Vol. 129 No. 5
I move:
That Seanad Éireann resolves that sections 4 to 6, 8 to 10, 15, 16, 18 and 19 of the Criminal Justice Act, 1984 (No. 22 of 1984), shall continue in operation.
I propose, with the agreement of the House, that each Senator's speech shall not exceed 20 minutes.
This motion seeks Seanad approval for the continued operation of sections of the Criminal Justice Act, 1984, concerning the detention of arrested persons in Garda custody in certain circumstances, the withholding of information regarding firearms, ammunition or stolen property and inferences which may be drawn by the court from an accused's failure to account for certain matters. These provisions were brought into force on 1 July 1987, and the effect of section 2 of the 1984 Act is that those provisions will cease to operate after 30 June next unless both Houses resolve that they should continue in operation.
The fundamental purpose of the 1984 Criminal Justice Act was to enhance the capacity of the Garda Síochána to deal with crime. It is of the greatest importance, in a democratic society, that increased police powers are accompanied by appropriate safeguards and the reason for our discussing of the 1984 Act today is primarily because as parliamentarians we have a shared concern to ensure that the safeguards put in place in this instance are working sufficiently well to warrant the continuance in operation of the sections of the act referred to in the motion.
It is clearly our duty also to bear in mind that the Act itself is aimed at protecting the public against the activities of criminals and that such protection for the community in general is also a matter which must be of central concern to all parliamentarians.
Crime is a source of concern to society worldwide. It is also quite understandably, the source of political and media attention. For the person whose home is burgled or who suffers injury at the hands of criminals, the reality is one of distress, a feeling of revulsion, of violation and a deep sense of injustice. It is the mark of a caring society that it demands response to incidents of this kind and that such incidents become the subject of political and media attention.
It is, perhaps, unavoidable, of course, that occasionally in our understandable wish to show publicly that we care, we may unconsciously present a picture of the crime situation which does not sit easily with the facts. A worring side to this is that it tends to create an excessive sense of apprehension, fear — indeed, isolation — amongst those who are most vulnerable. There is a duty on all of us to understand that the impact of overstatement can be most profound and damaging to the daily lives of the people we seek most to protect. It is important, therefore, that they should also hear us say that in recent years the factual situation is that crime levels have come down significantly and that substantial changes have been brought about by way of resource allocation and other wise to strengthen our capacity as a society to deal with crime.
In the period 1984 to 1990 crime figures fell by about 12 per cent overall from 99,727 to 87, 658 while the number of convictions rose by 10 per cent from 16,396 to 17,957. Within these overall figures there are very encouraging trends, for example; offences against the person dropped by 30 per cent from 2,331 offences to 1,631; attacks on the elderly, one of the most despicable of crimes, fell by almost 90, from 432 to 51; residential burglaries came down 19 per cent from 18,774 to 15,160, unauthorised taking of cars came down 44 per cent from 18,735 to 10,521; larcenies from the person — down 23 per cent from 5,842 to 4,495; deaths on the road reduced by traffic law enforcement on an unprecedented scale — down 25 per cent in the first quarter of this year from 122 to 90; armed raids, which peaked at 685 in 1986 were down 33 per cent by 1990 to 459.
On the resources and other fronts; 1,000 Garda trainees will have been taken on in the two years to December 1991 and a further 1,000 will be recruited in the next three years; 400 extra gardaí have been put on our streets since July 1989 and over 120 gardaí in Dublin alone have been assigned to Community Policing duties. Cork, Limerick and Galway have also benefited from this programme which will be further extended shortly; 350 experienced members of the force are being retained by a temporary extension of the retirement age for gardaí, sergeant's and inspectors in order to strengthen the management of the force, some 660 promotions in its ranks have been authorised by Government since November 1989. In the last 18 months, 189 civilian staff have been taken on to release gardaí for outdoor duties. A further 60 civilians will be taken on for this purpose before the end of the year. £10 million is being provided in this year's Garda estimates to upgrade Garda equipment of every kind and by the end of this year, £40 million will have been spent on the current Garda building programme. Garda juvenile liaison officers and public service vehicle inspectors have been put on the seven day roster to enable evening and weekend working by these members of the force and the juvenile liaison service is being totally reformed. A national office to oversee this service was set up last December.
Community based initiatives to rehabilitate young offenders have been set up in Dublin and Limerick and will be extended elsewhere and for those juvenile offenders fort whom custodial education is the only option my colleague, the Minister for Education, intends to provided 45 extra spaces by September at the Ard Mhuire site in Lusk, County Dublin, that is 36 places for boys and nine for girls. The Minister of State at the Department of Health, Deputy Flood, presides over the new inter-departmental committee of officials from his own Department, from Justice and Education, who are dealing with this and all other aspects of the treatment of juvenile offenders and young people at risk.
A Garda schools programme is now in place in 14 Dublin schools and will be extended to other population centres shortly and I have obtained Government approval for the recruitment of a team of 31 extra probation officers in the current year to provide for an intensive supervision regime for about 200 offenders in the community as an alternative to custody.
There has been a major response to neighbourhood watch schemes with over 1,046 schemes now in operation covering 202,175 households. The rural equivalent of neighbourhood watch community alert is now in place in 245 locations around the country.
I am examining comprehensive proposals on rural policing aimed at securing an enhanced service to the public from the Garda Síochána in the areas affected. These proposals do not involve the closure of any Garda station or any reduction in Garda numbers attached to any station which might benefit from the scheme. I intend to make decisions in relation to all aspects of the rural policing reform proposals in the very near future.
On the legislative front I have been responsible for significant advances and, would instance in particular: the Larceny Act, 1989; the Firearms and Offensive Weapons Act, 1990; and the Criminal Law (Rape) Act, 1990 and the Criminal Justice (Forensic Evidence) Act, 1990.
The question of drug-related criminal activity has again become the subject of widespread and justifiable public concern. People feel that this menace, which was brought within bounds in recent years, is re-emerging as a problem on our streets. I have discussed this issue in depth with the Garda authorities who, while reporting an increase in the level of drug seizures in recent years, mostly cannabis, say there is no question of the problem being on the scale which existed some years ago.
I would like to assure the House that the drugs problem is continuing to receive priority attention from a law enforcement point of view. All members of the Garda Síochána deal with law enforcement aspects of drug misuse within their operational area. In addition, specific Garda drug squads operate in Dublin, Cork and Limerick and at present small specialist units are in operation in Dublin's north inner city, Ballymun, Ballyfermot and Tallaght. Similar specialist units are set up on a temporary basis in other areas as required. The strategies employed include intelligence gathering and analysis, surveilance, targeting and monitoring the activities of suspects, as well as routine investigations.
There exists a high level of on-going liaison with the Customs authorities, which provides for exchange of information and for joint operations in major cases. This liaison includes meetings, as required, at senior level to exchange information and views on current trends and mutual problems. I am informed by the Garda authorities that the strategies are proving very effective.
There is also a need to develop and coordinate effective measures against drugs on an international level and this problem is being addressed in a number of fora in which representatives from this country are actively involved, such as TREVI (Police Group), CELAD (Co-ordinators), MAG (Customs Group), Pompidou (Council of Europe) and the United Nations. However, law enforcement on its own will never solve the drugs problem. This is an area in which the role of parents, teachers and other agencies caring for our young people is at least as important as the Garda response.
The need for a national drugs strategy has been recognised by the Government. My colleague the Minister for Health, Deputy O'Hanlon, recently launched the Government strategy to prevent drug misuse. Our intention is to tackle the drug problem on every front. Realistic and achievable objectives have been set for the reduction both in the supply and demand for drugs.
Again, on the legislative side, I have announced plans which I believe will make a major contribution towards the fight against drugs. Very shortly I shall publish legislation to provide for the seizure and confiscation of the proceeds of drug trafficking and money laundering. I have no doubt that this legislation will be widely welcomed.
Before I return to the technicalities of the 1984 Act and the particular sections we are considering, I would like to make a point which I think needs to be made over and over again — not only by Ministers for Justice but by everybody in a position of influence such as the Members of this House — and that is, that all the legislation and resources in the world are of limited value in the fight against crime unless there is effective co-operation between the community and its police force.
I had the privilege within the past week of hosting a TREVI seminar attended by senior police officers and appropriate Ministry representatives from countries on the subject of community oriented policing. The pre-dominant message which came across from this seminar is that ultimately police effectiveness is not just a matter of numbers or equipment or policing methods but is determined above all else by the level of co-operation and trust existing between the police force and the community it serves. Studies have shown that only a small percentage of crime detection arises from what are commonly believed to be classic police methods — the type of thing portrayed in American detective series on our TV screens.
By far the most effective element in crime prevention is vigilance by the community itself, coupled with a high level of co-operation between the police and individual members of the public who contact the authorities when they have any information which may help in solving a particular crime. The core of my message today is that the future of law enforcement in this country depends on mutual trust and co-operation between the community and the Garda in the fight against crime.
The bringing into operation of the sections of the 1984 Act referred to in the motion was subject under section 1 (2) of the Act, to two important matters. The first of these was the enactment of legislation relating to the investigation and adjudication of complaints from the public against members of the Garda Síochána. Secondly, there was a requirement that regulations be made under section 7 of the Act for the treatment of persons in Garda custody. Following the enactment of the Garda Síochána (Complaints) Act, 1986, which provides procedures for handling Garda complaints, the Garda Síochána Complaints Board were set up under the Act in April 1987.
In view of the backlog of complaints with the board, perhaps I should say something about the matter and the operation of the board generally. The Act requires the board to keep under review the working of the system of investigation and adjudication of complaints and to make a report thereon every three years. The first such report by the board, their triennial report, 1987 to 1989, was published just a year ago and gave a very full account of the board's activities up to then. It contained comments and recommendations on the Act and included chapters on staffing and on possible less costly alternatives to the present system. However, it is particularly noteworthy that the board indicate in the report that their conclusion is that the Complaints Act is basically sound and provides an adequate legislative basis for the proper investigation and adjudication of complaints.
With regard to staffing, the report referred to a less than satisfactory situation and called for additional permanent staff for the board plus temporary staff to clear the backlog of complaints. The receipt of a greater number of complaints than anticipated when the staffing complement was being decided was a major cause of the backlog of arrears. However, the volume of complaints received is dropping steadily since 1987 and I understand that this is in line with the experience in other countries when a new complaints board are established.
I, of course, share the board's concern about the backlog of complaints. My concern is both with the position of the public and with that of the members of the force about whom complaints are made and in whose interests it is that complaints should be dealt with promptly. It was for this reason that, on assuming office as Minister for Justice in July 1989, and on being made aware of the board's position, I immediately took up with the Minister for Finance the question of additional staffing resources for the board. I subsequently obtained agreement for the sanctioning of four extra staff members for the board, thereby increasing their complement from six to ten. All of these extra staff were made available by redeployment from else where in the public service and assigned to the board by December 1989. The nature of the work involved, however, means that it takes some time for additional staff to make an impact on the volume of arrears. I am glad to say, however, that the impact of the extra staff is reflected in the reduction which has been brought about in the real backlog of complaints from about 750 last November to under 500 today, a decrease of about one-third in six months.
However, it is my wish that the backlog would be cleared completely and, therefore, notwithstanding this improvement, I am still actively pursuing the possibility of providing further staff resources for the board and provision for this purpose has been made in the board's allocation in this year's Estimates.
The second matter I referred to earlier, namely, regulations regarding the treatment of persons in custody in Garda stations, came into force in May 1987. The regulations include provision, as required by the 1984 Act, for the assignment to a member of the Garda Síochána of appropriate rank in each Garda station of responsibility for overseeing the application of the regulations to persons in custody. That responsibility includes such matters as ensuring that persons in custody are informed of their rights and arranging for a solicitor to be contacted or some other person to be notified where a person in custody has decided to exercise those entitlements. The member in charge also has overall responsibility for the accuracy and completeness of custody records which provide a full and detailed account of any period during which persons are in custody in the Garda station. The regulations were approved by both Houses prior to their being brought into operation.
