like to mention another figure. If we exclude children up to school-leaving age, approximately one-third of the population are between the ages of 15 years and 30 years. It is important that the settled people who are rearing families and have a stake in the community should have confidence in the forces of law and order. I want to talk about confidence in the forces of law and order. These are the people who talk to TDs and Senators, these are the people whose views we try to reflect but it is important that the younger people should have confidence in the forces of law and order. We should be careful that what we are doing and what has been done in this Bill is seen to be helpful from that point of view.

To develop this point further, I must talk about the effectiveness of the Garda. We are all against crime. We are all in favour of law and order. We are dependent on the Garda to fight crime and to keep peace. We must ask ourselves how the Garda can be more effective and point out that this legislation is only one aspect of that effectiveness. The first thing we must look at is the make up of each individual garda, his commitment to law and order and we must ensure that his real reasons for going into the job are honourable. He must feel he has a vocation to help his fellow man. We should ask ourselves what we are doing in this law, or in other similar legislation. We are giving powers to the Garda to protect the vast majority of the citizens of the State from the minority of citizens of the State. We are asking the Garda to protect us from ourselves. It is therefore imperative that the Garda be of the highest quality, of the highest standard and when the Minister and the Department are recruiting for the Garda Síochána they must ensure that the motivation of those young gardaí is of the highest order.

There is one aspect of training of gardaí I feel ought to be corrected. I believe that the training college should not be outside this city because the vast majority of crimes are carried out here, in this city, simply because a big percentage of the population reside in or around Dublin city. In my view, it was a retrograde step to move the Garda training college from Dublin to Templemore.

I object to that. That is casting aspersions on the existing training college.

I agree. This is completely outside the scope of the Bill. Do not argue with me.

I am not arguing. I just want to put on record that I am not saying the college is substandard nor am I criticising where it is located. It is just that I feel that there should be more adequate training for gardaí——

That is not in the Bill.

I apologise. The gardaí should have proper equipment to implement the law we are passing in this House, but more importantly, they should be trained in public relations. We have spent a lot of time in both Houses talking about the standing of the Garda in society. I believe that while the critics of the Bill were well intentioned and honourable — I want to put that on record — while they were putting their criticisms on record they may have been undermining our Garda. We must have respect for the Garda but the Garda must earn that respect.

The Garda have earned our respect over a long number of years. I would like to place on the record of the House that I have complete confidence in the Garda Síochána. They have given a fantastic service to this country over many years and I do not want it to go out from this House that the Garda are not respected by Members of this House.

I say with respect, that Senator Loughrey seems to be making a Second Stage speech. He already said that because he was not here for Second Stage he could not contribute but he is present now and by means of subterfuge, he is making a Second Stage speech. That is grossly unfair to the House and to those of us who sat through this Bill from the beginning.

I agree with you. He is going to leave the situation very difficult for me because people will try to widen the scope. Keep to what is in the Bill.

I wish to respect the laws of the House and the other Members, and particularly yourself. However, I hate being misquoted especially by Senator Lanigan. It is not my intention to cast aspersions on the Garda Síochána.

On a point of order, Senator Loughrey said that the genuine contributions of people made on the Bill undermine the Garda. That is exactly what Senator Loughrey said and I object to that because I know that in contributions from all sides of the House they were at pains not to undermine the Garda. Even at this 11th hour of the Bill to infer that is most unfair and I would ask Senator Loughrey to read the full record of what has been said on the Bill in this House. I think he will be impressed with the legitimate concern of people who opposed sections and put down amendments. They did not do it to undermine the Garda or to cast aspersions on anybody. They tried to have the best possible legislation passed in this House and that is the function of Senators.

The last contribution misrepresented what I said. I have not cast aspersions on the Garda and I do not intend to. I realise and I put it on record for the third time that those Members who either opposed the Bill by voting against it or spoke critically on aspects of the Bill——

It is the third time you have said that.

It has been questioned for the third time. That is why I want to say it for the third time. Those people's reasons were honourable and their reasons were justified. One of the most important things that must happen and should happen as a result of this Bill being passed is that there must be co-operation between the general public and the Garda. If I say that the Garda must earn it I mean that they must earn it. The Garda force have done this country a great service and some have paid the highest price for that service. That must continue. I can recall as a young man growing up, although I would not say I was terrified of a garda, I certainly walked on the other side of the road, as I did when I met the priest or the schoolteacher. That has been slowing down for some time.

It is a pity we have not some of them here tonight.

The most important aspect of the Bill will be co-operation between the general public and the Garda Síochána.

Somebody said something about passion almost spent.

I know you will be helpful.

I have only been suspended once and I know you suffered it more than I did. I will devote myself to the contents of this Bill. I have no fundamental opposition to the Garda Síochána and I will not even discuss any implied suggestion that I have. I have often recorded the fact that sections of the Garda Síochána are better at doing caring jobs than many professionals are. I have ample evidence of that. Nevertheless, the Garda Síochána do have a perspective on things in the same way that every profession has a perspective. I would not like teaching to be run by teachers, engineering to be run by engineers, medicine to be run by doctors or the law to be run by solicitors, because I think the capacity for detached analysis is lacking in such circumstances. I do not think law and order should be run by professional enforcers of the law. That is where parliament and the community at large should be supreme.

What this Bill represents as it stands and even as amended is the perception of the Garda Síochána and the Department of Justice about how to deal with law. It is regrettable that it is difficult to argue with the perception particularly of the Garda Síochána about what is lawful and what is proper and what is necessary without immediately being shifted into the camp of at least being hostile to the Garda Síochána, if not positively subversive. It is quite conceivable that the Garda Síochána are fundamentally and utterly wrong about what is needed to deal with the problem of crime. In terms of changes in the law, in terms of technical resources, in terms of professional expertise and in terms of their own training, they are fundamentally experts. In terms of the analysis that what causes crime, in terms of the analysis of what perpetuates crime and in terms of the analysis of how to respond to it, it is quite conceivable that a professional Garda force, because of their own inevitable perception, could be fundamentally and inexorably wrong. This Bill is what the Garda Síochána believe is a solution to the crime problem and I believe they are fundamentally wrong about the solution to the crime problem.

Central to the problem is an astonishingly sweeping power of detention and although there have been amendments, many of them welcome, and the Minister has responded well in many areas to amendments to this Bill at the centre is the power of any garda to arrest a citizen and take him to a Garda station with a view to detaining him for questioning. Every single member of the Garda Síochána with, whatever it is, ten or 12 weeks' training — which many Members and even the Minister by implication accepts to be inadequate — can assess whether somebody has committed an offence or whether they have reasonable cause as somebody committing an offence and can take that person to a Garda station with a view to having that person detained for questioning.

I have endeavoured — and many of us have — to tease out what reasonable cause means and to tease it out in a way which takes it out of the realm of post hoc judgments by the courts and put it into the realm of where the Minister has suggested it is which is a matter of objective judgment or some such term. I am not quite sure but he did use the word “objective”. The tragedy for me is that the “reasonable cause” term and the other related terms contained in this Bill are singularly lacking in any element of objective judgment and that is going to be the core of the problem with the implementation and the operation of this Bill. Linked to the question of reasonable cause is the whole role and nature of Garda questioning.

