National Register of Bench Warrants: Motion.

Mr. Maloney

I move:

That, in view of the current difficulties facing the Courts in ascertaining those who have previously defaulted on bail, Seanad Éireann urges the Minister for Justice to create a national register of bench warrants.

The issue of bail has been high on the political agenda for some time. Its prominence arises from the public perception that crime has been increasing and that a new sense of lawlessness prevails in this country.

The figures indicate, however, that this is not the case. In numerical terms there has been no substantial increase in the level of crime. However, it is fair to state that while the overall level of crime may not have increased, its qualitative nature has changed. So too have the number of crimes committed by people who receive bail. According to Garda figures in 1990, it was estimated that there were 2,494 crimes committed by people out on bail. In 1994, this had risen to 4,416. For an increasing number of offenders, the law does not seem to matter. They are no longer seen to respect it. It is this brazenness that frightens the public. It gives them the feeling that these people are outside the law.

The Irish law on bail is relatively liberal in European terms. It is set down by a number of court decisions. Most significantly, the perceived likelihood of a person offending while on bail cannot be taken into consideration when deciding whether they should be granted bail. This undoubtedly leads to a sense of frustration among gardaí who see people being granted bail who they know are likely to reoffend.

The law on bail was recently the subject of a Law Reform Commission report. A number of interesting points emerged from that report. The rate of offences committed while on bail in Ireland is lower than in England, despite the latter's stricter legal regime. This, however, is not necessarily an argument against reform, but it does help to place the debate in a proper context.

Ireland, unlike most of Europe, has a much lower number of people detained without conviction. This is something of which to be proud because it reaffirms that the presumption of innocence until proven guilty remains the central element of our legal and democratic process. Considering the pressure for existing space in prisons, an area on which the Minister recently, and correctly, took action, rates of unconvicted prisoners similar to the 32.8 per cent and 51.6 per cent which prevail in Austria and Belgium respectively are clearly untenable in the Irish context, even if some people consider them desirable.

Interestingly, the Law Reform Commission report does not contain any recommendations to guide the Minister. This is due to the fact that it was not asked to make any recommendations. It does, however, spell out alternatives to bail reform, other that those dealing with preventative detention. These need not necessarily be alternatives, some could sit just as well with a reformed law. For instance, a reduction of the delay in bringing a case through the courts appears to be desirable in itself, whether there is any change in the broader law relating to bail.

Many of the suggested alternatives to bail reform seek to address the acknowledged problem of re-offending within the parameters of existing legislation. It is in this spirit that I bring this motion before the House. In his judgement in the People v. O'Callaghan, Judge Walsh reaffirmed that the sole purpose of bail is to secure the attendance of an accused at trial. Hence, the breaking of a bail bond is a reason to deny an accused person bail. The current situation is that the State does not have a national register of warrants issued by judges against people who have previously defaulted on bail and who could have existing warrants against them.

In many situations this does not matter, as the Garda are able to determine if a bench warrant has previously been issued against an accused person. If an individual garda is actively pursuing a case, he or she should be in a position to garner the relevant information. It is difficult to gauge how many warrants are issued in each year, but it appears to run into the tens of thousands.

However, there is also considerable anecdotal evidence that this is not always the case, the reason being that the system under which warrants are registered is inadequate. For example, if a warrant is issued against an accused it is sent to their local Garda district. If the Garda are unable to locate the accused within a period of time, the warrant is then returned to the point of issue. However, if the accused is arrested in another district for a separate offence, in certain instances it will be difficult for the arresting gardaí to determine the existence of a bench warrant against that person. It should also be noted that almost all bench warrants are issued because of failure to attend in court in breach of bail.

I am aware of instances where this happened in Dublin and it is known to be a problem by solicitors and district justices. If it can happen in Dublin, where court records are computerised, it can also happen, and is more likely to happen, in rural areas where records are still kept manually. The obvious solution to this problem would be the compilation of a national register of warrants issued. It would be much simpler than the current system if a garda or court clerk could instantly discover whether a bench warrant had been issued against an accused person.

I am aware that there may be problems with implementing such a proposal and I look forward to hearing what the Minister has to say in that regard. There is still much work to be done in modernising court systems, particularly outside Dublin. If we are serious about tackling the problem of crime, however, it is an issue that must be tackled. Extra legislation is required in the whole area, some of which has already been outlined by the Minister, but we must also ensure that the existing system is capable of coping with any extra burden the Oireachtas and the Minister seek to impose on it. The national register of bench warrants is only one such proposal.