I turn now to each of the sections of the 1984 Act which are the subject of the motion before the House. Section 4 of the Act gives the Garda power to detain for up to six hours a person who has been arrested without warrant for an offence carrying a penalty of at least five years imprisonment. The six-hour detention period may be extended for a further six hours on the authority of a Garda superintendent. A period between midnight and 8 a.m., during which questioning does not take place, may be excluded in calculating the permitted period of detention if certain requirements, which include the agreement in writing of the suspect, are satisfied.
In considering section 4 it is important to bear in mind that it contains the only general legislative power the Garda have to detain, for questioning, persons who are reasonably suspected of having committed a serious crime. There is a power to arrest and detain persons under section 30 of the Offences Against the State Act, 1939, but that provision deals only with a limited range of crimes — it does not cover, for example, ordinary murder, rape or robbery.
Prior to the late 1970s the Garda operated on the basis that they could ask a suspect to go to a Garda station to "help them with their inquiries". That situation changed completely about 1977 when the courts overturned the Garda practice in these situations and held that it was unlawful. The courts also rejected as inadmissible in evidence confessions or incriminating statements obtained during periods when it was adjudged that an accused person had been unlawfully detained.
The Garda difficulties in the matter were also exacerbated by court decisions to the effect that where a person went to a Garda station voluntarily and the stage was reached where he came under suspicion for the offence, then he had to be told by the Garda that he was free to leave the station unless and until he was arrested. That new requirement could involve interrupting a suspect who was freely making a statement containing an admission of guilt and from a Garda viewpoint it virtually destroyed the practical value of being able to "invite" persons to the station.
The position prior to section 4 which I have mentioned helps to illustrate the problems the Garda faced before its enactment. The need for the detention powers as such in section 4 is, I think, beyond dispute. Much more extensive detention powers for investigating crime operate in other European countries; in the United Kingdom, for example, detention in police custody for up to 36 hours is permitted for the investigation of a serious offence and after that period the suspect may be brought before a magistrate who may order the person to be further detained up to a maximum of 36 hours.
The real question we have to ask ourselves is whether safeguards built into section 4 to minimise abuse are satisfactory and have in fact minimised abuse. The safeguards in the section are stringent. Before a person can be detained, he must have been arrested, with reasonable cause, on suspicion of having committed a serious offence. The member in charge of the Garda station to which the suspect is taken must have reasonable grounds for believing that detention is necessary for the proper investigation of the offence. The arresting Garda and the member in charge are liable to be cross-examined on the reasonableness of their actions and it is open to a court to decide whether, in all the circumstances, their actions were justified. This is also the situation where a Garda superintendent extends detention beyond an initial six hours. The superintendent can only authorise such an extension on the basis of reasonable grounds for believing that further detention is necessary for the proper investigation of the offence.
The operation of section 4 is limited in other important respects. A detained person must be released forthwith if there are no longer reasonable grounds for suspecting that he has committed the offence for which detention is permissible. Once a person is charged, questioning must stop and the person must be brought before a district justice as soon as practicable.
Senators will be interested, therefore, in the way in which section 4 has operated in practice. The Garda authorities were requested to maintain statistics on the operation of the section and the relevant information is contained in a table which I have arranged to be circulated to Senators.
In the period 1 July 1987, to 31 December 1990, a total of 24,095 persons were detained under section 4. This, I believe, demonstrates the importance of section 4 to the Garda. Of those who were detained, 58 per cent were charged with an offence for which they were held under the section. That figure comprises those who were charged immediately or on the spot, so to speak, and those who were released without charge but subsequently charged with an offence for which they had been detained. The very high proportion of persons charged provides a clear indication that persons are being detained under section 4 where there is a real suspicion that they have committed a serious crime. It is also significant that the number of cases where detention was extended beyond six hours was approximately 16 per cent of the total number of persons detained. That figure could not be described as excessive and certainly lends weight to the view that the Garda have exercised their powers under section 4 in a responsible manner.
This is something that also emerges from the statistics for the length of time after which persons were charged or were released without charge; for example, well over 50 per cent of the persons who were released without charge were released after detention for under three hours; and detention was extended in only 11 per cent of cases where the person was released and not charged.
I am glad to say, on the basis of the information available to me, that section 4, containing as it does reasonable powers of detention and safeguards, should indeed continue to be part of our law.
Section 5, 6 and 8 to 10 referred to in the motion are related in one form or another to section 4 but are important provisions in their own right. Section 5 imposes a duty on the member in charge of a Garda station to inform a person detained under section 4 that he is entitled to consult a solicitor and to have notification of his detention and whereabouts sent to another person. Upon request, the member in charge is required to cause a solicitor and a person named by the detainee to be notified. Where the detained person is under 17 years of age, a parent or guardian of that person must be informed of his detention. I might point out that the Supreme Court has since held, in People (DPP) v. Healy (December 1989), that a person detained by the Garda has a constitutional right to consult a solicitor.
Section 6 gives necessary powers to the Garda authorities to carry out a full and proper investigation of the offence or offences for which a person is detained under section 4. A garda may obtain the name and address of the detained person, search him, photograph him, take his fingerprints and palm prints and seize and retain for testing anything he has in his possession. The section also allows swabs from skin or samples of hair to be taken for the purpose of testing for contact with firearms or explosives. However, the Criminal Justice (Forensic Evidence) Act, 1990, repeals and re-enacts that provision with more extensive provisions in relation to the taking of bodily samples. Arrangements are being made to bring that Act into operation as soon as possible.
The section places a number of restrictions on the Garda where the exercise of the more intrusive powers conferred is involved. A detained person cannot be photographed or fingerprinted or required to remove certain clothing without the prior authority of a Garda superintendent.
There must, in exercising those powers, be reasonable cause to suspect that the person is concealing drugs or explosives on his person. Senators will note from the table I have circulated that the number of cases where fingerprints were taken under section 6 for the period 1 July 1987, to the end of December 1990, was 5,501 and that a search involving the removal of underclothing was authorised in 1,274 cases. These figures represent 23 per cent and 5 per cent respectively of the total number of persons detained and there is nothing in them to suggest that the powers conferred on the Garda are being excessively used.
Section 8 provides that every copy and record of a photograph, fingerprint and palm print of a person taken under section 6 must be destroyed after six months if the detained person is not prosecuted or if he is acquitted. The person concerned is entitled to witness, or to have another person witness, the destruction of photographs, etc., if he so requests. In the event that the DPP wishes to retain section 6 material when it would otherwise have to be destroyed, he must satisfy a district justice that the material may be required for the purpose of criminal proceedings in relation to the offence for which the person was detained.
Section 9 applies certain provisions of the 1984 Act to detention under section 30 of the Offences Against the State Act, 1939. These include the right of access to a solicitor and the requirement that the taking of photographs and fingerprints must be authorised by a Garda superintendent or higher officer.
Section 10 contains safeguards against re-arrest and detention under section 4 for the same offence. A detained person may not be arrested again for the same offence unless it is for the purpose of charging him with the offence immediately or the Garda receive further information and a district justice authorises the re-arrest.
A similar restriction operates in relation to the use of section 30 of the Offences Against the State Act where a section 4 detainee is released because, in order to detain that person under section 30, he would have to be arrested and, accordingly, section 10 would apply. A person, who is arrested for an offence under section 30 and not charged, cannot be detained under section 4 for the same offence or for an offence of which he was or reasonably ought to have been suspected at the time of the initial arrest.
I turn now to sections 15, 16, 18 and 19 of the 1984 Act covering certain matters other than detention. Sections 15 and 16, respectively, make it an offence to withhold information about the source of illegally held firearms and ammunition, and stolen property. The Garda must have reasonable grounds to suspect that the firearm, ammunition or stolen property is illegally held.
The Garda must also explain to the person the consequences of his failure to provide the required information. Any information given cannot be used against the person or his spouse unless he is charged with an offence under the section. Although the number of prosecutions under the sections have been few, I am advised by the Garda authorities that the provisions are of importance in Garda efforts to get at the source of supply of arms used for criminal purposes and the source of stolen property. There were four and five prosecutions, respectively, under sections 15 and 16 for the period July 1987 to the end of December 1990.
Section 18 allows a court or a jury to draw an inference from the failure or refusal of an accused, when questioned by a Garda, to account for objects, substances or marks found on his person or clothing, in his possession or at the place where he is arrested without warrant.
The idea behind the section is that a suspect could be expected to account for, say, a stain on his clothing which might be attributable to his participation in a specific offence. This is no more than common sense and it is something a jury would, in any event, be fully aware of apart from this section.
Section 19 allows an inference to be drawn where the arrested person fails or refuses to account for his presence at or about the time the offence for which he was arrested was committed. The garda must inform the person about the consequences of his failure or refusal to comply with the sections and a person cannot be convicted solely on the basis of an inference drawn under those sections. The number of persons failing to comply with sections 18 and 19 was only two and 13, respectively, for the period 1 July 1987 to the end of December 1990.
Apart from the statistics I have made available about the numbers of cases arising under the sections of the 1984 Act, Senators will be interested to know that the Garda Complaints Board have informed me that while the statistical system operated by the board does not link complaints to specific sections in the 1984 Act, or indeed any other Act, the board can say that they have received very few complaints relating to the 1984 Act.
That more or less concludes what I have to say about the sections referred to in the motion. However, I should like to say something about another section in the Act — section 27 — which provides that the Minister for Justice may provide for the recording by electronic or other similar means of the questioning of persons by members of the Garda Síochána in connection with the investigation of offences. The need for such recording was considered in detail by the Martin Committee in the context of their examination of the need for additional safeguards, given that an uncorroborated inculpatory admission to the Garda Síochána can be sufficient evidence to ground a conviction.
The Martin Committee, in their report, outline the many safeguards which exist at present in relation to Garda questioning of suspects, for example the right to remain silent, the Judges' Rules, the right of access to legal advice, the Garda Síochána (Complaints) Act, 1986 and the responsibility which the treatment of Persons in Custody in Garda Síochána Stations Regulations, 1987 place on the member in charge in a Garda station in relation to persons in custody. Indeed, it is worth noting that the Martin Committee state, and I am quoting here from their report, that:
We should state, however, that the submissions received from practitioners, and in particular from defence practitioners, are unanimous to the effect that the coming into force of the Regulations for the Treatment of Persons in Custody in Garda Stations coupled with the setting up of the Garda Complaints Board, has resulted in the virtual disappearance of complaints of physical ill-treatment or threats of violence.
The position, therefore, is that the existing safeguards, and in particular those which were introduced subsequent to the 1984 Act play a very important role in ensuring that the rights of the persons being questioned are upheld.
My Department and the Garda authorities looked into the possibility of introducing arrangements for the audio recording, that is, sound only, of the questioning of suspects by the Garda Síochána, similar to arrangements which were in operation in some other countries. However, in view of developments in technology, some countries which had introduced audio recording, are now trying out video recording on a trial basis.
The Martin Committee also considered the question of introducing audio recording, which would cost substantially less than video recording, but came down in favour of the latter. We are now in a position to avail ourselves of the experience of other countries in relation to both audio and video recording and to ensure that any system introduced takes account of the lessons learned in other countries and make the best use of scarce financial resources.
As you will appreciate, the introduction of video recording means that video evidence, even during a pilot scheme, will be available to the court. It is essential, therefore, that all issues regarding the operation of the system are decided upon in advance of the introduction of a pilot scheme. I am considering this matter at present and I hope to be in a position to put proposals in relation to a pilot scheme to the Government shortly.