Never in the whole of this Bill have we had a satisfactory explanation as to why a third party should not be entitled to be present and there are profound social implications involved in question of a third party being involved because those who could afford to pay for it would have them but I do not believe that is the reason why we do not have a third party. It will raise a cloud of suspicion about what precisely it is intended to do under questioning if it cannot be done in the presence of a silent but independent third party. It will raise fundamental questions about what is behind it, perhaps not so much for those of us here who have the benefit of being able to view the State and the enforcers of law and order from a fairly reasonable and moderate point of view but there are many in our society who do not share that perspective. Many in that society are, in terms of their perspective, their perception and their aspirations, inadequately represented in this House.

I will put on record what I believe will be the direct result of what is in this Bill. Within a short period we will have a clamour to extend the power to arrest without warrant because we will be told that certain serious offences cannot be investigated because either the Garda do not have the power to arrest without warrant and therefore are not covered by section 4 of the Criminal Justice Act, or the penalties must be increased. Let nobody assure me to the contrary because I already know of a child of 16 who was a passenger, knowingly, in a stolen car and who is already subject to the provisions of this Bill because we decided to extend the penalty for car theft from six months to five years. It is now a far more serious crime in the eyes of the law to steal a car than to drive a car while under the influence of alcohol, a quite astonishing disorder of priorities in my view; a quite astonishing response to an immediate problem through a change in the law which will prove disastrous in the long term.

I think that is where we are going to move: pressure for further powers of arrest, pressure for larger sentences in areas where perhaps the power to arrest without warrant already exists. I await, fairly quickly, in the next couple of years the next campaign from the forces of law and order to extend other areas so that further things will be contained in a Bill.

I return, with no apology, to our children and the implications for them in this Bill. What I have said all through this is apart from my concern that this Bill may and perhaps will be abused by some members of the Garda Síochána and particularly the capacity for abuse when people are not charged and when there is not a court case. I repeat what I have said over and over again: nothing in this Bill can give assurance to people who are not charged because they will have to go either to a tribunal or to the courts to obtain justice. Many of the people who will be the victims of this Bill will not have the will or sometimes the capacity and in most cases the resources to do that, particularly financial resources.

That is why I talked so much about our children. I think there is a perception of wild young children running around this country who need to be brought under control and which is implicit in a number of the things that I have said about the need to incarcerate children between 12 and 17 in section 4 of the Bill and children between 7 and 17 in the remaining provisions of the Bill. It is regrettable that this legislation will produce profound alienation in children. I say this without considering the possibility that the powers will be abused but simply because a perception of the Garda's relationship with children will develop or will be extended beyond that which already exists, and the argument that because there is already some provision under section 30 of the Offences Against the State Act that somehow ameliorates the significance of the Criminal Justice Bill escapes me entirely.

It is a reality and one that we have not addressed in this House at all in any significant way that there are increasing and large sections of urban Ireland where the Garda are not seen as part of the community: they are not seen as allies but are seen to some extent as oppressors. The present Garda Commissioner adverted to that in a very incisive and perceptive speech some years ago. I think he and I would probably take a very different view as to why that is the case, but we agreed and we still agree on that.

The public will see this Bill as a blunt instrument in its first application because whatever the merits of the checks contained within the Bill what the public will experience is arrest and being taken for detention. While thee are no new powers of arrest contained in this Bill there is a certain technical distinction. There are no new powers of arrest but it appears to me that the powers of arrest without warrant are considerably extended. Currently the powers of arrest would be when a garda could reasonably hope to bring charges against somebody. We have now diluted the definition so that a reasonable suspicion is sufficient, whether charges may or may not result. The ultimate result will be that while there will be far more arrests without warrant and not just in a successful attempt to deal with crime and to bring criminals to justice but because something else can be done, the intermediate step between arrest and charging. What would concern me, and has concerned me since this Bill was first published, is the evidence that those powers, as with all Garda powers, as with all the powers given to all the forces of the State, will be used in a particularly oppressive way against the poor and the marginalised in society.

You cannot have it both ways. Either crime is related to poverty conclusively and we accept that, or else it is not. A large body of society says that crime is not related to poverty. Then the question that must be asked is why are our prison population predominantly poor; why then are they predominantly unemployed, illiterate, many of them innumerate and from broken families? If poverty does not cause crime it must be because the law bears unevenly on the poor. If poverty is not a cause of crime, then there should not be more poor people in prison than anybody else. If there are proportionately far more, then it is either because poverty causes crime in which case they are effectively not guilty because we have created the poverty, or it is because the law bears unevenly on the poor. You can have your choice. I happen to believe the former because it is more acceptable than to say that the law bears unevenly on the poor. There is some evidence for the former. The alternative is available, that it is because the law bears unevenly on the poor and because the crimes of the well off very often do not result in their being detained in prison.

I think the possibility of how this Bill will operate has created widespread suspicion. It is regrettable that we have not listened to the extraordinary range of objections not, I emphasise, from dogooder liberals but from organisations and people who are firmly implanted in those areas where crime is highest. It is not the priests from Foxrock and from similar wealthy parishes who are leading the church campaign against this Bill, and it never has been: it is the priests from the inner city who have lived with the crime problem, who have experienced the sort of things that we have had described to us — they are the people who have led this campaign; it is the voluntary organisations who deal with the consequences of our criminal procedures, the consequences of the appalling way we have treated young juveniles in the past in places like Letterfrack and Daingean.

They are the people who have spoken most loudly and they are the people who suffer from our crime rate. They are people who suffer because they experience the escalation of violence. They have experienced the escalation of other forms of crime. They are not talking from the slightly protected environment that most of us live in. They are talking from the reality of being in the front line of experiencing the problems of crime that we are talking about. Therefore, they are in some ways more expert and more knowledgeable than we.

Because of this Bill and the way it introduces the power to detain for questioning — and I make a confession here that will shock many of my allies in the campaign against the Criminal Justice Bill — I can envisage the possibility of detention for questioning in certain serious crimes. It has been said by members of the Garda that in the case of rape, for instance, it is very difficult to investigate an allegation of rape if you cannot detain a suspect and do various tests. That seems to me to have some validity, but if the intent was to deal with the specific example that has been used to justify this power of detention then this power of detention should refer specifically only to those examples. It covers an enormous range of crimes. The conscious or unconscious intent behind it is manifestly demonstrated by the decision to include car theft among the crimes for which people can be detained.

This Bill, as it is constituted, all the amendments notwithstanding, all the effort that has gone into it from various people notwithstanding, represents a useful compromise between all the groups who basically agree that this Bill is necessary and have simply got a useful and worth-while discussion going about how to make it safer. It shows nothing of the input of the admitted minority in this House — Senator Loughrey was right — and probably in the country who do not agree with the basic provisions of it. I am not saying that because we disagree the basic provisions should have been changed but the proposals, amendments and suggestions that came from that section of society which does not agree with the principle of this Bill represented a genuine attempt to incorporate about the legislation our concerns about the Bill and attempts to alleviate them.

I have mentioned the question of "reasonable cause" over and over again. The fact that this Bill has no definition of "reasonable cause" is a matter of great concern to me. I am concerned that it will apply in a particular way to minority groups. I have raised the issue of prejudice among the Garda which is as true there as it is in Irish society. I have produced a specific example which shows that the travellers of south Dublin are already, obviously, under reasonable suspicion by a senior officer of the Garda.