This proposal is by no means a criticism of the Minister. This problem has not developed overnight. However, I believe the time is right to take action on it. I commend the motion to the house.

Ms Gallagher

I formally second the motion and add my support to Senator Maloney's remarks. This issue warranted and received much debate in the House on many occasions. In an effort to do something immediate and practical we felt it was worthwhile to table this motion.

There is a problem with our bail laws in the light of increased crime, etc. However, there are several ways of dealing with this issue. We must take a balanced approach rather than looking for a referendum without considering the other areas which must be addressed. When we discuss bail we are talking about someone who has been accused and arrested but not convicted. The principle of justice in any democratic society is that a person remains innocent until proven guilty. Natural justice determines that a person has a right to their liberty pending conviction. We cannot avoid discussing that crucial cornerstone of our justice system.

There have been miscarriages of justice in the past — for example, the Birmingham Six and Guildford Four cases. Although we have an excellent justice system, mistakes can still be made. We must remember that the criminal system requires someone to be brought to justice and tried fairly. Only then can that individual be deprived of their liberty, which is a serious infringement of any person's rights.

I listened to Judge Delap speaking on the radio this morning about this issue and he supported the decision in the O'Callaghan case. He said he had no problem with how the bail laws operated in this country.

Mr. O'Kennedy

I heard him too and he did not say that.

Ms Gallagher

We should remember that judges who have worked under the system have expressed support for it. He supported what Mr. Justice Walsh said in the O'Callaghan case, but he expressed concern that consecutive sentences are not being applied as they should be. That is a problem in our criminal law system.

The Criminal Justice Act, 1984, attempted to limit the discretion of judges in this regard, but it seems to have been ignored. It is ironic that while the legislation allows for consecutive sentencing of those who commit further crimes while on bail, it does not work in practice. This matter must be addressed. The attitude seems to be that if someone is out on bail, they might as well be hung for a sheep as for a lamb. The example given on the radio today was that if a person is in court on trial for armed robbery, they know they will be put in prison for a number of years so they may as well commit a number of robberies while they are on bail and in this way they will be able to provide for their wife and family before they are convicted. This problem could be solved if judges ensured that consecutive sentences were imposed.

If the Garda arrest a suspect in any part of the country they have no definite way of knowing that a bench warrant already exists. This leaves the gardaí open to prosecution. The motion suggests a practical solution to this problem. A national register of bench warrants would help the Garda in dealing with people on the move because, as Senator Maloney said, warrants are only sent to the local Garda station. Bail conditions, including reporting to the Garda station, must also be tightened up.

We must remember that in any debate on bail we are talking about people who must be considered innocent until proven guilty, regardless of previous offences. While the criteria set out in the O'Callaghan case may cause frustration for those trying to bring people to justice, we must accept that a person is innocent until proven guilty and is entitled to their liberty. The question of whether a person is likely to reoffend or is a danger to the public must also be considered. We must balance that against the possibility of the accused turning up for trial. We should also consider the lack of prison space if we hold people pending trial and deprive them of their liberty. These innocent people are taking up valuable places. This motion is a practical solution to the problem.

Mr. O'Kennedy

I move amendment No. 1:

After "warrants" to add the following:

"and calls on the Government to hold a Referendum on bail in order that the Irish people may be given the opportunity of deciding whether a Court should be entitled to refuse bail to an accused person if it is satisfied that he/she is likely to commit a class of criminal offence which is also an indictable offence if admitted to bail."

We have no objection in principle to the motion, but it does not deal fully and effectively with our bail laws. That is why we proposed an addendum to it.

I was a barrister for five years when the landmark decision in the O'Callaghan case and the judgment of Mr. Justice Brian Walsh was delivered by the Supreme Court. It was delivered at a time when the individual rights of citizens were uppermost in the criteria considered by the courts. I recall that the powers of the State enshrined in the Offences Against the State Act caused concern among the public. Any court which does not operate in isolation from the social conditions in which it hands down its judgment is anxious to vindicate and protect the individual rights of the citizen vis-á-vis the State.