I am satisfied that all of the sections of the 1984 Act referred to in the motion should continue in operation. The view of the Garda authorities is that the provisions have played a vital role in the detection and prosecution of serious crime. It seems clear also that the provisions have played their part in deterring people from criminal acts. I have no doubt that, as regards the section 4 detention provisions in particular, the vast majority of people would accept that the Garda, for the purpose of questioning and conducting investigations and inquiries, must have the power to detain, for a reasonable period those persons who are suspected of having committed crimes which may include murder, drug trafficking and serious robbery.
All the indications now in the light of experience of the four years of their operation is that the 1984 Act provisions in question have operated satisfactorily. I, therefore, commend the motion to the House.
I welcome and support this motion. It is interesting to note that the 1984 Act was introduced by the Minister for Justice of the time, Deputy Noonan. It is also interesting to note that from 1973 to 1983 the number of indictable offences increased from 38,022 to 102,387 and from 1983 to 1989 that number has dropped to 86,792. This is an unacceptable figure but it demonstrates the marginal success of the legislation and the necessity to keep the sections mentioned here in operation. Unfortunately, our society is prone to crime and this does not address the causes of crime. We must deal with the causes of crime and tackle them. Social deprivation and the high level of unemployment play a major role in people turning to crime. We must tackle that problem, we must increase the level of prosperity and, above all, disburse it to all sections of our society. We must ensure that the sections of society in which petty crime occurs do not feel alienated by the approach of our society. The Government must tackle the problem of crime, they must combat and control it.
Crime is also big business and professional criminals make a great deal of money from it. It is a very profitable business and I am glad to note that the Minister will publish legislation shortly to provide for the seizure and confiscation of the proceeds of drug trafficking and money laundering. I ask the Minister to extend that to other areas of crime where confiscation of the proceeds can be introduced. Many hardened criminals are aware that if they are sentenced and have put away the proceeds of their ill-gotten gains they will be available to them when they return or they will be available to their families in their absence. The proceeds from crimes such as robbery should also be included in the legislation which the Minister has promised.
Our Constitution obliges us to protect our citizens from unjust attack. It provides that the State shall by its laws protect as best it may from unjust attack and, in case of injustice done, vindicate the life, person, good name and property rights of every citizen. The Act has had an effect on the incidence of petty crime but it has not been effective in respect of serious crime. This is an area that should be specifically looked at and Fine Gael have been calling for some time for a report from the Law Reform Commission and for legislation to deal with serious crime.
Fine Gael and the Garda are concerned about our laws in relation to bail and this has been spoken about over the past few months. It is accepted that our bail laws need to be tightened up so that the courts do not have to free people who are likely to commit further serious crime while on bail. In 1989 the number of crimes committed by people on bail was 2,647. The problem is that bail cannot be refused by the courts on the grounds that the criminal is likely to commit further serious crime. A constitutional amendment is necessary to restore this discretion to the courts. I ask, as a matter of urgency, that the Government use the opportunity on 27 June to introduce a referendum to allow a change in the law to give discretion back to the courts for the granting of bail. The courts are well aware at present that these people commit further serious crime.
Section 4, as the Minister said, deals with detention after arrest for a reasonable period of time. This is absolutely necessary to allow the Garda to investigate crime and question people in a proper fashion. Nobody would suggest that that should be done in anything other than a humane, reasonable and proper fashion. To do that job, they must have time to do forensic and other tests, as the Minister mentioned. Prior to this Act it was illegal to detain a subject for questioning except under section 30 of the Offences Against the State Act. The Garda acted as if they had the power and operated the practice of bringing a person to a Garda station and it was referred to as helping the police with their inquiries. They did detain people at that time, or people believed they were detained, but it was found to be illegal. The admission of statements or confessions under such circumstances did not stand up to the challenge of the courts subsequently. Criminals became very adept at making confessions in such circumstances and the courts had to acquit them. Sections 4 to 10 of the Act give the Garda power to do their job properly. Prior to the introduction of this legislation it was assumed they had the power to detain people and the Garda acted accordingly.
The questioning of suspects is an important element in the investigation of any crime. The Thompson Committee which investigated criminal procedures in Scotland in its report in 1975 recognised this and recommended that the police should be given power to detain suspects. They said:
The policeman's real difficulty arises in investigations when he wants to interview a suspect or prevent him from interfering with evidence such as stolen property. At present the police are powerless to act without the consent of the very person who is likely to have most interest in refusing to give that consent. Clearly the police should not be entitled to arrest anyone they want to interview but it seems plainly wrong, for example, that a suspected violent criminal with significant evidence on his clothing has to be left at large while the police seek other evidence of his guilt sufficient to entitle them to charge.
Arrest under the Act must be on the grounds of reasonable submission and cannot be indiscriminately applied. It allows for reasonable access to a solicitor and under section 5 allows access to a solicitor for persons under 17. In fact, the person detained must be informed, without delay, that he is entitled to a solicitor and in the case of a person under 17 the parent or guardian must also be informed. Section 8 deals with the destruction of records and people who are not charged can actually supervise the destruction of such records.
Sections 15 and 16 deal with the withholding of information in the use of firearms; they allow the Garda to attempt to get to the source of those firearms and, therefore, are aimed at those who supply the guns. Those sections also deal with stolen property and the charging of persons found in possession of stolen property. They deal with the receiver of stolen property and, as the Minister said, this was expanded in the legislation introduced last year.
Sections 18 and 19 do not compel a person to give information where he or she is found in suspicious circumstances but the courts can draw adverse inferences from such refusals. As I said earlier, Fine Gael have asked for a criminal law reform body to be established to advise and report on the updating and qualification of our criminal law.
The Minister referred to his meeting with the TREVI group at the TREVI seminar in the past week. Will he inform the House what developments, if any, have been made with regard to the opening of our borders in 1992 and the implications this will have for criminal elements? There is much concern within sections of the Garda Síochána that the opening of the borders will lead to an increase in the level of crime. Have any developments taken place with regard to the harmonisation of our laws, the harmonisation of police services and the equipping of police throughout Europe? It is accepted that there should be uniformity in those areas to ensure that there will be a co-ordinated approach by all police services throughout Europe when the borders are opened in 1992.
The Minister referred to the Garda Complaints Board. While we accept that there has been a reduction in the backlog of complaints from 750 last November to 500 today, this is still an unacceptable figure. The Minister said that more staff will be provided to ensure a further reduction of this figure and we look forward to that. The Minister's aim should be to eliminate the backlog in a short time and ensure that complaints are dealt with immediately both from the point of view of the people who complain and of gardaí who find that most of the complaints are vexatious anyway and should be taken off their agenda. They should not be left hanging over them for several years as is the case at present.
We also welcome the Minister's statement in relation to the introduction of video-recording in obtaining evidence and in the questioning of suspects. I appreciate that the implications must be looked into in great detail but we look forward to its speedy introduction. I welcome the motion which has the support of my party.
I thank the Minister and the Minister of State for coming here today to discuss this very important motion. In summary, the effect of this motion is to ensure that certain provisions the Criminal Justice Act shall continue in operation. We are not dealing with new legislation; this motion hopes to carry on the provisions of the 1984 Act which came into effect on 30 June 1987. That Act contained the very wise provision that those sections would be reviewed and unless the extension is granted the provisions under those Acts will automatically lapse. In other words, we have to decide if the provisions in the sections set out here are prudent, are working well and so on. As a result of what the Minister has outlined, there is no doubt that the provisions contained in those sections should be extended.
I would like to put on record my pleasure at some of the figures and statistics the Minister announced. It is significant that despite growing drug problems and more sophisticated criminals on the streets, the Government and the Minister are enjoying relative success in the area of fighting crime. In the period 1984-90 overall crime figures fell by about 12 per cent. It is gratifying that the number of convictions of criminals in the same period rose by 10 per cent. This is something any Government and Minister can be proud of. We all concede that crime is an ongoing problem. We must protect society and this is the prime motive of the Minister and the Garda who should be lauded for the work they are doing. From time to time we hear criticism of the Garda and the introduction of the Garda Complaints Body is welcome, but overall the Garda Síochána, from the commissioner right down to the garda on the beat, are doing an excellent job. We do not give them enough praise. Perhaps there are a few bad apples — and this has come to light because of complaints against gardaí — but 99 per cent of the Garda force, in uniform or plain clothes, are decent, hard-working people doing an excellent job for the protection of the citizens of this State. They deserve great praise for the work they do.
It is also significant that offences against the person have dropped by 30 per cent, from 2,331 to 1,631. This is very laudable because one of the most notorious and despicable crimes is the crime against the person, physical violence and so on. The fact that there has been almost a one-third drop over a period of years suggests that the provisions of the 1984 Act, especially the sections mentioned here, are working well. It is also worth mentioning that attacks on the elderly — a very despicable crime — have dropped by almost 90 per cent, from 432 to 51. This indicates that the policy of the Government, the Minister of the day and, indeed, of the Garda is working well. There are also falling figures with regard to residential burglaries, unauthorised taking of cars and larcenies from persons. These dropped by 23 per cent. This is a significant reduction and, of course, we would love to see it decrease further. It is the intention of the Government and the Minister to ensure that those figures are maintained and possibly in four or five years' time the percentage figures mentioned will have increased and we will see a downfall in crime. Any sane citizen would like to see this happening.
There has been a significant drop in armed raids. About nine or ten years ago armed raids were commonplace throughout this country. The job being done in this area by the Garda, with back-up from the Army and the Department, is significant and praiseworthy. We should also laud the Minister and the Department for the fact that in the last two years 1,000 new gardaí have been recruited and there are plans to recruit a further 1,000. This indicates the sincerity and concern of the Government and the Minister in relation to putting extra gardaí on the streets. Other efforts are being made by the Department and the Minister to involve civilians in secretarial work, etc., in an effort to release more gardaí on to the streets. In this respect 300 or 400 senior gardaí in the ranks of sergeant, superintendent and inspector are being allowed to stay on after reaching retirement age to ensure that their experience will be used in the fight against crime. This is indeed significant.
The budget figure of £40 million for capital expenditure by the Department of Justice last year is significant. I was glad to see the Minister, Deputy Burke, opening a new Garda station in Bandon, west Cork last Friday. It is a great asset to the area. I have had personal experience of the old station through working with some of the gardaí and superintendents and from court work. It was a very outdated, antiquated, 200-year-old station. Now they are in a new building, well equipped with every type of facilities available for the gardaí This gives a morale boost to the force. That expenditure in providing new facilities for gardaí is to be lauded.
The drive by the Department and the Minister to improve the lot of our citizens must not go without praise. The neighbourhood watch and community alert schemes have worked very well. These schemes are common around the country in towns, villages and rural areas. I come from a rural constituency where these schemes work very well. It is important that the gardaí have the back-up of the community. The vigilant individuals in the community who take part in the neighbourhood watch and community alert schemes are certainly an important factor in the fight against crime. I am sure the Minister accepts the value of these schemes in the protection of our citizens and in the overall fight against crime. They are very praiseworthy schemes and I hope they will continue. Crime prevention is better than trying to resolve the problem once the crime has been committed. In my own area in west Cork a few years ago gangs from the city came out regularly and attacked properties, holiday homes, etc., which were unoccupied, and took valuable goods. These community alert schemes offer a means of protecting houses which are unoccupied for a number of months of the year. This is certainly something that must be praised and given recognition. The trust of the public in the Garda must be nurtured and improved as much as possible. The gardaí are doing an excellent job and with the support and back-up of the community they serve they can indeed improve the lot of all parties concerned.