It is regrettable that the amendments that have been accepted, while they will make those who are unhappy about the operation but in favour in principle, a lot happier, many of us who have fundamental objections to the Bill put forward amendments and tried both in this House and in the other House constructively to incorporate them into legislation that we found objectionable and, as I said before, that I find loathsome because of what it says about Irish society. I regret that those efforts did not meet with a greater response. I have said repeatedly that this Bill will increase the boundaries of marginalisation, it will increase the boundaries of alienation and it will produce a larger alienated and it will produce a larger more than any intellectual concern of mine, and more than any liberal instinct of mine, or any socialist instinct of mine, is what is at the centre of my objection to the contents of this Bill. I do not think in the way it has been handled in the Oireachtas, in the way that amendments have been concerned, that the problem of alienation from the State and from the agents law and order that will spring from this Bill has been accepted because I do not believe that the Minister, or the vast majority of the Members of this House or the other House, believe that it is going to happen.

I am satisfied that on the evidence, and the record of what has happened in other countries with the police, it is going to happen here. It is regrettable that we have had the opportunity through this Bill and through the debate on it to try to meet that problem and fear which are consequences of urbanisation followed by mass unemployment on the scale we have. We did not meet them and this Bill will be a recipe not for a reduction in the crime rate but for an increase in crime of a different kind, crimes of alienation and various other crimes. It will not produce the improvement that people have suggested. Other countries have had powers like this for years and they also have serious crime rates well in excess of ours but not very high rates of solving them. The power of detention will not change anything because it did not change anything anywhere else. In the fragile nature of our society, with the population structure and the age structure we have it will increase and extend alienation.

The final, and most frightening fear I have — I do not say this to be sensational but because it represents what is a proper understanding of Irish society — is that if there is profound alienation of Irish society and if it is extended and directed in a particular way against the Garda as a result of this Bill, is that there is a political organisation in this country perfectly willing and able for its own ends to exploit that and to offer an alternative way to people to respond and to deal with their alienation. We have a regrettable tradition of violence in this country and this Bill in the way it will create further divisions will offer opportunities there. We should have been drawing people together. We should have been drawing communities together.

This Bill, unfortunately, will do the opposite. It looks to me that we now have to take our opposition outside this House and into other areas. I hope that when and if we set up organisations to monitor the operation of this Bill that we will not be branded subversives in the way that those who have attempted to monitor the operations of the Offences Against the State Act have been branded. It is our democratic right to continue to oppose something, even if the Oireachtas passes it. If the Oireachtas passes this Bill I am bound in law to obey it but I am not bound to agree with it. I am entitled to continue to object to it and to make every possible effort to have it repealed, amended and sections of it withdrawn. That I intend to do continuously and, hopefully, in four years time when the review comes with a bit of luck I will still be here and continuing my objections. It represents the wrong direction for Irish society. Instead of bringing people together it will create divisions and it will create and exacerbate the division particularly between the rich and the poor and the division between large sections of poor urban communities and the Garda who should be on their side. After all, the citizens of poor urban communities are very often the major victims of crime. Instead of protecting them this Bill will further exacerbate their problem.

I should like to reflect strictly within the terms of a Final Stage consideration on this Bill. In doing so I should like to say that the concern of people like myself for the impact of this Bill have been about the Bill as an instrument in dealing with the crime problem. I recognise that fear of crime is widespread in the community. In my Second Stage speech I made the point that I am aware that working class victims of crime suffer more than middle class victims of crime. This is strictly sticking with the Bill. The departure point of my own critique of this legislation was that I felt it was based on a misconception of the nature of the crime problem. This misconception of the nature of the crime problem stemmed at its root from the forms of analysis of the crime problem. That is all over. I respect the right of people to differ in their approach towards crime. There are differences that it is far more honourable to emphasise rather than to disguise. One approach in understanding the crime problem of modern European states is to suggest that there has been a breakdown of individual moral control and appeal back to individualism and soon. My view of crime, which is based as much on political motivation as it is on the basis of studies, is that this is a misconception, that crime cannot be understood except in its wider social setting. I have to look at the Bill in terms of its impact on a total social setting and, within the social system involved, on its particular application to those who will be affected by its provisions.

I would be very dishonest in relation to this House if I were to suggest that all my experience is such that in pursuing the roots of crime the structure of our enforcement process, the structure of our vigilance is directed disproportionately towards some sections rather than others. This, in turn, involves certain conceptions not only about the nature of crime but where it is located. I do not intend to wander off my Fifth Stage speech by giving a long dissertation on all of the forms of anti-social behaviour which are not regarded for sanctioning purposes within society at present. On Report Stage we were discussing different forms of gains from indirect proceeds from a crime which arises under the Bill and I made the remark that the Revenue Commissioners should be given the powers we were talking about, but of course the withholding from the State of resources that should rightfully belong to the State is not regarded frequently with the opprobrium with which it should be regarded. I am not going to individualise the argument in such a way as it would be set out in a textbook, comparing the position of somebody charged with shoplifting and who has spent some time in Mountjoy with that of someone who was involved in an elaborate fraud. Neither am I getting involved in what I might say is the casuistry of a very distinguished Member of the other House who draws the distinction between mortal and venial sins in this regard.

To summarise this basic argument, I frankly think that white collar crime is something which does not appear in the statistics, against which adequate sanctions are not addressed and which does not properly incur the opprobrium of the population. In fact our lack of moral evolution — if I might fall back on a category of explanation not usually associated with me — to my mind is that the crass individualism and the forms of property-based society we have serve as an obstacle to enabling us to go to the point where we would see in such anti-social behaviour the criminal activity that it is. If that be the departure point, I want to say that my criticisms of the Bill then were heavily influenced from a socio-economic perspective and as it will be experienced by those who will be the people at the other end of its provisions.

I said I was influenced in a secondary way by a civil libertarian argument. The civil libertarian argument as it approaches the specific measures of this Bill will be in terms of how the rules have changed. It would always be insufficient in my view because it would assume that the perceptions of the rules being changed was equal throughout the entire society. something that all of the evidence suggests to us is manifestly not true. Therefore, the protection which the civil libertarian will offer to the person who is the victim of new measures improperly applied is never adequate. But of course what we are concerned with as legislators is the protection of the groups to whom the Bill will be directed, if properly applied, in its terms as discussed in this House.

This brings me to another point I want to clarify and I want to clarify it very explicitly. Those who have opposed this Bill — they have been many different group — have had their own diverse motivations. I certainly want to dissociate my own critique, developed not only in this House but outside, from anybody or any organisation who have chosen to pursue their campaign against the Bill in terms of questioning the personal motivation of the Minister given responsibility and so forth. I want very explicitly to place that on the record and to say that I have, in the whole nature of my political practice, never been but appalled by the prosecution of personalist arguments as a substitute for genuine political argument.

That having been said, equally, I think it was very unfair throughout the debate to suggest that those of us who are critics might find our remarks being construed as an attack on the Garda or as concern for the welfare of criminals and a lack of concern for the victims of crime. I know exactly the structure of the arguments that suggest this. "While I am not saying this is true, nevertheless it may arise as a construction", as one might say with a little help from our friends who would be willing to accept the absolute sincerity of our motivations. I am glad that the record has been cleared because people who have spoken against the Bill were concerned — for example, Senator O'Leary — about it as a piece of legislation and the changes it would make in the criminal law.