However, nothing remains static in life or in the social evolution and pattern of crime. The pattern of crime in those days was entirely different from that which exists at present. Drug related offences were unknown to the courts then. I cannot think of one case during my first ten years at the junior Bar, until I left in 1970 to go into Government, which was drug related. This is a different situation from that which obtained in 1966. It was also a time when the powers of the State for detention without trial under the Offences Against the State Act were properly under question by the courts. Accordingly, the decision of the Supreme Court in the O'Callaghan case reviewed the corpus of law and judicial precedent on the right to bail to take account of the changing circumstances. While it may sound contradictory, the only constant in life and in law is change. Nothing stays as it was 30 years ago. We must review the decisions of 30 years ago in light of today's circumstances as our successors will, I hope, review what we decide in 1996.

Thirty years later, the social climate and the pattern of crime is entirely different from that which prevailed in 1966. The need to review the criteria in the O'Callaghan case is self evident. I read the judgment and the O'Callaghan criteria again today. Mr. Justice Brian Walsh and the late Chief Justice Cearbhall Ó Dálaigh went back to the old judge's rules and reviewed the evolution of the bail laws. They felt obliged to update the laws in view of the changing circumstances of that time.

I was a law student in the late 1950s and 1960s. The judge's rules on bail were handed down almost like the tablets of stone handed down to Moses. They had not been changed and were there since time immemorial. It is understandable that the Supreme Court in 1966 reviewed them but it is also understandable that we should now review the 1966 decision of the Supreme Court and review our responsibility in light of the changing circumstances.

The interpretation of Article 40.4.1º of the Constitution by the courts in recent years has resulted in an unacceptable balance in favour of a person accused of a criminal charge at the expense of the victim and society generally. The Article states: "No citizen shall be deprived of his personal liberty save in accordance with law." That means that the stringent conditions laid down in the O'Callaghan case have now been effectively enshrined in our Constitution. Note that the Constitution said "save in accordance with law". However, law is not just the law we pass here but also judicial precedent in the higher courts, in this instance the Supreme Court.

I do not think the framers of the Constitution in 1937, much less the people who adopted and enacted it, could have contemplated that it would be used to set at large people who are on bail so they could perpetrate further offences. We have many examples of that today. It is a fact that people released on bail are later charged with similar offences committed while they were out on bail. We cannot accept that as being a protection of society. It is very significant that Mr. Justice Walsh in his judgment——

An Cathaoirleach

The Senator's time is up.

Mr. O'Kennedy

I will take three more minutes.

An Cathaoirleach

I cannot give the Senator three more minutes. I will give him another minutes.

Mr. O'Kennedy

He had particular regard for the effect which imprisonment would have on the family and dependants of the accused person. He said that in the modern complex society in which we live, the effect of imprisonment upon the private life of the accused and his family may be disastrous and have severe economic consequences for him and the family depending on his earnings from day to day or even from hour to hour. In the meantime, the State has provided a backup which was not there in 1966. Therefore, that consideration is no longer relevant.

The most striking difference is that when the Supreme Court delivered the O'Callaghan judgment the consumption of drugs and drug related offences were entirely unknown in Ireland. We must look at the reality in which we live today. It is now clear that we need to review the law on bail as a matter of urgency. Fianna Fáil proposes that a defendant need not be granted bail if the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail, would fail to surrender to custody, commit an offence while on bail or interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person.

If I may trespass on my colleague's time for one more minute.

An Cathaoirleach

The Senator has gone well into it at this stage.

Mr. O'Kennedy

How much time does my colleague have?

An Cathaoirleach

You cannot share time. The Senator has gone well over the time.

Mr. O'Kennedy

Fianna Fáil is determined that the people should have an opportunity of protecting themselves if the State fails to do so and accordingly have proposed an amendment to the Constitution to limit the right to bail, subject to the criteria I set out above.

I finally refer to another Article in the fundamental rights section of the Constitution which is mandatory on all of us. Article 40.3.2º states:

The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property of every citizen.

This is a mandatory obligation on the State. In light of recent horrific times and events, it is clear that the State — in this instance the Government — is failing to act on its obligations under that Article.

Mr. Bohan

I second the amendment. This amendment affects myself and the many people I represent in the centre of Dublin, where I have been in business for over 30 years, who have suffered at the hands of many criminals. What annoys me most is the fact that the same people are committing the crimes and this has been mentioned by Senator Gallagher and by my colleague Senator O'Kennedy.