Section 4 is most important. Up to 1987, when the legislation came into force, practitioners, gardaí and the courts had to rely more or less on the judges' rules, which were an unwritten code of law in relation to people in custody. Many of the judges' rules have been incorporated in the 1984 Act. From my own experience as a practising solicitor, I believe that section 4 works very well. Recently at 4 a.m. the local Garda sergeant phoned me and asked me to see a person being held in custody. I found that the person was being treated very well. The whole scenario of this section was brought into play. The person was brought into custody late at night, tired and under the influence of alcohol. He was given the opportunity by the gardaí to avail of some rest, which made him fresher in the morning. I thought it was an excellent idea. That person was treated very well. After six hours in detention he was released. The system in that practical example worked very well, to the benefit of both the gardaí and of the person being held in custody.
The statistics bear out that a large number of people in custody for the six-hour detention period are dealt with in that period. For a person in custody for questioning or otherwise to be detained for longer than six hours the authority of a person of no lesser grade than a Garda superintendent must be obtained and he must show just cause. The onus is on him, should he be questioned by a district justice or in any other court, to show that he has reasonable cause to lengthen the period of time the person in custody should be detained. All the figures show that this section has worked very well. It is important to strike a balance between the right of the person in custody, for questioning or otherwise, and the duty of gardaí to do a proper job. The job of the gardaí can be very difficult and unless they have some room to manoeuvre our citizens will be at a greater loss and subjected to greater spates of crime.
The provisions of this Act from my own personal experience — I do not want to go into practical examples — have worked well. This motion should get the support of this House. I can understand the anxiety of Senators on the other side of the House from time to time and my good friend and colleague, Senator Norris, will have certain remarks to make. While I can understand their anxiety, one must realise that we are not going to get a Utopian justice system in any part of Europe. We would love to see it, but overall the working of section 4 has been admirable and the statistics back up the success of the section. We propose here to extend it for a further period of four years, when I understand it will again be under review. It will not be extended indefinitely. It is important to note that. It certainly warrants a further four-year period to prove that it has been successful and that it is useful and necessary in the fight against crime.
Some of the other provisions in the Act arise because in the seventies a number of High Court cases, as they related to the questioning by gardaí of people in custody, had proved that the system up to then had been inoperable. This legislation provides some sort of a framework to ensure that gardaí can do the job which they are obliged to do as protectors of our citizens and property and at the same time individuals in custody get fair play. They are entitled to access to a solicitor and to make phone calls and they are entitled not to be detained beyond a maximum six-hour period. If this period is to be extended it is only in extreme circumstances, where a Garda superintendent is satisfied that another six-hour period is warranted. Indeed, the onus is on the Garda superintendent in question to satisfy himself that this is indeed necessary and warranted.
The statistics show that 58 per cent of those held under section 4 were charged with an offence for which they were held under that section. This is a clear indication that the gardaí do not, willy-nilly, bring people in for questioning and hold them in custody. They do it where there is a genuine suspicion that the person has probably been involved in a crime. The fact that almost 60 per cent of these are subsequently charged is an important statistic.
What about the 42 per cent? It is almost 11,000 people in three years.
I do not want to get involved in an argument across the Floor.
I ask Senator Norris to let Senator O'Donovan continue without interruption. The Senator knows I would defend him in like manner.
He will have his day. We are not going to get a Utopian situation. We must have some sort of meaningful working set-up whereby gardaí can bring people in for questioning. If a garda has a suspicion when a crime is committed, surely six hours in a Garda barracks is very reasonable. Regarding the 42 per cent who are released without charge, it should be noted that there is always a certain element of these who are rearrested and brought back in. It does not indicate that the Garda are abusing the system. Far from it.
The other sections deal with the obligation on the Garda to allow the person in custody to contact a solicitor. This in the normal course of events works quite well. In one instance where somebody in custody was being questioned in connection with a serious crime the Garda sergeant contacted six different firms of solicitors before he eventually got someone out of his bed. That indicates that it was not just one phone call. The Garda sergeant was a responsible person and was anxious to ensure that the person in custody would get the advice of some solicitor in the early hours of the morning.
The provisions of the Criminal Justice Act, 1984, particularly these sections which we are dealing with today, have worked very well. They are practical provisions and they deserve a further four-year term. Although there may be certain suspicions by other Senators as to their propriety, the statistics prove that they have worked well. Crime rates in Ireland are falling. The success rate of the Garda and of the system of justice has increased and the extension for a further four-year period is very reasonable. I recommend and urge the House to accept that this be done. It will be up for review again in four years time. It has worked well and it must be lauded.
I thank the Leader of the House for his courtesy in providing me with the sections of this Act which it is proposed to continue. I oppose them and I will be making, I think, a very reasoned case for opposing the continuation of these sections. It seems to me that what we are doing here is attempting to use an atom bomb to kill a greenfly. The Garda already had a considerable range of powers. I do not think it is quite understood by many people who appear to support these provisions precisely what is involved or the fact that under the operation of these regulations precisely those situations which occurred in the Birmingham Six and Guildford Four cases, about which we waxed so lyrical in this country, would not only be permitted but would be encouraged to take place.
The Minister in his speech made great play of the fact that this has already been passed. Indeed it has, during a period when there was considerable hysteria about crime figures. We were told about crime waves and so on, but I would like to point out that the Labour Party, who themselves promoted the 1984 Act when they were in Coalition with Fine Gael, attempted to alter the situation in November 1989 by introducing a Bill which would ensure that no person was convicted on the basis of an uncorroborated incriminating confession. I suggest that reinforces a belief that many of the people who actually voted for that measure in 1984 did not fully understand the implications of what they were voting on and at least some of those who did subsequently tried to backtrack as fast as they could.
With regard to the statistics on crime, nothing that I say should be taken as an attack upon the Garda in general. I would like to endorse things that were said from all sides of the House. We have an excellent police force here who have my respect, admiration and gratitude. That does not mean that they are saints and it does not mean that the technical aspects of this legislation do not foster a situation in which there is a possibility of abuse. There has been abuse in the past. I would exonerate the vast majority of gardaí but the possibility does exist and it is necessary that we tackle it.
With regard to the crime figures I was very glad the Minister said it is a mistake to exaggerate the fact that there has been a decline. I would like to place very clearly on the record of this House that there was a substantial drop in the crime rate between 1984 and 1987, the three years before these provisions came into operation. That does not suggest that these provisions were necessary. In fact, it suggests to me that they were quite unnecessary.
I have to bow, of course, to my colleague and friend on the Government side who is a professionally qualified legal person which I am not. There are a number of legal people who would feel some disquiet and who would maintain that, for example, under section 30 of the Offences Against the State Act, 1939, very wide powers exist already for the Garda. There is a clear factual record that section 30 has been used to arrest suspects and round up people who could provide information about suspects. In other words, it has been used for trawling for information. If I get the time I will be putting on the record another disturbing fact that there has been a decision in the courts under which somebody who was arrested for a section 30 offence was then questioned about another offence and convicted on the basis of the confession that was obtained as a result of detention under section 30. That seems to me to be a rather dangerous situation and to encourage the kind of trawling that goes on.
I would like to put on the record of the House eight cases that give me cause for concern and I would be interested in the Minister's response to them. There was a very well-known case in 1984 of Joann Hayes, the famous "Kerry Babies" case where a woman confessed to the murder of a baby in Caherciveen and other members of her family actually corroborated her confession in all its details, including the fact that the baby's body was hidden in a fertiliser bag which was described. Scientific evidence showed that the baby in Caherciveen could not have been her baby at all. There is reason to be concerned at the fact that the woman in question was arrested in the first place and that her family signed confessions which agreed on basic points after prolonged investigation and interrogation. That is the first case.
The second case involved a man called Mr. Christy Lynch who confessed after 22 hours of interrogation to a murder that it was subsequently determined by the court he could not have committed. He spent two years in prison for the offence. The Supreme Court said that he had been interrogated in circumstances of "harassment and oppression".
In the third case a Mr. Paddy Devlin, not I think the politician of the same name, was detained in 1976 in Portarlington Garda station where he alleged he was beaten and a belt was tightened around his neck. He spent ten days in hospital and was never charged with an offence.
In 1983 a woman called Amanda McShane was freed by a court in relation to a charge of robbing a post office when it was revealed by her solicitor that a document had been disclosed confessing the offence which it was reported had been written by her but was never signed. In other words, there was a prepared prepackaged all-purpose confession for this crime which she never signed.
In 1976 there was a celebrated case, the Sallins mail train case, about which I have to say I wish there was a proper judicial inquiry. It is extraordinary that in this country we are so lyrical about the Birmingham Six, the Guildford Four and so on and yet in this case where there is a clear miscarriage of justice it is impossible to get justice for Nicky Kelly. The most disgusting thing of all is that the Government actually use the Denning "appalling vista" judgment to support what they have done against one of our own citizens. I find that extraordinary. Two of the accused, Oscar Breathnach and Brian McNally, had their convictions quashed because of oppressive questioning and the denial of access to a lawyer. Kelly's conviction was affirmed.
In 1986 there was something that I actually welcome because I fully support the Garda in their crackdown on subversive organisations. There was a very widespread search for arms and I sincerely hope that the Garda do discover the arms that were imported illegally from a government in Libya with which our present Government feel no difficulty in having friendly relations. This I find also is an extraordinary fact. This was in the wake of the Eksund case. Some of those searches were necessary and I would be at least as delighted as anybody else if they found the appalling quantities of explosives that were involved. However, in this enormous dragnet there were things that gave concern. There were random, cursory, frivolous excursions into people's homes and flats. For example, I am aware that the flat of a non-political young woman was raided, with no real excuse; her personal letters were read, her underclothing which was in a laundry basket was investigated simultaneously with her interrogation and she was examined about her acquaintances. No charge was pressed. That is most extraordinary.
The final case I would like to cite is one from February 1991, the Damian Marsh case in which Mr. Justice Barron stated that the accused was clearly innocent and should never have been charged. In this case the Garda witnessess gave contradictory evidence and the prosecution was brought even though the statements in the book of evidence contained marked discrepancies. The police alleged that he had confessed to a murder after interrogation at the Garda station, although the provisions in the judge's rules about which we heard earlier as to recording confessions in writing appear to have been ignored. There are eight cases which cause concern.
In the work I have done, I have discovered that 40 out of every 100 persons have not been charged. The Minister supplied a more up-to-date figure of 42. That comes to 10,000 people held for interrogation but not charged. That is an extremely worrying situation for anybody who believes in civil liberties.
The report of the Kerry Babies Tribunal stated that when the Garda develop a hunch about a suspect they are liable to elevate their honest beliefs or suspicions into facts. This was stated in the report of the tribunal and ought to give us pause for thought, particularly when we are dealing with what used to be know as helping with inquiries, people being invited down to the Garda station to assist the police in their inquiries. It is clear that in certain circumstances the suspicions elevate themselves — in the words of the tribunal of inquiry — into facts.
With regard to the law and this question of interrogation, the Irish judges have determined that gardaí are not entitled to arrest a person solely for the purpose of interrogating him. However, if they do arrest a person, that person is detained and they may then, by accident, suddenly hit on something. As long as there is not a direct cause and effect sequence established in court that does not invalidate the conviction. In other words it is kind of a nod and wink situation. The Garda can arrest somebody and not say that they are arresting that person for the purpose of interrogation. If they then get a confession, more power to them. That is also something that ought to give people cause for concern.
With regard to section 4 of the 1984 Act, the whole thing is kind of elaborate, a tissue, a confection of words calculated to mislead people. It gives people the impression that there are various safeguards, which do not in fact exist at all under the provisions of legislation. For example, what is reasonable cause? Reasonable cause could be information supplied by an informer and if the suspect seeks to determine what this reasonable cause is and if it is from an informer, then the Garda do not have to reveal or disclose the source of the information. Even a justice will be very reluctant to do that, particularly if questions of security are pleaded.