I must say that question deserves mention on the final stages of this Bill. In relation to the Joint Programme for Government, agreed between the Labour Party and the Fine Gael Party in December 1982, it is very important to note on page 23 of that document — which is available in the Library — one of the paragraphs which states:

A judicial inquiry will be established into allegations of political interference with the gardaí, with terms of reference governing the past three years and a remit to recommend any necessary action to ensure that such interference cannot take place in the future. In any event a Garda authority will be established whose functions will include recruitment and promotion of gardaí. An effective independent complaints procedure will also be established to safeguard both the public and the gardaí, who are often subject to false allegations. Linked to these reforms legislation will be introduced immediately to strengthen the criminal law. There will also be legislation to introduce community service orders for minor offences and steps will be taken to increase the number of Garda man hours available to prevent and detect crime.

My construction of that paragraph as a statement of intent is that reform of the criminal law will be carried out and I refer again to the words, "legislation will be introduced immediately to strengthen the criminal law..." I have no doubt whatsoever that the Minister very sincerely believes that this Bill — which will be passed by the Oireachtas no doubt — does indeed strengthen the criminal law. I would argue that one could construe from these paragraphs — in so far as there is not an explicit reference to, for example, the introduction of powers of detention for the particular purposes as they arise in this Bill — that no such wide sweeping powers were envisaged. For example, I do not see in that, or in the manifestos of my own party or of the Minister's party, any reflections back to the justification for the prototype model of legislation like this — if I might refer to it like that — namely, the Bill introduced in 1967. For that reason one could reasonably assume that such reforms in the criminal law, as were envisaged in the joint programme, could be ones which might perhaps begin, as the Bill indicates in certain places, with reforms in trial procedures and so forth.

To make a long matter more brief the focus of opposition to the Bill has undoubtedly centered around section 4. In its passage through the Dáil and through this House a number of changes have been made. Again, I would like to place on the record that it is the mark of a Minister concerned for legislation that the or she is amenable to suggestions that have been made by way of Committee. I acknowledge the amendments made in the Dáil and the amendments which have been made in this House, some of which are worthy of mention. Certainly the insertion of a duration clause made in the other House was very important even though there are very powerful differences in this House. I worry about the principle of continuous review which was not accepted and, equally, there is a fundamental difference of opinion between myself and the Minister and the supporters of this Bill in relation to the period of four years which is suggested.

Another amendment which is very important is in relation to the integration of the complaints procedures and the regulations in the main body of the legislation itself. Here there may be a difference of opinion as to the necessity for it. As far as I am concerned that was a very necessary step because at the end of the day the instrument that will be the Criminal Justice Act, 1984, — if we are to go by voting trends, to use a popular phrase — has to be judged as an integral document. If I have any regret in relation to my being a Member of this House ten or eleven years ago it is that I would regard myself as having been at an early stage seduced by the arguments that you can take guarantees that are offered on the day in relation to legislation: in that context I am speaking of emergency legislation. I have learned not to trust these guarantees from whomever they may come. As a legislator you vote on the document before you and it behoves you to change it and improve it, to accept it or reject it.

I welcome the response of the Minister in agreeing to the complaints procedures and to the regulations being a substantive, integral part of the Bill itself. My objection to the Bill has been that I felt it was extending my point about being a misconception of crime. My first worry I have already stated. It is in terms of its impact and its perception among certain socio-economic groups. Here there is no point in my being assured that these are unreasonable words. Remember rather, to take up Senator Loughrey's point, it is important how things will be perceived. It is important, if you follow that logic, to look at how this Bill will be perceived in the areas to which it will be applied. It has the potential for massive misconception and will be seen as an instrument of a State which is not perceived as one which offers participation to everybody equally. The case has been made that the vast majority do not need convincing any more as to the connection between the poverty rate, the unemployment rate and the crime rate. I have to use the word "rate" because I have failed over ten years to convince people of that.

What is important to realise is that equally as significant as the connection between the socio-economic conditions of the people at whom this Bill might be directed most is their perception of their participation in society — a point not sufficiently made. If you do not continue in the formal educational system and you find yourself, for example, more than average in your neighbourhood or in your family being apprehended for particular offences and perhaps you are released and the procedures are always correct, your view and perception of the State is different from those who rarely, if ever, find themselves in these circumstances. You must think of that as the atmosphere in which the Bill will find itself being applied. I did, and more than once in the course of this long debate I made the point that I acknowledged the alternative approach that already exists within the juvenile liaison system by the Garda, to whom I give credit. The Minister thanked me for that, to his credit. This could not be repeated enough. That is the road to go, but I must emphasise my profound belief that this Bill can do little else that alienate the community from the enforcement authority and, in that, not contribute to reduction in the crime rate. I could be more specific and say it is not likely to improve a present unsatisfactory detection rate, be it in terms of general crimes of 34 per cent or whatever and of larceny of 26 per cent.

My regret about the debate is that, unfortunately, the detection rate has been confused regularly with the crime rate throughout the debate. The problem of crime was so confused in many cases. The more emotional arguments in favour of this Bill were made in terms of the problem of crime as it might even notionally affect elderly people living alone, whereas perhaps we did not address specifically and more precisely the details as to why the detection rate is so low. Several Senators did try to address that problem.

My other point is in relation to the civil libertarian framework which can be included in my general critique of the Bill on social and economic grounds. I would suggest that a majority can often demand what is manifestly wrong for the minority. I would suggest further than that, that it is up to the Legislature to resist that. Equally I would argue that in bringing in measures which may be popular in the short term but which may be based on demand and response, on a profound misconception of the nature of crime, the majority damages itself as well as the minority being damaged. This is my point about the alienating effects of the Bill.

I argue that the criminal legal system, for example, is something which has been established essentially within a conservative and libertarian ethos. It assumes that everybody has the capacity to appear equally in court, to equally play all the rules effectively. There is no evidence to suggest that this is so, but in so far as it exists — and this is relevant to the Bill — it exists principally by its two key elements. The first is the right to silence and again the exclusion of the original section 16 was an assistance in that regard, but one could argue that it is the effective right to silence which is changed by some sections of the Bill. The other is the key notion of the presumption of innocence until proved guilty. Those which, for example, proceed from an arrangement by which detention can be used to gather information and the clear, not notional, effect within the provisions of the Bill that the persons will give such information as will be required to vindicate themselves from charges that will be made, are a reversal of a fundamental principle within the criminal law. No attempt was made to disguise that, but it was argued that we need to give these away in order to deal with the crime problem. One speech after another suggested that we have got the balance right now. I agree——

An Leas-Chathaoirleach

Senator, I do not like to interrupt you, but I wish to bring to your notice as a parliamentarian of long standing that a Second Stage speech is not allowed.

I thank you for your direction. I will try to confine myself entirely to what is in the Bill and its impact. If I have strayed, I regret that and will try to focus my remarks more directly.

An Leas-Chathaoirleach

We all do it at times.

I regret — and enough has been said about it — the manner in which this Bill will affect people under the age of 12. Let me make a clarifying point here and it is by way of that section of the Bill. I was interested in the Minister's suggestion that the debate on the age of criminal responsibility might be anticipated by the debate on the very late amendments to the Bill, such as Nos. 17 and 18. I am very concerned about that and would like to think that in accordance with my suggestion of the age of criminal responsibility, sections 15, 16, 18 and 19 of this Bill would apply to people not under the age of 15. I would not want to prejudge the debate about the age of criminal responsibility because I would not like to think that I was biasing my own argument which would be inclined — the Minister asked me this in one of his interventions in the debate — to the age of 17, which would be my own choice. I want to place that on the record of the House.