It is crazy that bail is granted to these people time after time and something must be done about it. I would be the first to defend a person's right to bail where there is no solid evidence that the person charged should not be granted bail. It has been my experience that a garda will not oppose bail without good reason. However, it has been proved time and time again that the very people who have been granted bail against the wishes and advice of the garda have gone out on to the streets and committed the same and sometimes even more violent crimes in the certain knowledge that they would receive the same sentence as they would have received in the first place.

Senator Gallagher referred to concurrent sentences. It is an outrage that a defendant may be charged with seven or eight offences which were committed while on bail and they will get a 12 month sentence for each offence to run concurrently. It is a joke because they know before they go into court that this will happen. The issue of concurrent sentences must be addressed. I do not know whether mandatory sentences can be imposed. There is no deterrent on people to desist from crime while on bail. Judges in our criminal courts system mean well, but they seem more concerned about the rights of criminals than the rights of unfortunate victims of crime.

Many people are under the impression that bail is a constitutional right but I do not believe this is so. In 1975 the then Chief Justice, Mr. O'Higgins, stated that there is a recognition by the courts that a person is presumed to be innocent and shall not have his or her liberty interfered with pending his or her trial on a criminal charge. When the right of bail was introduced many years ago, the level of crime, as Senator O'Kennedy said, was a far cry from what it is today. There was no abuse of drugs and rape and violent crime were rare.

I am convinced that up to 80 per cent of crimes are committed by people on bail or early release and by young thugs, some of them only 12 years old. These people are well aware that if they are convicted by the courts there are no places of detention to put them. Recently a 14 year old was convicted of stealing cars; this was his 40th conviction. This does not take into account crimes he may have committed and for which he was not caught. He robbed a car and rammed a Garda car the day after a certain institution stated it had no place for him. As far as I know, this child is operating as usual on the streets. It is high time that so called children can be prosecuted in the same manner as adults. The Minister should revise the bail laws and examine the right to silence. The sooner he does this, the better it will be for all of us.

Mr. Neville

I welcome and support the motion tabled by the Labour Party. It is a worthy proposal and would be of assistance in the present situation. It is important to know if bench warrants are outstanding in the event of people being considered for bail by the courts. Refusal of bail can be considered on the grounds that the charged person may abscond. There is no central national register of bench warrants and the motion brings this problem to our attention. The keeping of such a register would require a great deal of organisation and the setting up a system to ensure it operates correctly and is available throughout the country. However, this should not be a great problem in this day and age of computerisation. Who should maintain the register? The Garda Síochána would be the best group to do this. It needs the information most quickly and can feed this data into the system because it will be aware of people who do not respond to bench warrants. I cannot judge how complex the system will be but it should be reasonably simple.

The wider issue of bail has been discussed and I have raised it over many years. It is heartening to see such support for that proposal from the other side of the House. It was tactically ignored for so long when Fine Gael raised the issue. The previous Minister asked the Law Reform Commission to issue a report on the matter and this is now with the Minister. She will fully consider it before bringing proposals before the Oireachtas. To do anything else would be incorrect and incompetent. Bad legislation makes for bad circumstances. We must ensure that any legislation is sensitive and detailed because it will involve constitutional change and there may be other legal requirements. It is important that the Minister fully ensures any proposals she brings before the Oireachtas will work and will not be challenged in the courts at a later stage. The solution to the problem must be effective.

This job would have been made much easier if the previous Minister had requested the Law Reform Commission to bring forward recommendations but she did not do so. As a result, the present Minister does not have a set of recommendations to consider but must develop the correct approach. The report is analytical and is good in that context, but if it had gone one step further we may have been able to move more quickly.

The problem with bail was not an issue until 1966 when the O'Callaghan case determined that bail could be refused only on two grounds: the likelihood of a charged person absconding or if the court determined that there was interference with witnesses. The bail laws have been abused and the situation is serious; the Minister has recognised this on numerous occasions. Notorious organised criminals over the years have had little difficulty in obtaining and abusing bail. Professional criminals are the biggest abusers. Petty criminals who are charged for the first time generally do not abuse bail; it is abused by professional criminals who know how to work the system.

Under Irish law we cannot refuse bail in cases of serious offences like bank robbery and rape. We can only do so on the two grounds outlined by the court. If somebody commits a bank robbery, rape or murder and is likely do so again, he cannot be refused bail on this ground. In some cases of rape and murder, I believe it is itself a crime to release offenders on bail back into society where they are open to commit further offences.