We are told by the Minister that there is a six-hour detention. We discover then by closer examination that there is actually up to 20 hours. That ought to be put in context. The United Kingdom Royal Commission determined that in most cases two hours are all that is necessary for 80 per cent of convictions. So 20 hours is ten times what has been determined to be the usual, necessary period for securing a conviction. A number of quite notorious cases in which there have been miscarriages of justice did not require 20 hours or even six hours — they required far less. These include the Lynch case, the Joanne Hayes case and the 1991 Damian Marsh case which I already cited. It is important to bear in mind the fact that two hours seem to have quite a remarkable impact upon people.
Let us look at this question of the guardian. The O'Briain Committee recommended the creation of a guardian in the police station who would look after the interest of a detained person. What have we got? The officer-in-charge. That might appear to satisfy some people. I do not want to impugn the reputation of the police but we must make sure in law that we do not provide for a situation in which abuse may occur. I would cite the O'Toole and Hickey case of 1990 in which the Criminal Court of Appeal extracted the teeth of this safeguard. The court decided that it was acceptable if the officer-in-charge was told by the arresting officer that the detention was necessary. In other words, the arresting officer says that it is necessary and the person in charge agrees. The safeguards are defective.
Let us look at another one. This is the question of the admissibility in evidence of a statement even where the Judges' Rules that we have heard of have been abused. It does not affect them. Even if there has been a violation amounting to criminal activity on the part of gardaí in extracting a confession, it does not violate the admissibility of the confession. That is precisely what we were talking about in the Birmingham Six and Guildford Four cases. The fruit of the rotten tree should be suspect but it is actually guaranteed immunity under this legislation. This is utterly deplorable.
Also there is a variety of treatments from the different judges. In the first couple of years from 1984 some judges were refusing to send people forward for trial if there was non-compliance with the 1984 Act or the 1987 regulations. In 1990 in the Keating case, the Supreme Court decided that any probable detention under the 1984 Act should be left to the trial for decision. This gives a kind of postponed justice. In other words, the whole question of illegality can wait until the trial and somebody can be subject to injustice for this period.
Then, of course, there is the whole business of the voluntariness test. I do not have time to go into this at any length but I would like to point out that the Birmingham Six and Guildford Four convictions passed this test. Where does that leave us?
With regard to the offences Against the State Act and the question of ordinary crime, I have already referred to the Quilligan case in 1986 where somebody was arrested under the provisions of section 30 of the Offences Against the State Act and then charged with another crime. In the 1988 Howley case the Supreme Court went further. The accused had been arrested and detained under section 30 and when he was in custody he was interrogated about another offence, in relation to which he could not have been detained under section 30 of the Offences Against the State Act and the Supreme Court accepted this. There is a direct parallel with the Dessie Ellis situation here at the moment. In other words, the Irish Government take one position in their own domestic courts and quite another when they are dealing with foreign courts.
I will return to this business of voluntariness and cite a couple of cases very quickly. For example, in the Pringle case in 1981 the judges accepted that a lengthy interrogation while the suspect was in pain from a bullet wound, together with deprivation of sleep, would have amounted to oppression if he had been an ordinary person but his lordship determined that as this man was a fisherman he was therefore used to a life of hardship, so it was no big strain on him. The Court of Criminal Appeal said: "He was apparently an experienced man of the world not unused to conditions of physical hardship."
This brings up the question of inconsistency of court determinations. In the Shaw case in 1980 the judges ignored the fact that a suspect had been interrogated in a games room in the Garda station where the gardaí maintained they had to hit him a few belts in order to defend themselves against assault from the suspect with a snooker cue. The judges did not feel it necessary to find out from the Garda why he was interrogated in this most unusual location although in the Breatnach case, the Sallins mail train case, the judges eventually found that interrogating a suspect in a tunnel behind the Garda station took the Garda very close to the limit of breaking the law themselves. There, again, is an inconsistency.
In the Lynch case a suspect spent two years in prison for a murder he had not committed but for which he had confessed. The Supreme Court judges decided his confession had been the result of oppressive questioning, but in the Pringle case, which I have already referred to, the judges were prepared to accept a confession which had been obtained in extreme conditions, the reason given, as I said, that the man was a fisherman. But Lynch was a soldier. Who is going to maintain to me that our Army is wetter, if I may say so, than our fisherman? Also, there is no independent verification of these procedures.
Let us look at the question of right of access to a lawyer. We do not really have it in the way ordinary people would expect. They are not really positively told they have right of access to a lawyer. The access is also conditional on the police determining that it is not counterproductive. There are problems also with regard to the holding of minors. A suspect has no right to a lawyer's advice before interrogation. They can summon a lawyer, but if he does not turn up or if they cannot afford a lawyer, they have no right and the right is abrogated. The right to silence has been quenched. But what about the Winchester Three case? I have my doubts about that myself.
I will conclude by putting on the record a list of recommendations. I would like the Minister to introduce, first, a right not to be arrested unless the Garda have an objectively verifiable basis for believing the person has committed a crime; a right to be given the reason for his or her arrest at the time of arrest and a written statement for those reasons as soon as possible after arrest; a right to remain silent in the face of Garda questioning or interrogation; a right to a lawyer upon arrest and to be notified that he or she may not be asked questions until he or she has a chance to consult with a lawyer; a right to a lawyer at the State's expense if he or she cannot afford one; a right to have a lawyer present during interrogation; a right to stop an interrogation at any time and to obtain legal advice at any time; a right to be brought before a court with reasonable speed and, more specifically, before the next sitting of the relevant court; a right to have his or her voluntary confession tape-recorded and to have his or her own copy of the tape; a right to have a confession declared inadmissible at trial unless it can be corroborated by substantial independent evidence.
There were some positive implications in what the Minister had to say. I was very glad, for example, that he gave a kind of qualified commitment that he would introduce taping, either by audio tape or video tape, of interrogations in police stations. I believe that is in the interests of the Garda as well as the general public. I am opposing this motion for very clear, specific and detailed reasons which should not be construed as an attack upon the Garda for whom I have the highest respect. I wish them well. I am glad the crime rate is dropping, but we do not need these draconian laws.
I support this motion. I thank the Minister for Justice for the very comprehensive and informative contribution which he made to this debate.
The motion refers to those sections of the 1984 Act which will cease to operate after 30 June of this year unless both Houses resolve that they should continue in operation. As the Minister pointed out, the fundamental purpose of the 1984 Criminal Justice Act was to enhance the capacity of the Garda Síochána to deal with crime. We must all concede that the 1984 Act has played a vital role in the detection and prosecution of serious crime.
All of us remember what the situation was in 1984. It was generally accepted at that time that we had reached the stage where criminal activity was increasing at an alarming rate. There was growing acceptance among the general public that the Garda were almost powerless in their attempts to deal with the major criminal elements in the country and to deal with the various serious crimes which were being committed. All the odds seemed to be weighted in favour of the criminals. As a result of the introduction of the 1984 Act and as a result of the powers that were given to the Garda in that Act the situation was redressed. The powers which were given to the Garda in the 1984 Act are reasonable powers and are no more than are essential for the performance of their duties. They are the minimum powers required in order to effectively detect and prosecute persons who have been involved in serious crime.
The Minister pointed out that there have been very few complaints in relation to the operation of the 1984 Act and, in particular, in relation to the operation of the sections we are dealing with in this motion. As far as I can recall, I have not heard a single allegation that these sections are not being scrupulously applied and scrupulously implemented by the Garda. As I said, the 1984 Act has been effective and that is borne out by the statistics which the Minister gave us. There has been a significant reduction in many categories of serious crime.
Some of the examples the Minister gave us of areas where there has been a very substantial reduction have been attacks upon the elderly, residential burglary and the unauthorised taking of cars. In relation to attacks on the elderly the incidence of that type of crime has dropped by almost 90 per cent since this Act was introduced. Larcenies are down by 23 per cent and armed raids, which peaked as the Minister said at 685 in 1986, were down by 33 per cent by 1990 to 459. That is certainly very encouraging. I was also heartened by the statistics given by the Minister in relation to the allocation of resources to the fight against crime and the increased number of gardaí who are now operating on our streets and involved in police duties and also the fact that an additional 1,000 gardaí will be recruited over the next three years.
I welcome the assurance given by the Minister in relation to rural policing and in particular his assurance that there are no proposals for the closure of any Garda station or any reduction in Garda numbers attached to any station in rural Ireland. I welcome those commitments which were given to us by the Minister today.
In relation to the drug problem and drug-related crime, this is the most difficult area of all to combat and this is the area which in the future will require the most intensive input of both resources and manpower, mainly because of the amount of money involved in the whole drug scene. I am pleased to hear from the Minister of the new initiatives which have been undertaken and the further initatives which are proposed to deal with this very serious problem in our country. I am also pleased to note that the Minister informed the House that he is shortly to publish legislation which will provide for the seizure and confiscation of the proceeds of drug trafficking and of money laundering.
The Minister referred to the importance of co-operation and trust between the police force and the community served by the police force. Unfortunately, it is in those communities where the crime rate is the lowest that the level of co-operation and trust is highest. It is much more difficult to get the desirable level of co-operation and trust in those areas where crime is endemic and where it is a feature of society. The co-operation and trust to which the Minister referred is very important, but it is something which will require a considerable amount of hard work and effort if the desirable level is to be achieved in the areas where it is most needed.
I believe, as I said, that the provisions in the sections we are dealing with are reasonable. They have proved to be workable. The rights and interests of the arrested persons are safeguarded in a reasonable manner. No major difficulty or defect has manifested itself in the operation of these sections since the Act was enacted. It is in the interest of the country and in the interest of the continued success of the fight against crime that these provisions should be renewed.
I often wonder if I live in the same country as everybody else. I know people who would tell you, for instance, that they would be terrified to be on the streets of Dublin at night because they would have you believe that Dublin is awash with crime. The same people will travel on a continental holiday and walk around Paris, walk around some of the coastal resorts of Spain, and be oblivious to the fact that in many of those areas the crime, rate, by whatever index you use, is significantly higher than it is in Dublin. We have a remarkably low level of crime. By international standards, by the standards of any index you choose to pick, even if you were to included the frightful statistics in Northern Ireland in our statistics, we would still have a lower level of homicide than many of the big cities of the United States of America. Washington DC alone in a year will have somewhere close to 500 people killed in one form of murder or another. People will take off quite happily and not be in some sort of state of dreadful shock at the prospects of the threat to their own safety from visiting these places. But they tell you that they would be afraid to go to Dublin and walk around O'Connell Street at night for fear they would be mugged.
People have talked us into a crime hysteria. I am quite sick at this stage of my colleagues, particularly in Fianna Fáil and Fine Gael, working themselves into paroxysms about crime. I will talk about that again in a minute. Let us remember that we are, with our low level of crime, among the most policed countries in Europe. The number of policemen per thousand of the population in this country is higher than that of virtually every country in western Europe. We are intensely policed. The idea that the solution to our crime problems is dramatically to recruit more and more gardaí is nonsense. It is time we looked at the problem of crime, looked at international studies, looked at what works and stop picking knee-jerk reactions that go down, grab a headline and enable Ministers to give the impression that they are exercising their macho selves by being tough with what they like to call thugs, gangsters and criminals. A lot of what they do does not work.