In relation to the amendments providing that certain sections of the Bill will not come into effect until the regulations have been made and approved by the House and the complaints procedure established, I was glad to see that the volume of the regulations is substantial at this stage and it exists in its first draft form. It is important that these regulations be now very comprehensive. Here again let me warn about a misconception that can arise from the interpretation of certain sections of this Bill. Those who are in favour of adequate safeguards in the regulations and those who want a comprehensive and independent complaints procedure which is referred to here, are not lifting themselves out of responsibility to the wider public and accepting some kind of partial view of society living within the mind only of the accused person. The people who do that are interested in the quality of the law itself. I am sure, at the cost of greatly boring people to death, in this, that the criminal law exists very much more for the protection of the innocent than it does for its punitive purposes of allocating sanctions for certain behaviours of a criminal kind. In its practice, great attempts were made not to dissociate this Bill from the nature and practice of the Offences Against the State Act, particularly section 30. I hope that as it is applied in all its sections it will set up such an atmosphere of vigilance that it will spill over into the area of that other Act and its sections as well.

As an instrument, and despite all the disclaimers to the contrary, in my opinion it will stand on its own as an approach to the crime problem. It does not stand alongside massive redistribution programmes; it does not stand alongside significant interventions into the economic or social experience of the poor; it does not much stand alongside extended community provisions in areas of known high crime rates, but if put into practice as it now stands it will stand on its own.

The Minister was anxious that it stand in the context of an anticipated Children Bill. I hope that the children's legislation will come quickly so that it can be judged in that context and that the protective measures can be built into the legislation as it affects children and that will mitigate it, but I have to judge it on its own. I see this — particularly section 4, its new power of detention, which so changes the criminal law — in relation to the way in which it has not been amended in its impact on so many groups that I believe are inarticulate. I refer to people who often do not know their rights and, most importantly, have had little experience of justice and in their not experiencing justice have become suspicious of the legal enforcement process that frequently serves as an ally or instrument of a society that perpetrates injustice on them. I believe that in relation to most of the other positions and in relation to the sanctions that may now fall on many people who may find measures directed at them, and who may later find themselves vindicated as totally innocent, it will be seen as an instrument outside of themselves and, therefore, it will be seen as the principle of alienation. I hope I am proved wrong in everything I have said, but it would be simply dishonest of me if I did not say that.

I appeal again to the critics of those of us who wanted to oppose legislation of this kind, who stand for a totally different approach to handling the crime problem, to understand that we are concerned about the crime problem not only in terms of its victims — it might sound even a more vague suggestion to make but it is one that I know to be true — but in many cases criminals are damaged themselves by the crimes they commit. There is no crime of violence for example that does not harm only the victim, it damages the person involved in violence as so many of us know. I respectfully ask for a more comprehensive treatment of the crime problem.

Those of us who have opposed this Bill do not set out as the opponents of the Garda. We have acknowledged the work of the Garda in relation to the community, and particularly in relation to juveniles but nobody should be immune from the criticism that is necessary when powers are given of perhaps an inordinate kind in an atmosphere that is charged with so much social deprivation and so forth.

For all these reasons I ask the Seanad to understand what this Bill involves. I cannot convince people more than I have done so far, but I feel that the Bill is based on a misconception of a problem, that it is the wrong instrument, that it will, I am afraid, be counterproductive, that its products will be alienating, rather than contributing to the solution of the crime problem. For these reasons I felt it necessary in the first instance to oppose the principle that lay behind section 4 and later to seek to mitigate the impact of this Bill — and I am grateful for the common ground discovered between the Minister and ourselves and I have acknowledged that but as it stands, as our instrument in 1984 for approaching the crime problem, it will be judged by its impact. When we go looking for the justification for it as an instrument we will be found wanting because it came out of an atmosphere of a lack of understanding of the complex problem of crime and its social setting, it was very much in the nature of a reaction rather than a contribution to the elimination or reduction of the crime rate and the rate of detection and perhaps in the end the solidifying of such social bonds as are necessary, and the forging of new connections between communities so as effectively to prevent crime before it is commissioned.

It is always very difficult to speak after Senator Michael Higgins. After a performance like that who can possibly shine? Despite the changes in the Bill, I continue to feel it will not achieve what clearly it was intended to achieve, and what I am convinced the Minister is sincere in intending it to achieve, that is, preventing and reducing crime in our society. I acknowledge fully that the Minister has made a great many amendments to this Bill both in the other House and in this House and in that context I particularly acknowledge his amendment which allows for the complaints procedure to be brought in in a coterminous way with the other sections. That is an important advance in improving the situation brought about by the Bill. Nevertheless, I continue to feel that section 4 and the following sections are not going to operate in the way the supporters of the Bill hope.

I agree with other Senators who feel that, in a country where we have already a considerable degree of deprivation and a high rate of unemployment, coupled with a very large number of young people, this kind of measure will tend to drive a wedge between those who wish to enforce the law, those who are trying to enforce the law and the young people, particularly in our cities and towns. This is more damaging than any good that the Bill can possibly do because if society is to survive in a reasonable fashion, one of the most important things is that there should be a general consensus of respect for the law and for those who enforce the law.

Tragic events in Northern Ireland for instance have shown quite clearly that where a community is alienated from a police force that police force becomes ineffective. I am very concerned lest this kind of ineffectiveness may move towards the Garda Síochána, a force which up to now has generally commanded very wide public respect. I am not using this opposition to the Bill as an opportunity to attack the Garda; I do not wish to attack the Garda. It is simply that I feel this Bill is not going to give those who support it what they think it will give them. I do not think the end result will be the end result we might wish for. In particular among the amendments that were moved both on Committee and Report Stages, I am concerned that the amendments, excluding the application for the various sections with regard to people under 15 years' should have been rejected because I still remain very concerned about what will happen to children of this age. They are still children as the various sections of the Bill apply to them. In my opinion in this context the Bill will not achieve what it is trying to achieve.

Over the last few years there has been a public perception — whether backed by the facts is open to question of a large increase in crime and an increase in public fear of crime. It is obviously something that any responsible government will want to do something to meet and I can see that that may have been the purpose in bringing in this Bill.

As I said on Second Stage, this begs the whole question of what we do about crime and how effective measures will be. Even if we have a higher rate of detection and commit more people to prison, what do you get at the end of that? Is this really an effective way of dealing with the situation? As a response to public fear and as a response to what may have been seen as a demand for more law and order legislation, this Bill will not achieve what it sets out to do. Unfortunately, it will tend more to alienate large groups of our population than it will add to the safety and happiness of the population as a whole.

An Leas-Chathaoirleach

Would the acting Leader of the House indicate if we are going on? I should like to facilitate the House and the Minister.

The Minister has been very patient with us. I did not envisage that there would be so many contributions on the Final Stage, I would prefer to finish and I ask the speakers to be as brief as possible to allow the Minister to reply.

I should like to make a correction within about a minute and a half, so my contribution will be very short.

Mr. Kelleher rose.

An Leas-Chathaoirleach

I appeal to you to remember the remarks of your acting leader.