The provisions dealing with consecutive sentences in the Criminal Justice Act, 1984, have a deterrent effect on only petty crime but have little or no effect on organised and serious crime. Organised criminals who know they are going to jail for one serious offence have no compunction about committing other crimes because they are aware they will serve only a fixed period of time in prison.

We look forward to the Minister's proposals and I am confident these will be issued quickly because she has a good track record in bringing forward proposals. In little over a year she has introduced a comprehensive set of proposals to improve the situation. This week we welcomed the publication of a comprehensive package to tackle drugs and drugs related crime. This was well outlined by Senator O'Kennedy. The Minister presented a muti-faceted drugs package to the Government in July and legislation to implement it is being introduced. She has introduced a fundamental overhaul of the courts to reduce delays and increase efficiency. This week there were advertisements for judicial posts. This is progress. People will be interviewed for these posts, the Minister will make a decision and new judges will be active in the courts shortly. The Minister also brought forward a comprehensive prison package. Everybody recognises she had problems in Government with regard to this.

I congratulate the Minister for bringing forward a comprehensive package. She used the time over a 12 month period to examine the situation in great detail to bring forward, as with the bail issue, proposals which will work and improve the situation. The fact that 278 extra spaces will be available in prisons in 1996 and the first half of 1997 is welcome.

Minister for Justice (Mrs. Owen)

I thank the Senators for this motion, the subject of which is a matter of great concern to us all at present and I am listening carefully to what is being said. I welcome the suggestion by the Labour Senators that a national register of warrants should be established.

I want to make reference to a figure which Senator Bohan quoted because, once said in this or the other House, figures have a terrible habit of gaining a life of their own and running away with themselves. Eighty per cent of crimes in this country are not committed by people out on bail. Page 36 of the Law Reform Commission's report states that the average rate of offences for which persons were arrested during the bail period did not vary in the two years, 1992 and 1993, and stood at 9 per cent. I know he included others who may be on early release and temporary release to say that 80 per cent of crimes were committed by people in those categories but since the figures for such categories would be quite low, there is no evidence to support his view. That is not to say that people who have served sentences in our prisons do not reoffend, and I suspect that what the Senator was trying to get across. As he said, some may have 30, 40 or 50 convictions against them for particular crimes. I do not want an 80 per cent figure to be floating around because we heard figures about 60 per cent increases in murder but people were not comparing like with like and they were giving a false impression that there was a huge increase in the murder rate. I correct that not in any pejorative way but so that Senator Bohan would not use such a figure unless there is clear evidence for it.

The determination of applications for bail is a matter for the courts, who may refuse bail to a person who is likely to attempt to pervert the course of justice or who is unlikely to turn up for trial. It would, of course, be helpful to the court in determining an application for bail to know if bench warrants were issued previously or were still outstanding against the applicant for failing to turn up at previous trials. Under our adversarial system of justice the court determines matters which come before it on the evidence presented. Applications for bail are opposed by the prosecution authorities where they consider it necessary and details of previous bench warrants would form very important evidence for them to present to the court in support of their case. Under section 31 of the Criminal Procedure Act, 1967, the Garda can grant bail in certain circumstances and, again, details of bench warrants in existence would, of course, also be relevant to decisions made under this legislative provision.

There is at present no centralised or national register of bench warrants issued and information on bench warrants can only be obtained through manual searches in court offices or Garda stations. Even then it would be impossible to locate records of such warrants without previous information on the possible date of issue of the warrant, the court office which issued the warrant or the Garda station to which it was issued.

There are a very large number of bench warrants issued annually and the majority of these are issued by the District Court in Dublin; it issues between 8,000 and 12,000 such warrants each year. In the District Criminal Courts in the Four Courts alone in 1995, there were 5,800 bench warrants issued and 189 bench warrants issued by the Dublin Circuit Criminal Court. There are also, of course, bench warrants issued by every District and Circuit Court throughout the country. Applications to estreat bail where defendants have failed to turn up for trial is a matter for the prosecution authorities. The decision to grant or refuse such applications is a matter for the court and is one in which I have no function.

Given the very large number of bench warrants issued annually by the Dublin Metropolitan District Court alone it is clear that a national centralised register of bench warrants which would be comprehensive, reliable and accessible could not be set up without the benefit of computerisation.