Let us remember what we exist in. We exist in a State that is in a permanent state of emergency. We exist in a State that has, under the Offences Against the State Act, among the most stringent emergency powers in western Europe-enormous powers of arrest, detention, questioning, etc. Anybody who would have the less than pleasant experience of being followed home by the Special Branch that I have had on at least one occasion will realise that the sense of security that one has normally as a normal law abiding citizen, which is what I am, is quite different when you discover you are at the receiving end of somebody else's obsession and when you have people sitting outside your home until 2 O'clock in the morning, changing the guards until somebody else comes and takes over looking at you because you happened to be in the wrong place at the wrong time and they decided you were suspicious and worth pursuing. You begin to realise that you have to examine very carefully whether you need all these powers.
We have, as I said, a state of emergency and the Offences Against the State Act. There are two issues about that: the first is whether the Offences Against the State Act is necessary and the second is whether it has worked. On that issue we should look at some of the statistics. We have had some frightful crimes from time to time. We have had attacks on the elderly which were appalling and which, thankfully, have now subsided. We had a huge spate of burglaries in Dublin. We have had sporadic spates of car theft.
Let us look at the burglaries. There was an enormous spate of burglaries particularly in urban areas, pretty petty burglaries, in most cases non-aggravated burglary not involving violence against people. There were some spectacular exceptions, but it was mostly that. It is no coincidence that that spate of burglaries coincided with the onset of a considerable rise in the abuse of drugs in our major cities. As surely as night follows day, the logical conclusion is that most of those burglaries were being carried out by people who were actually trying to feed their drug habit. As we came to grips with the drug problem so the spate of burglaries declined.
The other old gorey chestnut for members of all sorts of authorities, whether it is the Oireachtas or local authorities, is car theft. There is nothing our newspapers like more than a good joyriding car theft story to grab headlines, which, in my view, romanticise it, glamourise it, popularise it and generate the sort of publicity which gets irresponsible youngesters into the mood for doing the same thing and you end up with a cycle, a spiral upwards leading to more joyriding. I am sick to death of the law and order lobby in this country. It seems that, notwithstanding all their crocodile tears, they are effectively jumping on the backs of people who have been the victims of crime to produce recommended solutions that they should know by now do not work. If one thing is true it is that more prison sentences and more police powers — unless you have the type of draconian powers that used to exist in eastern Europe until the recent much to be welcomed changes — do not make a difference, in the same way that the death penalty never could be shown to be a deterrent in the area of homicide. Let us not forget that the United States is reintroducing the death penalty with an alarming enthusiasm and it is not doing anything to the rate of homicide in the United States.
Longer prison sentences do not deter. More prisons do not deter. What does deter is the prospect of being caught and, in my view, that is based on a number of things. One, good, well-trained police with the resources — not numbers — and the support of the Community to back them up. We could and should look at one of the fundamental problems, which is that there are large communities in our cities today where no policeman resides, where no policeman would dream of bringing up his family, and therefore as far as those communities are concerned the police are entirely an external force which comes in to work in their area. However well intentioned a policeman may be, the fact that he or she has no connections with the area other than for the period of employment guarantees a degree of alienation.
When you have the extra difference of the experience that 80 per cent of the community are unemployed and that the gardaí are employed and moderately paid — and that is all you could say about it — you have another gulf. We have to bridge that gulf, and that state of affairs, if we are to get the sort of co-operation and trust required between the community and the police. It is a fact that there are whole communities where the presence of the Garda is regarded as a sign of trouble. That is the way to increase detection rates and to build up the community trust that will make draconian legislation like this offensive 1984 Act unnecessary.
As I said, I am becoming quite fed up with the law and order lobby. For years I have seen this handwringing by a variety of spokespersons from Fianna Fáil and Fine Gael. At the same time the Criminal Injuries Compensation Tribunal trundled along, almost unheard of, almost inaccessible, in an almost secretive silence, behind a door which did not open and where somebody spoke to you through an answering machine. Its compensation powers were severely restricted, and have been even more severely restricted in recent years. This was an institution set up to compensate the victims of crime and what did all those who command an overwhelming majority in both Houses of the Oireachtas do? They made it less useful. That is what I call unconcern for the victims. Locking up the criminals will not make one scrap of difference to the victims. Proper support, concern, care and a good system of compensation will make a difference to a victim. The Irish Association for Victim Support has almost gone out of existence on at least one occasion because of absolutely miserable State support.
I do not understand why the vast majority of the Members of these Houses, who can get so worked up when a good headline is available about law and order, do not do something practical about the victims instead of forever talking about locking up the criminals. If they had a spark of this compassion that they tell us, those of us concerned about civil liberties, we should have about the victims of crime, they should be doing that instead of jumping on the law and order band wagon every chance they get. That is the way to deal with the victims of crime and they do not seem to want to do it. I am sick to death of people with their macho instincts proving their virility by dealing with what they call thugs and criminals.
This legislation and these sections of it were unnecessary in 1984 and nothing that has happened since has convinced me that they are anything other than unnecessary. They were unnecessary then and were balanced by the necessity for this exercise. It is perhaps an indication of the declining concern for civil liberties in this country, the declining interest in them as an issue, that the Press Gallery has been empty for the entirety of this debate and that, with the exception of the three of us here and the four excluded Members of the Labour Party, there will be nobody else even to question this renewal.
The Acting Chairman is looking cross.
He would not be able to look cross; he is far too nice a man to look cross.
The Acting Chairman will speak for himself.
He should not be intervening in debates either.
I will be quite happy to have you interrupt me to tell Senator O'Toole——
Please allow Senator Ryan to continue without interruption.
This legislation was operating under the shadow of this need to renew it this year when it was first introduced so it is reasonable to assume that a certain delicacy or sensitivity would be exercised in regard to it. Contrast the detailed statistics and the 50 per cent charge rate with the operation of the Offences Against the State Act. In 1972, 229 people were arrested under the Offences Against the State Act and 81 per cent were subsequently charged. In 1987, which is the last year I could dig up statistics for, 2,387 people were arrested under the Offences Against the State Act and only 20 per cent were charged. As people got used to it, as the public suspicion changed, as perhaps the law and order lobby got themselves into one of their periodic frenzies, the numbers of arrests under the Offences Against the State Act went up and the proportion of those arrested being charged went down to a shameful 20 per cent.
It is shameful that under such draconian legislation 80 per cent of those. arrested could not be charged. The excuse I got from a previous Minister for Justice, a Fine Gael Minister for Justice, was that most of the others were hardened criminals who were able to sit at the wall and ignore the gardaí and that was why they could not be charged with anything. It is because it is being used in a kind of catch-all way to arrest people who might possibly be suspected of something, because it is difficult to challenge the concept of reasonable suspicion that people make so much of a fuss about in this legislation. A garda can claim privilege in court and in most cases will be allowed privilege if he says that the sources of information on which he based his suspicion were privileged. The evidence is that once powers like this go beyond parliamentary accountability and become part of the law the extent to which they are used will be greater and greater. None of the niceties that currently exist will be retained because there will be no future accountability.
The evidence of abuse of other powers is enormous. I have here a copy of Magill magazine which describes in great detail from July 1987, the experience of Siobhán Troddyn when she was ejected from the Fine Gael Ard-Fheis and arrested under the Offences Against the State Act on suspicion of membership of the INLA. She was an exception because she knew her rights and had access to a good lawyer. She ended up being paid £5,000 compensation by the State for unlawful arrest under the Offences Against the State Act. That was simply because she had the disgraceful nerve to interrupt the Fine Gael Ard-Fheis. Quite truth-fully——
It was not Twink?
She was badly needed last week.
Please allow Senator Ryan to continue without interruption.
I must say Senator Ryan welcomes these interruptions and would encourage them.
The Acting Chairman may not share your view.
Let me remind the House that in 1985, under legislation that nobody has ever sorted out, over 30 women in the Phoenix Park ended up spending a weekend in the Bridewell, all of whom eventually got compensation from the State. They were specific instances, but the most serious is the abuse of the Offences Against the State Act. Just to show you the way people become sensitive. In the year that Mr. Trimbole was in trouble with the law the numbers of persons arrested after the Trimbole case under the Offences Against the State Act dropped the following year because of a certain sensitivity by the Garda. The figures were that in 1984 they arrested 2,216 under section 30; in 1985 that went down to 1,834 due to a certain sensitivity because they had been caught out on Mr. Trimbole. I would recommend evey Member of this House to read the judgments of the Supreme Court because the problem with the Garda does not relate to the vast majority who will operate according to the law; the problem is the enormous powers certain people have which apparently they get away with. That is why these powers without proper constrainst with nothing more than the vague thing of reasonable suspicion to protect the citizen, are wrong. If people want to take away people's liberty then they should be obliged to have more than a vague notion that the person is guilty of something.
It was in 1984 or 1983 we discussed the Criminal Justice Act in this House. At that stage many of us were concerned about children and about how this Act would impact on them. We were then told about all the plans that were in train to deal with juvenile justice. Notwithstanding the Minister's comments here we still have an age of criminal responsibility of seven. The idea that first communion children can be somehow guilty of criminal offences is so ludicrous as to defy even the remotest intellectual argument.
We still do not have adequate proper detention centres for children who are severely disturbed and we have these powers applying to them and we have certain sleights of hand in the Forensic Evidence Bill that went through this House which will mean, for instance, under the law, the gardaí do not have to notify parents. I will not go into it now but there are deficiencies in that I pointed out then about the rights of children.
The Minister takes great pleasure in producing these statistics. The truth is that 50 per cent of the people who were arrested under the Criminal Justice Act 1984 in the period from 1987 to 1990, were not charged. If that is a good definition of reasonable suspicion, then all I can say is pull the other leg. If reasonable suspicion means that you have one chance in two of being right then I would like to now what a vague notion is. They are not acceptable statistics.
We were told that this legislation would be used where the Gardaí had some reason to connect somebody with something and wanted to detain that person so they could investigate other matters. The ratio of 50:50 is hit and miss. When you look into it and realise that of the people who were not charged 5,000 were held for over three hours. It took the gardaí three hours to decide to let them go. Over 500 of them were held for between nine and 12 hours and then released.
I say the case for this legislation in terms of its usefulness in preventing crime, in terms of its deterrent effect, in terms of its addition to the powers of the gardaí is far from proven. It should be under continuous regular review in both Houses of the Oireachtas, which the then Government refused to consider. Therefore, in the interest of civil liberties, the legislation is not necessary, it should be opposed. I am opposing it. If those in front of me and on the other side of the House want to be concerned about the victims of crime, they should look after the victims support group and the criminal injuries compensation tribunal and stop taking away what is left of our civil liberties.
I rise to support the motion. I do so because I am firmly convinced that the Garda need to have the strongest possible facilities in order to combat the new breed of criminal thug that is so frequently encountered in every part of the country. I should like to avail of this opportunity to call in the clearest manner for a very indepth look at the entire penal code. Before you can expect Members of the Oireachtas to be in a position to share the care, it is not just sufficient to have law breakers for whatever crime locked up and forgotten about. We have a further responsibility. I feel there must be a greater element of re-education, rehabilitation, that people should get a second or even a third chance. If you look at our prison service and the Victorian buildings we have everywhere, with the exception of Wheatfield, perhaps the Minister could do worse than to invite all of the Members of this House on a tour of at least three of the prisons.
The courts do a good job but if one talks to prisoners and one finds that men are relaxing in confinement for five, six or seven years, especially those who were involved on the fringe of serious crime, the whole system is indeed harsh. The parole system should be examined again. I compliment the Minister for his recent relaxation of the entire parole system and the new look he has given to it. Those people who have left organised crime, the Provisional IRA or any one of those prescribed organisations, get a poorer response to their applications for parole or facilities than do the people who remain in those organisations in prison. That is a pity. There is need for greater expenditure on rehabilitation to try to turn those people around. We need to dedicate ourselves to sharing the care for all the people of this country.