I will be as brief as possible. I intend to speak in support of the Bill. The Criminal Justice Bill, 1983, is the first serious Bill to tackle the problems of crime and the powers given to the Garda are necessary to enable them to carry out the difficult task of combating crime. Change in the criminal law in Ireland is not a new subject for debate. As far back as 1967 there was pressure for a similar Criminal Justice Bill to be introduced in the Dáil. The Bill fell when there was a change of Government and was not reintroduced. There were opportunities for other Ministers for Justice in the intervening time to introduce the Bill but because of the sensitive nature of such a Bill they did not grasp the nettle. I congratulate the Minister for Justice for his courage in bringing this Bill before both Houses of the Oireachtas. I intend to deal with a few of the sections briefly.

Section 4 is one of the most controversial sections in the Bill. It has been debated at great length in this House during the last few weeks. The reason for this Bill is that the Garda for years now have been severely restricted by the existing law in carrying out their investigative duties. If the Garda are to be successful in investigating crime they need the powers of detention. It is ludicrous to think that at present when a garda brings a suspect to the Garda station to help them with their inquiries he may not detain him for questioning. Up to a few years ago the Garda were detaining suspects in the belief that they had such power. In The People v Shaw the net effect of this judgment is that the Garda are not entitled to arrest or detain a suspect for the purpose of securing evidence. The provisions in this Bill empowering the Garda to detain persons arrested without warrant on suspicion of having committed a serious offence are intended to restore the position to what it was thought to have been. The Bill does not give the Garda any new powers of arrest. The power to detain suspects for a reasonable time so as to give the Garda an opportunity by questioning or checking out a story is essential if we are to tackle the serious crime situation. Section 4 (3) provides for a person to be detained without warrant for questioning for six hours which can be extended for a further six hours by authorisation of a chief superintendent. No questioning can take place between midnight and 8 a.m. At the conclusion of the detention period, if there are no longer any grounds for suspecting that he has committed a crime, the suspect must be released. This section is necessary to enable the Garda to carry out their functions.

Under section 5, a solicitor and another person must be informed that if the persons detained are released they cannot be rearrested for the same offence unless by the authority of a district justice.

Section 6 provides that——

An Leas-Chathaoirleach

You cannot go through the Bill section by section on this Stage.

My understanding was that I could speak on the Final Stage on what was contained in the Bill.

An Leas-Chathaoirleach

You cannot take section by section on this Stage and do not take advice from your colleague sitting beside you because he broke every rule while I was out of the Chair. He came in making the speech I stopped him making last week.

The Bill as a whole is a good one but on its own it will not solve the crime problem in Ireland. The community have a big part to play. We need total co-operation with the Garda to help them in their efforts to tackle crime. Since the debate on this Bill started there has been unnecessary criticism of the Garda. There are 11,400 gardaí and 99 per cent of them are doing an excellent job. Some of them even lay down their lives for that job. Politicians have a duty to support the Garda. I was not surprised, because of some of the statements made by politicians in this House, to read in one of the papers about concern expressed by the General Secretary of the Association of Garda Sergeants and Inspectors, Mr. P.J. Rogan, regarding lack of support for the Garda.

That is another outrageous allegation. Everybody in this House said they had regard for the Garda. That is yet again an outrageous suggestion. It is indicative of the fact that Senator Kelleher was not in the House during most of the debate and is getting his information about this House from the newspapers.

An Leas-Chathaoirleach

Resume your seat. Senator Kelleher to continue.

As I was going to say before I was rudely interrupted, the Bill is a good one. With the full co-operation of the community, I see it differently from Senator Ryan. I see it going a long way towards solving the crime problem.

I support the Bill and compliment the House for giving the measure a very thorough examination. Every Stage of this Bill has got adequate time, there were no restrictions, there were very full, in-depth debates right through. Senators O'Leary, Michael Higgins, Durcan, Brendan Ryan, McGuinness and many more spent a lot of time debating the Bill and the Minister was most patient, and what he has now is an improved Bill. It will improve the letter of the law, and the extensive debate here has clarified the spirit of the Act, as this measure will be when it is passed. Of course I do not believe in all Senator Brendan Ryan said but I am indebted to him for drawing my attention to something I said during the course of my Second Stage contribution, reported at column 397 of the Official Report of 19 September, when I inferred that crime was synonymous with poverty.

I do not accept that and I do not believe it. I am sure I did not intend to say that. As a full time politician for the last 26 years I have worked with every section of the community and I know that is not the case. I would not like to have this important debate concluded and leave that kind of misconception on the record. I believe that what the Minister has steered through this House so expertly over the last number of weeks will give the Garda and the Judiciary, the people who are charged with administering the laws of this country, greater capacity to carry out their duties to protect the weaker sections of our community. It will, perhaps, assist the Garda in detection and will make them that little bit more efficient in combating modern criminals. That is a significant step forward. I look with confidence to the Garda and the Judiciary being in a better position to carry out their duties, having the Criminal Justice Bill of 1983 to help them.

I do not look at the measure in the way some of my colleagues in the House have expressed themselves. After listening to most of the debate I hope that the Minister might avail of the opportunity not just in four years but next year to come in with a general review. Perhaps we could organise a debate on the Annual Report on Crime presented to us by the Commissioner of the Garda Síochána. I think that would be an appropriate vehicle through which to monitor not just this legislation but the way in which the various powers are being handled and used by the Garda. I have every confidence in the Commissioner and the force and every sector in the law enforcement area. Indeed today it was impressive to see the prison officers. It is the first time I have seen them parade, a very fine body of persons. It gives one confidence in the institutions of the State when one sees that fine type of personnel who work for the State and with the State in the interests of ordinary law abiding citizens.

I feel happy tonight in the Seanad after concluding this legislation. The Seanad has given very open and full deliberation to this important measure and as it leaves the House I think it has been improved. I compliment the Minister for the very dedicated and patient way he has listened to the debate and acted on it. I am sure the Department are definitely in safe hands. He has been more than kind in accommodating the Members of the House over the past number of weeks.

I will not detain the House for as long as I detained it on Second Stage. There are just a few things I would like to say. First of all, it would be wrong for me not to thank the Members of the House who were so kind to me during the course of the consideration of this Bill, particularly my former colleagues, Fine Gael Senators and, of course the Fianna Fáil, Labour and Independent Members. It is right that I should place on record the attention which the Minister gave to the Committee and subsequent Stages of this Bill. It showed the co-operation between the House and the Members of the Government at its best during that period.

Very briefly, I just want to say that many of my friends chide me that I made a mistake in not getting involved in the controversy on this Bill at an earlier stage. Here is the difficulty; this is the only place in which I have a mandate to speak. I have a mandate indirectly from the people to speak in this House: the people, having taken the Constitution upon themselves, allowed the Taoiseach to nominate certain Members to the House. It is only in this House that I have a mandate. I am different in that way from other public representatives. That is the reason.

There are just a few points I would like to make on the Bill and in particular on section 4. I do not intend to go through section 4 subsection by subsection, but to look at it in its global effect. I intend briefly to dwell on a number of unresolved problems with regard to section 4 and things that might be yet put right with the Bill. Article 40 of the Constitution is the great Article in the Constitution. I would like just briefly to examine whether section 4 as about to be passed by this House is in accordance with that Article.