Another factor to be considered in establishing a national register of bench warrants would be the most appropriate body or organisation to maintain such a register, and Senator Neville referred to this. It would appear on preliminary examination that the Garda Síochána may be most suited to this function for a number of reasons. To be effective, such a register would have to be easily accessible to those who need the information, i.e., the members of the Garda. The Garda would also have the expertise to manage the information to avoid ambiguity in matters of identification and so forth. The knowledge of the local garda which is so important at present in identifying criminals would continue to be valid, for example, in cases where criminals are using more than one address, which is a common occurrence. The Garda already has certain centralised information systems in place and, as the House will know, the Garda Síochána is embarked on an ambitious four year information technology plan which will greatly enhance both operational and administrative systems. One of the areas which will be considered for computerisation in the course of implementing this plan will be warrants administration.

While the motion before the House is in very specific terms, there is, of course, the wider question of reform of our bail laws. Indeed, the amendment put down in the name of the Fianna Fáil Senators seeks to address the question of holding a referendum on our bail laws. The House will be aware, and it has been referred to by Senators, that the Law Reform Commission report on the law of bail was published last September. I am glad to have the opportunity to place on the record my appreciation of the work the commission put into a fundamental and complex aspect of the law.

That report, which runs to about 200 pages, contains a thorough examination of the legal issues which arise. It required detailed consideration and it would have been inappropriate for the Government not to consider fully what the commission had to say in the report. I should remind the House that the report was commissioned by my predecessor. At the time, the commission was not asked to make recommendations for changes in the law and many Members may feel it is a pity that was not done but the approach which was taken then is obviously not something which I could be expected to explain.

It would be unreal to expect the Government to be in a position to support an amendment before the House calling for the holding of a referendum in a particular form in advance of it being given a full opportunity to consider the commission's report. I can tell the House, however, that consideration of the report is being finalised in my Department at present with a view to my bringing proposals before Government in the near future. I can assure the House too that the Government is determined to bring forward comprehensive and effective proposals to deal with abuses of our bail laws.

The amendment before the House seems to be based entirely on the wording contained in a Private Members' Bill which was introduced in the other House in advance of the Law Reform Commission report. When Second Stage was taken there, I indicated that the type of approach contained in the proposed wording might give rise to significant difficulties. I do not propose this evening to repeat my reservations about the detail of that approach, but it is worth making the general point that in approaching any possible changes in this area we have to be clear in our minds what we want to achieve and be confident that any proposals are well judged and will operate effectively in practice.

The House will be aware that following the O'Callaghan judgment in 1966, bail may be refused only on two grounds: the likelihood that the accused will abscond or will interfere with witnesses or evidence. That position was confirmed by the Supreme Court in its judgment in the Ryan case in 1989. In particular, the possibility that the accused might commit further offences if granted bail is not a factor which the courts can take into account in deciding on a bail application.

In its analysis of our law in this area the commission mention that by international standards Ireland remands few persons in custody pending trial. The report contains a very useful analysis of the law on bail in a number of other countries. A point which emerges is that they all permit custodial remand, at least to some degree, in order to prevent the commission of further serious offences. I should also say that almost every country in Europe also allow for a generous compensation scheme if people are remanded and subsequently found to be innocent. So, the issue of compensation would arise if we introduced a system whereby people were kept in custody while awaiting trial.

There is an absolutist view that no person should be held in custody prior to conviction. But, however liberal our bail laws are perceived to be, the fact is we do not go that far. The courts may refuse bail to a person who is unlikely to turn up for trial or will attempt to pervert the course of justice. I believe that most people would support that approach as a minimum. That does, however, involve the courts imprisoning someone who may or may not be guilty of a crime and in doing so on the basis of a view of the likely behaviour of someone if he or she were released on bail.

A fundamental issue is whether society should reserve the right to protect itself by providing for a situation where a person is deprived of his or her liberty awaiting trial because of fear that the person involved will commit further offences if released. It is a difficult question of balancing competing rights, but I have already made clear my approach to devise proposals that will tilt the balance towards the victims of crime.

Before leaving the subject of the report, it is worth noting that decisive action has already been taken in relation to aspects of it. In particular, the commission referred to the need to reduce delays in court proceedings and suggested that this would significantly help the situation. The Court and Court Officers Act, 1995, contains a series of substantial measures in this regard.

I look forward to having the opportunity of coming before the House again in the near future to discuss the proposals which the Government will be bringing forward to address the issues that have been raised in this House.

Dr. Henry

At the end of her speech the Minister said she had already taken action on some of the commission's recommendations. These recommendations are important because of the dismay caused by the delay that often takes place between the time a person is charged and when their case comes up in court. The Court and Court Officers Bill, 1995, contains a substantial number of measures which should help change this.