I have some knowledge of Portlaoise Prison and if you listen to the stories some of the 200 prisoners have to tell, one cannot come away without feeling that there is an intransigence and a harshness in the entire system. If we continue on as we are with the penal code, we will very soon find ourselves no better than some of the very harsh eastern countries where people are just incarcerated and seemingly forgotten about.
I would like to see for prisoners, perhaps with the exception of those convicted of actual first degree murder, greater resources being provided for rehabilitation. The day rooms and the recreational facilities, especially in Portlaoise and Mountjoy are harsh. Even thought in the occasional riot situation, the furniture will be torn up, broken or burnt, nevertheless there should at least be better facilities provided. Wheatfield gives the Department an opportunity to assess the way the ordinary criminal will react to a modern setting and comfortable facilities. I was taken aback and rather disturbed to see disturbances there some weeks ago. I would like to see the sitting rooms and recreational areas in prisons being furnished more in live with what one would encounter in a hotel or in a lounge. That may sound extravagant but when you look at the overall cost of keeping an inmate in one of our institutions, the provision of an extra £300 or £400 on more modern furniture to try to soften the atmosphere, to try to help those people to relax and soften up and not keep them in austere cages designed at the beginning of the last century.
There has been no improvement in the infrastructure of Portlaoise prison since it was built in 1819 except for the erection of steel safelike doors. The rest of the infrastructure is much the same. I do not want it to be taken from that that there has not been a tremendous number of improvements there in staffing, facilities and food, which is of a high quality. The health and care of the prisoners is very good but the atmosphere there is wrong. It does not belong to the end of the 20th century.
I ask the Minister to urge his Cabinet colleagues to provide a very significant increase in the amount available to his Department for the updating of our penal institutions. If we have to have them we must have ones that reflect the kindhearted approach of the community at large. That is why I would like the Minister to consider opening the doors of two or three prisons. Of course, there is a wide volume of opinion in the country that would suggest that we should all be inside permanently. I believe our colleagues should have the opportunity to look at our prisons for a couple of hours and at least see the lack of rehabilitation, and the lack of educational facilities. D Block in Portlaoise holds about 80 prisoners, who are not political prisoners. In the main they are fine, athletic young men but 80 per cent of them have one thing in common, they are practically illiterate. That is a sad reflection on many areas of our society.
I do not think sufficient finance is being allocated to give those people a chance. It may be a second chance, it may be a third chance but the one thing they missed was basic education, the facility to read and write and to be able to follow on with a trade. In the main there was only one avenue, the avenue of crime left open to them.
Many of our institutions are more or less schools for scandal where the béaloideas is passed on, where you have very tough characters and many despicable characters but at the same time those who have to spend a considerable time in prison, those who slipped up or made mistakes along the way, should get another chance, another opportunity. We profess to be a great Christian society and our penal service should be to the forefront of what is desirable in the world. We cannot preach one thing and turn a blind eye to the plight of people. A prisoner in E1 in Portlaoise called Paddy Duffy is doing a long prison sentence for hiding two cars which were associated with a very serious crime. I cannot understand why that man should be doing ten years for merely doing that. I am horrified that our system is so austere.
I would like to welcome the Minister's appointment. I believe the last time we had the Department of Justice up to full strength was the first year I came into this House when the present Taoiseach was appointed as Parliamentary Secretary to the Minister for Justice and had responsibility for law reform. I hope the Minister of State will forge ahead to bring our institutions into a situation where they will lead the way and give greater help to those in our society who have, perhaps, been less fortunate than the majority. I am confident that the Minister of State will take this part of his role very seriously and will leave his imprimatur on it.
I support the motion because I believe it is necessary to give the law enforcement agency, the Garda, an opportunity to compete with modern day criminals. If we are going to give those extra powers and extra facilities then the prison service must be brought up to a standard where the expenditure will be of benefit to the community in general.
I agree with much of what Senator McDonald said and I hope he will join in the footsteps of an illustrious party colleagues who, on a previous occasion, took that very attitude on this legislation. I can say the only time I was in this House before I was elected was the night of the vote on the Criminal Justice Bill in 1984. I was the guest of a friend, a Fine Gael Senator, who was the Fine Gael Whip. I met him on the stairs and he said "O'Leary is voting against the Bill". I remember well meeting Senator Seán O'Leary that night and expressing my delight that somebody had taken the line he had taken.
The previous week I had been speaking outside the GPO to a large group of loyalists against this negative and regressive legislation. I must say I found it appealling — it is a picture that stayed with me always — of Special Branch people taking notes of my speech when the attacks on the elderly, as referred to in the Minister's speech, were going on around the block in some of the more deprived areas of the city.
I opposed this measure before it became legislation and I continue to oppose it. I intend calling for a vote against it this evening. It is regressive, negative and reflects poorly on our society. It is critically important that people understand what happens in our prisons. It would not be a bad thing at all if Members of the Oireachtas had the opportunity to spend a week or two behind bars just to get the feel of what it is like and what is meant by the deprivation of constitutional rights.
I want to dissociate myself immediately from the comments made by some Senators today that there is not a need for a prison system nor a need for the proper exercise of authority and proper punishment for those who break the law. I do not have any difficulty with that but I have enormous difficulty with this legislation which is based so much on belief, on hearsay and I "believe", etc. I will not go into the legislation. I do not intend taking up my time with that. I spent some of the best years of my youth trying to oppose this legislation and I am tired. I have failed every time and I do not expect to win today either.
In regard to the way in which we approach the prison system it would be a lot cheaper for the State if we were to build walls around Ballymun or Darndale or around the inner city and not let those people out. In effect, that is what we are doing here. We are, in effect, consigning the underprivileged to jail. The reality is that, invariably, 90 per cent of the prison population come from the same parts of our society, from the same parts of our community. The underprivileged, the disadvantaged, the illiterate are the ones who make up the very largest proportion of our prison population.
This State set out, before its first Constitution, to cherish all the children of the nation equally. Of course, the conspiracy for 70 years, which has ensured that those words have never moved from the Proclamation of the Republic into any one of the three Constitutions, is unfortunate indeed. Could the Minister tell me why it is always those from the same parts of society — the underprivileged, the disadvantaged, the unemployed, those in the greatest poverty and the illiterate — who make up our prison population? We should address that point. To many of us the answer is very clear. It is that when we apply the test of looking at the newborn children the reality is that just simply asking the address of the children will allow us to paint a very clear profile of where those children are likely to be in ten, 20 or 30 years' time and we know exactly the areas which will produce the present population. When will we break this cycle of deprivation and under-privilege, this vicious cycle of need, poverty, disadvantage, under-privilege, unemployment, illiteracy and, ultimately, imprisonment? Why do we continue to punish the under-privileged and the disadvantaged with harsh laws, incarceration, imprisonment and punishment?
The Minister was able to tell us this morning about the proposal to open a new institution for delinquent girls in Ard Mhuire at Lusk. Nobody could say that is not needed the way our society is at the moment. I hope that in opening it this time the Minister will ensure that the people involved in all the professional areas of that institutions are fully trained and qualified to do the job required of them. In previous efforts to open similar institutions in Cuan Mhuire, in Ard Mhuire and in Trinity House at an earlier date attempts were made by the State to put in unprofessional people to do professional jobs. I want to make it clear to the Minister that is something I am not prepared to tolerate on this occasion.
The cost to be the State of the incarceration and the imprisonment of under-privileged people could be off-set and could be reduced by making available proper support services at an earlier date. The cost of keeping one person imprisoned is more or less the cost to the State of having available an educational psychologist to address the problems of young children at an earlier age.
Last year in one of the Dublin prisons a young man in his late twenties committed suicide and there was the predictable response from the usual sectors. The young man was from a very deprived area close to Clontarf in the north inner city; Clontarf is not noted for being under-privileged but there are areas close to it where things are very difficult indeed. I took the trouble to check on that young man just to find out what his background was because I was addressing the area of disadvantaged and under-privileged at the time. I was lucky to be able to trace his career from age four and I was able to get his school records. His crime had been widely reported in the papers at the time. He was in jail serving a life sentence for a most vicious murder of a teacher who had found him in his house late at night engaged in a robbery, as it would appear. This teacher chased after him. Somebody had a golf club but eventually the teacher was killed and for that crime this young man was found guilty and was incarcerated for life. I do not think anybody would object to the sequence of events at that point. I have letters written when he was six, seven, eight and nine, when he was still in an infant school in Clontarf and where the school authorities requested from the Department of Education, some form of psychological assessment for this pupil. I have a written record saying that this child would finish up in serious trouble if he did not get help and support at that stage.
That child went through infant school, the rest of primary school and the story was the same. It was the same in post-primary school, he was a failure at all levels. The point is he was identified at the age of five in a written statement by his teacher at that stage as somebody who would finish up in trouble. The words were that this child would come to a difficult end unless somebody intervened at that point. Nobody intervened so he went on to take a person's life and eventually take his own life, two deaths. That is the true story and it really is a reflection of where we are at in society.
I am not suggesting for a moment, that that is typical but that is a true story. The typical case is more ordinary. It is somebody who goes through primary school in an under-privilged area, where there is less and less support, where there are fewer and fewer chances of education experience, where the child fails to make it at post-primary, drops out early on because of lack of qualifications; because of the incorrect address he does not find employment, because of unemployment he is in poverty, because of poverty he is in need because he is in need or she is in need will eventually resort to crime.
I am not saying that any one step justifies the next. I am simply taking us through the stage, one after the other, and that person finishes up in jail. That is the norm for parts of the inner city and in the under-privileged suburbs in the outer city. I am simply making the point and will continue to make it ad nauseam that the building of prisons will not solve the social problems, which are the direct result of under-privileged, disadvantage, poverty, illiteracy, unemployment and all the other aspects of poverty in Ireland. We would have been better employed addressing some of those issues.
I am completely opposed to this legislation, as I have been long before my election to this House. I spoke against it when it was first mooted and when it was first published as a Bill and I have continued to be opposed to it ever since. I have seen the legislation being abused time and time again. I use the word wisely; I believe abuse is the only way I can describe it.
Gardaí have told me that very often it is the only way they can hold people. It is being used as a way of holding people rather than as a response to the needs set out originally when the Bill was brought forward. That is the reality. We are failing to address the problems of society, we are not doing it with this legislation. It does not address the problems of the homeless who finish up in prison, it does not address the problems of the illiterate who finish up in prison or all the other groups to which I have referred.
The Minister is under increasing pressure to ensure that this legislation stays on the Statute Books. I have no doubt that the law and order lobby love this kind of legislation. Where do we intervene? Do we say this person has committed a crime and put him or her in jail so, therefore, we need jail, we need this authority. Is that the end of the story or do we say we should intervene earlier?
I have a very simple line. There should be a two-pronged approach. If somebody commits a crime that person should be incarcerated. I believe that prison is about the taking away of liberty as much as it is about rehabilitation. It should be about both of them and I agree with Senator McDonald on that point. I believe that part of it is the deprivation of liberty and I certainly have often argued that point with my colleague Senator Costello. This is part of it and I do not object to it. However, we have to look back earlier. Why did this person become involved in crime in the first place? Where did the system fail that person? Are we saying that the day that person was born, he or she had something within them which drove that person to crime? I do not believe that to be the case. I do not believe that people are born with an innate motivation which pushes them into crime. It is the circumstances of their lives, the background, the housing, the community, the deprivation, the under-privilege, that pushes them in that direction. I realise it is easy for people like me to stand up here and say what I am saying. I may well be accused of not looking at the needs of society but I will dispute that. I agree with the process of imprisonment and punishment for crime and I feel very strongly about it. I am speaking as somebody who has had his house burgled seven or eight times to my intense annoyance and serious loss. I have suffered from crime but that is not the point. The point is that crime will be there until we get at its cause. All we are doing in this legislation is responding to crime. We should anticipate crime, get our action in first to ensure that people do not find themselves in a crime environment. I am vehemently opposed to the proposals in this motion and intend voting against it.