I do not intend to go into any great textual analysis of it, but it is important that we should consider whether the legislation we are passing is in accordance with the Constitution. Article 40.3.1º provides that the State guarantees in its laws to respect and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen. Does this Bill do that? Are the rights of the citizens vindicated in the way in which we are proposing to enact this Bill and in particular with regard to the detention provision in section 4? It is our duty to consider that because obviously we have to consider whether to enact this legislation. It may be the duty of other people to consider it as well.

Article 40.4.1º provides that no citizen shall be deprived of his personal liberty except in accordance with law. It is under that extraordinary simple and direct statement that no power has existed until this to detain a person suspected of a crime, save in respect of crimes falling within the ambit of the Offences Against the State Act.

Whether the marrying together of these two great guarantees in the Constitution in the context of the Bill as it is proposed we should enact it falls within the range of options open to the Oireachtas in making laws is a matter for the President to decide, and it is a matter for the Supreme Court to decide in the event of the President deciding to refer the Bill to the Supreme Court. I certainly am not going to offer any advice to the President on that matter — no doubt he will be well advised himself. However, the matter does not rest there, and our duties and responsibilities do not rest there.

There is another way in which this Bill can be considered. There is another way in which we should examine whether or not it is appropriate to have it considered by the people. We should consider whether the powers contained in section 4 are so fundamental that they require to be referred to the people by way of referendum. There is a provision under Article 27 of the Constitution to do that in the event of a majority of Seanad Éireann and one-third of Dáil Éireann deeming it to be appropriate. That is a matter which each of us has an opportunity to consider during the course of the period of time between this Bill being passed in this House and coming into law by reason of the amendments which we propose to make being approved of by Dáil Éireann sometime during the month. That is a matter each of us will have to consider.

We have to decide whether to invite our colleagues to consider the application of Article 27 to this legislation.

Section 4, as it deals with detention, and section 5, as it deals with the access to a solicitor are the sections I have concentrated on right throughout this debate in this House. They are the ones that have been the most hard fought on the floor of this House and, without repeating what I said on Second Stage, no adequate case has been made for the introduction of these powers.

I said on Committee Stage — my view has not changed — that this Bill, if enacted, will in so far as it relates to the power of detention lead to great confusion in criminal trials. The length of ordinary criminal trials before a jury will be extended considerably. Extreme pressure will come on these and the Judiciary will be called upon to adjudicate on a lot of problems which will arise out of the application of section 4.

On the one hand we have the compatability of the legislation with the Constitution. On the other hand we have the practical effect of the legislation in the courts. Quite separate and distinct from that we have the atmosphere which this legislation will create in the State. It is with this atmosphere that I am most concerned. The enacting of the powers in connection with the detention of arrested persons will, in my opinion, give rise to considerable disimprovement in the relationship between the members of the Garda Síochána and the general public. I am not saying that this disimprovement will take place instantaneously. I am not saying it will take place overnight, but it will take place gradually over a period of time by reason of two things. First, the alienation of those who are involved in the detention procedures, particularly the alienation of those who are not subsequently charged with an offence, and the alienation of their relations and their friends by reason of that person's involvement. That is one bad effect that is going to follow from it.

Another equally bad effect will be the effect of turning the Garda Síochána in on themselves, making them an introspective Force, looking in on themselves instead of looking out to the community; making the police station a place of fear and a place of dislike in the community instead of what it should be, a haven of peace and friendliness in the community. In those two aspects, the alienation of the individuals involved on the one hand, and the priority which this detention provision will represent the Garda Síochána and the way it will turn them in on themselves will be the most foul effect of this legislation.

Some portions of this legislation have been amended through the Houses of the Oireachtas. I regret to say that the party which I have an honour of being a member participated as part of a triumvirate who coalesced together to get this Bill through the House. That triumvirate was Fianna Fáil, Fine Gael and Labour. It was unstoppable. We just could not stop it. The political parties should have stepped back from themselves, looked at the powers contained in this legislation and asked themselves: "Is this appropriate legislation on which to impose a party Whip?" I do not believe it is. I do not object to it being done, but I do not think it is appropriate legislation on which to impose a party Whip.

Is the Seanad really a place for political parties or is it a place where people will genuinely look at legislation from an objective viewpoint? We have no control over the finances of this country. There are vast areas of the Government which are never touched upon in the Seanad. We have no responsibility whatsoever in that area. There is no possibility of, say, the National Plan being voted on in this House or, if it is voted on, it will be in some innocuous way that the House takes note of it. It is the other Houses's responsibility. The Members of that House are elected directly by the people to look after that matter. Our responsibility is different. Our responsibility should be different and, while we might have party affiliations, we should be freed of the party discipline on this kind of legislation. It is irrelevant. There should not be a Fine Gael position on detention or a Fianna Fáil position on detention. The relationship between that and the Government of the country is too remote for it to be considered a defeat for the Government if the Bill is changed in any way. That is what the atmosphere here has been. It was a defeat for the Government if this Bill did not get through.

There are many Members of this House on all sides who would have voted differently had there been a completely free vote on this legislation. I am not blaming them. Maybe I blame myself for what I did, but it is wrong that there should be a party whip on something like this.

There are many fine sections in this Bill. There are many parts of this Bill that are badly needed and which will make a significant contribution towards creating the right climate in the country. The sections dealing with the offences committed while on bail are excellent sections. They are sensible. There are one or two problems which were discussed earlier today, but, by and large, the idea is good. The habitual criminal is given some incentive to obey the law. That is a very good thing. I do not know whether it will work, but it is certainly worth trying and while trying it nobody is being incommoded in any way.

There are other things with regard to trial procedures, electronic recording of questioning, and all those things, generally speaking, should be welcomed. The core and the heart of this legislation is the detention. Very briefly, I should say that the people who analysed and decided to oppose this Bill inside and outside these Houses of the Oireachtas and who decided to concentrate on those sections of the Bill which the Minister removed in Dáil Éireann made a tragic mistake with very severe consequences. I believed from the very start that the section of this Bill which would cause the greatest difficulty in the long run for the people was the detention provision because the whole concept of detention is so extraordinary, that we take a person who has been accused of no crime, on the merest suspicion of a member of the security forces and detain him at the pleasure of other members of the security forces. It is not compatible with our view of civil liberties.

Good things have gone into the Bill. The prospect of a review in four years time is excellent but will there be a Whip on when that review comes up in four years time? Are the Members of the Dáil and Members of Seanad Éireann to be whipped into acceptance of that legislation when it comes up? It is a funny thing that we in Fine Gael cannot successfully get through legislation which deals with sex because some of our own people and the Fianna Fáil Party together have a veto. It is the same way with Fianna Fáil. They cannot get through something which deals with criminal justice because we have a power of veto over it. If a Bill identical with this had come before the Houses of the Oireachtas when Fine Gael were in Opposition they would have voted against it to a man. We can only increase the powers of the Garda when we are in Government and when Fianna Fáil are in Opposition, just as we can only increase the civil liberties of people in sexual matters when Fianna Fáil are in Government and we are in Opposition. One of the ironies of the situation is that the only person who can bring about a reform is the person that you do not expect to bring it about. The only person who brings about something like this is a person from a party that have the reputation of being the haven of what used to be known long ago as the "wiggy wigs", the barristers. It is funny that it is only we who can change the civil law in this regard.