I support the laudable proposal by Labour Party Senators for a national register of bench warrants. It could not be opposed by any civil libertarian and it would not involve anyone who is entitled to bail being deprived of it. If someone does not turn up in court when they are supposed to, however, that is a crime in itself. There is already a register in Dublin, but it is apparently in an appalling mess and consequently it is impossible to know whether people appearing in the Dublin jurisdiction have unexecuted bench warrants before them. Putting that situation right is a big task.

I am not sure that Senator Neville is right when he says it is a simple matter to set up such a register, even with computerisation. It will probably be an extraordinarily difficult task to set up a proper register and it will require an enormous amount of money. For example, the computerisation of Garda Síochána operations is costing millions of pounds.

Mrs. Owen

Twenty six million pounds for the programme.

Dr. Henry

I imagine that setting up a bench warrant register would cost just as much. I have been involved in the computerisation of hospital patient registers where the cost has been staggering. A bench warrant register would have to include data from every court in the country. The Minister has already indicated the figures involved in District Court criminal cases in Dublin alone. Tying in all the country's courts will cost a lot of money.

A real time computer is needed because there is no point in having one where half the information is out of date. Therefore, a constant updating of the computer's database will be essential.

The Minister's suggestion that the Garda Síochána should keep the register is correct because the problem of providing addresses is a serious one and local gardaí are in the best position to know who lives where or if they have moved elsewhere. The Minister may have to increase Garda numbers in rural areas to keep the computer updated with names and addresses of those on bench warrants.

I would like to make one practical suggestion for setting up our own computer system. Northern Ireland already has a computerised bench warrant register; and all bench warrants there are executed, unlike so many in this jurisdiction which are dormant. I am a great believer in trying to undertake all-island initiatives, so perhaps we could start by examining how the North's computerised register is operated so efficiently. The excellent suggestion for having a register, while not cheap, is preferable to putting more people in prison simply because we suspect they may skip bail.

I understand how Senator Bohan feels and, living in the centre of Dublin myself, I sometimes feel that the same criminals come around every night. However, as the Minister pointed out, only 9 per cent of people on bail commit crimes. Sadly, serious crimes like robbery are carried out by those who are efficient in dealing with the court system and who realise that far too often they may get concurrent rather than consecutive sentences. Such sentences leave the general public in a state of amazement. It gives us the feeling that offenders can skip in and out of jail and do what they like while on bail. We have to address this issue practically rather than in the emotional way most of us feel about it. I support the Government's proposal.

Mr. McGowan

I join with other Senators in welcoming the Minister to the House, and I also welcome the opportunity to contribute to this debate. My first reaction was that the Minister could accept the motion as well as the addendum to it. This debate gives the Minister an opportunity to send a message to the criminals. Crime is at an all time high. Thousands of small business people dread going to the bank to lodge £1,000, while individuals living on their own are afraid to keep even £100 at home. No matter how the statistics are applied, the average citizen realises that crime in Dublin is now on a par with any other city in the world. A parent who sends a student to this city realises that it is dangerous at night and even during the day.

I would have thought that this would be an opportunity for the Minister to be clear and decisive. There is nothing controversial in the addendum to the motion. It has not been tabled by a political party which believes it has a better solution. We want to help the Minister and we accept her sincerity and intentions. I am sure the Minister would not claim to have all the answers to this problem. I appeal to the Minister not to press a vote on this issue because it will send the wrong signal.

We must support those implementing the law. However, the Garda is demoralised. While a register, computerisation and new legislation may be introduced, the structure on the ground will change very little. Gardaí on the beat in Dublin are up against professional criminals. The only protection and help we can give them is to strengthen the law. I live in a rural area near the Border with a lower crime rate than this city. Nobody is safe carrying small sums of money. There is a new breed of successful criminals and people are alarmed by this. A visitor cannot walk about this city without being attacked.

Introducing new legislation is a slow and difficult process. The Minister would accept that it is difficult to get it right because of the changing situation. I would like to think that we are all committed to strong laws which can be implemented. It is easy to pass legislation, but it is difficult to administer it effectively. I appeal to the Minister not to press a vote. She should accept the addendum because it would send the right signal. Our jails are full and the criminals are roaming the country. I ask the Minister to look at this again.