I wish to thank all the Senators for their contributions to the debate on this motion. The 1984 Act provisions are very important and it is fitting that they should have been the subject of such a good, wideranging debate and of such general support. I am firmly convinced that the most effective deterrent against crime that we as a society can provide is the creation of the position where persons who engage in criminal acts know that there is every chance they will be brought to justice and punished. The detention and other provisions of the Act are vital in this area and it is essential that they continue in operation. Of importance also are the safeguards which have been built into the various sections of the Act and about which the Minister for Justice commented in detail in his opening speech.
The enactment of the 1986 legislation concerning Garda complaints procedures, the establishment in 1987 of the Garda Complaints Board and also the making of detailed regulations in 1987 regarding the treatment of persons in custody in Garda stations, have put the Garda powers under the 1984 Act into a comprehensive context of checks and balances. I am glad to say that these safeguards have been commented upon favourably by the Martin Committee as ensuring that the rights of the person being questioned are upheld.
The debate on the motion has been wideranging but I shall try to deal with as many points as I can. Senator Neville referred to the need to tackle the problem of crime. The Minister for Justice dealt at length with the measures which have been taken and which we propose to take in this area. Since becoming Minister for Justice in 1989, Deputy Burke has committed himself to providing for the Garda force, at Government level, the resources necessary to provide for the safety and security of all our citizens. In that time we have seen a recruitment campaign for 1,000 new gardaí and a far-seeing allocation of many state of the art facilities and resources.
It was recently announced that the Government had approved a new Garda recruitment competition to recruit 1,000 men and women into the force. This will fully maintain the membership of the force and provide a guarantee to the people that the law will continue to be enforced as effectively and efficiently as possible.
The Government's commitment to a programme of reform in the criminal law area is clear. A number of important Bills have been enacted recently: the Prohibition of Incitement to Hatred Act, 1989, the Larceny Act, 1990, the Criminal Justice Act, 1990, the abolition of the death penalty, the Firearms and Offensive Weapons Act, 1990, the Criminal Law (Rape) (Amendment) Act, 1990 and the Criminal Justice Forensic Evidence Act, 1990. The Criminal Damage Bill, 1991 is before the Dáil at present. The Minister hopes shortly, to be in a position to publish a Criminal Evidence Bill and also a Bill to provide for the seizure and confiscation of the proceeds of drug trafficking and the prevention of money-laundering, and he further expects to bring forward proposals to amend the law relating to certain sexual offences, including homosexual offences, and in relation to criminal insanity.
The Law Reform Commission are at present conducting a comprehensive review of the law on dishonesty and fraud, and their recommendations will be dealt with, when received. This record is clear evidence of progress on criminal law reform and of the effectiveness of the manner in which it is being tackled.
Senator Neville also referred to the need for the establishment of a separate criminal law reform commission. Our approach to the need for updating criminal law is to deal with the matter on a systematic basis, affording priority to those areas most in need of review. In this we are assisted by the work of the Law Reform Commission who have published recommendations on many aspects of criminal law and are currently reviewing other criminal law matters.
Senator Neville expressed concern about the commission of offences by people on bail. As the Minister for Justice indicated to the Dáil in reply to a question on the second day of this month, he is aware of that problem. He pointed out that since the law relating to bail was strengthened in the Criminal Justice Act, 1984, by providing that a sentence of imprisonment for an offence committed by a person on bail, must be consecutive on any sentence passed or about to be passed on him for a previous crime, the number of offences committed by persons on bail has shown a very significant decrease.
In 1983 — before the 1984 Act was passed — 8,295 offences were committed by persons on bail. Last year the comparable figure was 2,494 offences. I accept that the commission of this number of offences by persons on bail is a matter of grave concern. The figures I have quoted do show, however, that contrary to some recent public statements the situation is improving. The Minister is continuing to monitor the situation, and if he is satisfied that further measures including an amendment of the law on bail are needed, he will bring forward appropriate proposals.
Senator Neville appears to think that the 1984 Act is not aimed at serious crime. On the contrary, the provisions in the Act cover specific indictible offences which are punishable by five years imprisonment or more. Senator Neville referred to the need for increased co-operation between police forces and the European Community in the context of removing the internal borders of the Community in 1992. This is a very important matter which is currently receiving the attention of the Ministers for Justice of the Community and high level departmental and European officials and police officers across the entire Community.
During the Minister for Justice Presidency meeting in Dublin last year a programme of action on this matter was agreed by the European Ministers and subsequently published. The programme of action contained a detailed list of measures designed to protect the citizens of the European Community when the internal borders are removed. This programme includes measures, for example, in relation to crime in general, drug trafficing and terrorism. Very intensive work is being carried out to give practical effect to the measures proposed and these will be subjected again to detailed consideration by the Minister for Justice at their meeting in Luxembourg next month.
Senator Neville referred to the need to look at the causes of crime and to prevent the alienation of socially deprived sections of the community and Senator O'Toole also referred to this situation. Both the Minister for Justice and I are fully aware of the importance of building up good relations between the Garda and the community which they serve. The Minister for Justice last week hosted an international seminar on the subject of Community oriented policing. That seminar discussed in detail initiatives by the police of various countries in socially deprived areas and an essential message in the address by the Minister for Justice here today is that the future of law enforcement in this country depends on mutual trust and co-operation between the community and the Garda. The Minister for Justice and the Department of Justice in co-operation with the Garda Commissioner and the Garda Síochána are placing a major emphasis on community policing, mutual trust and co-operation between the community and the Garda in the interests of detecting and preventing crime.
Senator Neville referred to the need to clear the backlog of the arrears of complaints to the Garda Complaints Board. Both I and the Minister for Justice share the Senator's concern about the backlog of arrears. As the Minister for Justice stated in his opening speech, there has been a very substantial improvement in the arrears situation which has been brought about as a result of the allocation of additional staff which were assigned to the Garda Complaints Board in late 1989. The real backlog of complaints has dropped by about one-third over the last six months and this is very substantial indeed. Notwithstanding that, the Minister for Justice is actively pursuing the possibility of providing further staff resources for the board and provisions for this purpose have been made in the board's allocation contained in this year's estimates.
Senator O'Donovan praised the treatment regulations which provide for the first time a statutory code of practice to be followed by the Garda in dealing with persons in custody; previously, Garda instructions were confidential. The aim of the regulations is to ensure that the Garda, at all times, act with integrity and with respect for the personal rights of persons in custody, particularly any of them with physical or mental disability and with respect for their dignity as human persons, while complying with the obligation to ensure their safe custody while continuing to act with diligence and determination in the investigation of crime and the protection and vindication of the personal rights of other persons.
It is noteworthy that the Martin Committee stated as follows:
The information which we have received from defence solicitors is to the effect that, without exception, the "member in charge" in a Garda station for overseeing the regulations takes his responsibilities seriously and ensures meaningful compliance with the regulations.
I think Senator O'Donovan clearly illustrated that situation in his contribution.
Senator Norris suggested that the 1984 Act provisions could lead to a similar situation here as happened in our neighbouring jurisdiction. However, I would like to refer the Senator to what the Martin Committee said on this matter and I quote:
The submissions made to us lead us to believe that the conviction in our courts and imprisonment of innocent persons in circumstances similar to those which have recently come to light in another jurisdiction is entirely unlikely.
That is not to say there is no need for reform in the law to cover the possibility of miscarriages of justice. Senator Norris seemed to be of the view that there are no safeguards in the law against or regarding the arrest of people. However the Martin Committee deals with this situation and where substantial doubt as to the propriety of a conviction exists, it recommends the setting up of an independent body with statutory powers of inquiry. The report raises important issues concerning the respective functions, under the Constitution, of the Executive and the Judiciary and these require careful consideration. The Minister's priority in this matter is to get the correct response to the recommendations rather than one which could have unforeseen consequences on public confidence in the courts system. The matter is under active consideration and I can assure Senators that there will be no undue delay.
Seven years.
I do not like the cynical attitude being adopted by the Senators.
You are the cynic.
I have listened with interest to Senator Brendan Ryan since I came into this House talking about Fianna Fáil and Fine Gael standing by banner headlines and all this type of thing. There is no greater exponent of a man grasping at banner headlines than himself because you talk out of context to suit a particular situation.
We are coming down with media guruism.
Thank God, we do not have to worry about those people. We turned down the offer.
The terms of reference of that committee were so restricted that they could not deal with the subject of today's debate.
I ask the Members of the House to allow the Minister to reply.
For the benefit of the House, arrest without warrant must be based on reasonable suspicion objectively held by the arresting garda. The reasonableness of such suspicion, the justification for arrest and any ensuing detention are open to review by the courts. A person aggrieved by his arrest or detention is entitled to pursue the normal civil remedies and to have the matter examined by the Garda Síochána Complaints Board. Suspicion must be the result of an honest belief after all the facts have been ascertained and considered and what would amount to reasonable suspicion in any case involves an inquiry into the circumstances of the case for the purpose of ascertaining the state of mind of the members of the Garda Síochána at the time of the arrest. The criterion of having reasonable grounds for suspicion sufficient to justify arrest is not necessarily sufficient to justify a charge. Hearsay evidence, for example, may be sufficient grounds for reasonable suspicion but it is not sufficient for a person to be charged since it will not be admissible as evidence——
On a point of information how would you ascertain the state of mind of a garda?
Accordingly, the period of detention under section 4 may be used to dispel or confirm that reasonable suspicion. Senator Ryan referred to the use of the Offences Against the State Act, 1939 for questioning persons. Under section 30 of the Act a member of the Garda Síochána may arrest and detain a person whom he suspects of having committed or being about to commit an offence which is scheduled for the purpose of the Act. However, it is clear that the power of arrest under section 30 may not be used for the sole purposes of questioning persons and its exercise is subject due to judicial review.
I could not agree with Senator Ryan that there is no need for the kind of legislation we have in the 1984 Act. Senator O'Toole expressed the same view but the powers of detention under the 1984 Act have worked well and have been used with tact by the Garda. There are substantial safeguards which ensure that the Act cannot be used indiscriminately or arbitrarily. The existence of recognisable, strictly limited and controlled powers under the Act has, if anything, lessened the pressures on gardaí to enter a grey area where it was not always clear whether the suspects were being detained unlawfully or not. Senator Ryan said that Irish people often have an exaggerated picture of the crime situation here even though it is much better than in many other countries. There is, of course, a danger of the crime situation being exaggerated and the Minister for Justice adverted to this today. However, I do not agree with the Senator's implied criticism that we have too many gardaí. Tell that to the victims of crime when they have been assaulted, when their houses, as Senator O'Toole admitted, are burgled or their cars broken into and they will most definitely not agree. It is important that crime is tackled on all fronts and that resources of the type outlined by the Minister for Justice continue to be made available.
I want to thank Senator McDonald for his contribution. He ranged widely over the prison system which we debated at length in this House some weeks ago. We have made major advances in our prison regime and services over the years and we are constantly striving to improve conditions for our prisoners. In a Utopian situation we would not need prisons but I am not too optimistic that we would ever be able to maintain law and order without them.
The House has had considerable opportunity to debate this very important situation and it is quite clear that, as legislators and public representatives, we must represent the common good. The Government have a fundamental, constitutional and legal duty to maintain law and order and I believe the Oireachtas must endorse the efforts of the Government in the interest of our citizens' and acknowledge that adequate safeguards for the maintenance of law and order exist and that the system operates in the interest of the common good.
Votáil.
Will the Senators who are claiming a division please rise.
Five or more Senators stood.
The division will proceed.
When is it proposed to sit again?
At 10.30 a.m. tomorrow.