I have nothing further to say to the Members of the House. I would ask any Members of the House who disagree with the central core sections of the Bill dealing with detention to vote against it on Fifth Stage. By doing so they will be doing a great service to the country. I doubt that whatever the eloquence of Senator Higgins, Senator Ryan, Senator McGuinness, myself or any of the other people who have spoken on the same side with regard to this Bill there will be any change when the vote comes on Fifth Stage.

Limerick East): First of all, I would like to thank all the Senators who have contributed to this debate. Certainly from my point of view it was a very interesting debate and I thought there was a most searching Committee Stage. I have conceded a number of amendments but I think one of the main benefits of the searching debate, especially on Committee Stage, was that the public will understand it a bit better as a result of the debate here and in the other House than they understood it 12 months ago.

I know that the Senators who oppose the Bill here have genuine concern for the effects that the Bill will have or might have. I accept their bona fides absolutely and I accept what they have said came from genuine concern. It is part of the democratic process and this House should be as central to that process as the other House. On a personal level, I am very sorry that Senator O'Leary felt that on a matter of principle he had to vote against a section of the Bill. I would like to thank members of the press who covered this debate. Not being a Member of the House, it would be appropriate for me to say that the many excellent contributions made by Senators were not fully reported by the media but certainly that was not the fault of the press people who covered it here over such long periods of time.

I think the amendments which were made here and which were made in the other House have improved the Bill. Some of the amendments I conceded because I thought that they would improve the Bill. Other amendments I conceded because I thought that they would provide a greater consensus. I will now proceed, if Fifth Stage is passed here, with the remaining steps needed to bring the Bill into operation, first of all, the complaints Bill and then the regulations. As a result of the amendment passed by this House on Report Stage, it is written into the Bill now that the controversial sections cannot be implemented until both Houses of the Oireachtas have had an opportunity to discuss and ratify in one way or another the complaints Bill in the normal process and the regulations by positive resolution.

Progress is being made already in electronic recording. I hope that very quickly we will be able to move to field trials, to gain experience ourselves and not just depend on the experience of others in this area. There will be a full debate on the complaints procedure and on the regulations. Certainly I will have the same willingness to consider what Deputies and Senators have to say as I have had in this debate.

I believe that the provisions of this Bill are beneficial and I want the best possible legislation which will be of benefit to the community and which will be above challenge. I expect again that there will be very detailed and searching contributions made by the Seanad. I have confidence in the Garda, and the implementation of this Bill. I do not think anybody casts aspersions on the Garda Síochána here and anything I said about the Garda Síochána was more in the light of keeping up Garda morale than suggesting in any way whatsoever that the Senators were making attacks on the Garda, because they were not. I have also confidence in the Garda in their relationships with young people.

I would welcome a change in the age of criminal responsibility. This would have had been an easier debate for me to carry if the age of criminal responsibility was higher. I am committed to monitoring the operation of the Bill and watching it very carefully. We have argued about when a review should take place and I have argued that four years after the implementation of the Bill is the appropriate time. I also say now that I will not hesitate to bring in amending legislation before that time if the fears of the opponents of the Bill are realised and if the Bill proves to be defective. I will ensure also in the regulations that adequate statistics are kept because it would be impossible to review legislation like this on the basis of hunch or opinion, no matter how informed. The statistics will have to be kept and will have to be produced. I am committed to doing this.

I have not presented this Bill as an answer to the crime problem. I see it as part of a particular package. I see it as a response to the needs of the community and to the fears of the community. Senator Higgins in referring to this asked what was meant in the Programme for Government by saying that we would reform the criminal law. The former Minister for Justice, Deputy Mitchell, in 1981 was engaged in the consideration of proposals close enough to those which became the present Bill. There was no secret about the proposals that were under discussion. I remember a television debate during the election campaign and my two immediate predecessors as Ministers for Justice waving the text of the Bill at each other in the television studio. There was no secret about what was being proposed. There was no possibility that those who drew up the Programme for Government and those who accepted it were in doubt about the general provisions of a Bill such as this which was to be implemented.

Senator Higgins also referred to other aspects of that Programme for Government. It might be interesting to note that the Community Service Order Bill has been passed and will be implemented in the next court session as the staff are now employed. The commitment to have extra gardaí on the streets has been fulfilled. The complaints procedures is at its final draft stage and I should have it within a very short period and will certainly bring it before both Houses in this session. The regulations, which are very comprehensive, are at first draft.

For the last couple of weeks I have had the Assistant Secretary of my Department in charge of the Garda side looking, among other things, at how the United States and Canada, especially one particular state in Canada, make their arrangements for a police authority. Our mandate is for a full period in Government and the commitments which we have made will be fulfilled and I am not confining myself to the commitments of the Programme for Government. There will be substantial other changes in the law which I think will have a higher level of acceptance in this House than the legislation which we are now discussing.

When this Bill and the complaints procedure and the regulations about treatment of persons in custody are all brought into operation, it will be the most important development in criminal law and procedure since the State was founded. I think that will be so particularly in relation to the safeguards that are now being expressly provided by law, both by statute and by regulation having the force of law, for the protection of the interests of people who are in custody. This was never done by law before.

Senator O'Leary in this very comprehensive Fifth Stage speech suggested that there may possibly be a constitutional challenge. He quoted from Article 40 which he said was the heart of the Constitution, the Article of the Constittion without which the rest of the Constitution would not be the kind of document that we want it to be. He said that the State guarantees in its laws to respect in as far as practicable by its law, defend and vindicate the personal rights of the citizen. Then he went on to quote another section where he said that no citizen shall be deprived of his personal liberties save in accordance with law. He did not quote Article 40.2 which says "The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen." I suggest that that is what the Houses of the Oireachtas have done and that is what the Seanad is participating in if they now pass this Bill, as I hope they will. I would like to thank you very much indeed.

Question put.
The Seanad divided: Tá, 35; Níl, 7.

  • Belton, Luke.
  • Browne, John.
  • Bulbulia, Katharine.
  • Burke, Ulick.
  • Connor, John.
  • Conway, Timmy.
  • Daly, Jack.
  • de Brún, Séamus.
  • Ellis, John.
  • Fallon, Seán.
  • Ferris, Michael.
  • FitzGerald, Alexis J.G.
  • Fitzsimons, Jack.
  • Fleming, Brian.
  • Harte, John.
  • Honan, Tras.
  • Howard, Michael.
  • Howlin, Brendan.
  • Hussey, Thomas.
  • Kelleher, Peter.
  • Kennedy, Patrick.
  • Kiely, Rory.
  • Lanigan, Mick.
  • Lennon, Joseph.
  • Loughrey, Joachim.
  • Lynch, Michael.
  • McAuliffe-Ennis, Helena.
  • McDonald, Charlie.
  • McGonagle, Stephen.
  • McMahon, Larry.
  • Mullooly, Brian.
  • O'Brien, Andy.
  • O'Toole, Martin J.
  • Quealy, Michael A.
  • Ryan, William.

Níl

  • Higgins, Michael D.
  • McGuinness, Catherine I.B.
  • O'Leary, Seán.
  • O'Mahony, Flor.
  • Robb, John D.A.
  • Ross, Shane P.N.
  • Ryan, Brendan.
Tellers: Tá, Senators Harte and Belton; Níl, Senators B. Ryan and McGuinness.
Amendment declared carried.
The Seanad adjourned at 9.45 p.m. until 2.30 p.m. on Wednesday, 17 October 1984.
Top
Share