Ms O'Sullivan

As regards Senator McGowan's call for the Minister not to press to a vote, I think the wording of the Fianna Fáil addendum is very specific in terms of the type of referendum on bail we should have. The Minister received this report only last August and it needs detailed examination. She said we need to be clear on what we want to achieve and be confident that proposals are well judged and will operate effectively in practice. Whatever we do, we do not want to change the Constitution so that the situation becomes unworkable and ineffective. As Senators have said, there is a balance between civil liberties and miscarriages of justice. We do not want to detain people only to discover that they have not committed a crime.

The Minister referred to compensation in other countries with different systems. The Law Reform Commission report, when trying to balance what would be put to the people in a referendum, stated:

Perhaps the strongest argument against preventive detention takes issue with it on its own territory. It challenges the very benefit it is supposed to confer. In order to operate effectively, a system of preventive detention would either have to select among persons charged those who would commit further offences or detain everybody. However, it is argued, the empirical evidence suggests that such a selection would not be possible, with the result that a preventive detention policy might not be effective at all in isolating potential offenders. It also suggests that preventive detention would probably have minimal effect on the crime rate. Moreover, to detain everybody would be so disproportionate to the benefit achieved, not to mention costly beyond belief, that it would not be acceptable. Accordingly, it is argued, preventive detention either fails the efficacy test, or at least, has not yet been shown to score higher than the existing system of deterrence.

Obviously, the Law Reform Commission has put forward for and against arguments. We must take cognisance of the negative side of the argument. There is a positive side to looking at how our bail laws are administered and to the possibility of referendum. Whatever we decide on, we should favour the victim as opposed to the perpetrator of the crime. When we spoke on this issue a couple of weeks ago I and other Senators said that the question of violent crime, where people are hurt, must be given precedence over robberies and crimes against property.

The report suggests other options to which Senators referred — for example, consecutive sentencing, which is provided for in the 1984 Act, making it a separate crime to commit an offence while on bail and the introduction of a law resulting in the immediate detention of somebody who commits a crime while on bail.

The Minister and Senator Henry said the best thing we can do is to bring a person to trial more quickly. The Court and Court Officers Act, 1995, has gone some ways towards achieving that by providing for more judges. There is an onus on solicitors and barristers to ensure that there are no unnecessary delays. We are all aware of cases which have been called off because somebody has not prepared their case or where witnesses are not available. There is an onus on the legal profession to come up with suggestions on how the court procedure could be more efficient than it is at present.

We should not confuse those who commit crimes while on bail with recurrent offenders. To some extent, Senator Bohan was labelling them all together. Only 9 per cent of crimes——

Mr. Bohan

My figure would be closer than that of the Minister.

Mr. O'Sullivan

We all share the Senator's concern. We all know that people commit crimes again and again and we are as frustrated as the Garda that this is happening. However, it should not cloud our views on how many commit crimes while on bail. However, it should not cloud our view as to how many of them are committing crimes when they are out on bail. Is there a possibility of obliging people to report more often when they are out on bail? I wonder if there are more options within the system already, even the possibility of imposing curfews, so that people are more under the eye of the Garda, as it were, when they are out on bail.

Our motion was put forward as a practical suggestion. Obviously, there are costs involved but, as the Minister said, the four year information technology plan is already being implemented. When she was in the Chamber previously she told us how that will operate in making the system more efficient. What we are proposing would contribute to the attempt to make the system work more effectively in bringing criminals to justice. At the end of the day, that is what everybody is seeking — to ensure that those who are at present committing crimes and terrorising people will no longer be able to do so. We are seeking to produce a system that is effective in bringing such people to justice as soon as possible.

What happens to them if or when they go to prison should make it less rather than more likely that they will offend again. That is an area we cannot discuss tonight but there is a great deal of evidence to suggest that people leaving prison are more likely to reoffend. Whether one takes a carrot or stick approach and whether one believes prison should be harder on criminals or offer them more opportunities for rehabilitation is an argument for another day but it is an important issue as well.

We are putting forward a constructive suggestion. It obviously is not the definitive answer but it is part of the answer.

Mr. Enright

I welcome the Minister. I am pleased that whenever debates on justice have taken place in the Seanad the Minister has attended. It is wonderful that she is taking the time to listen to what is being said by Members of this House. She understands that what we have to say is important and she is prepared to listen to it. I pay tribute to her and her good example; many of her colleagues would benefit from following it.

I agree with the motion's call for a register of bench warrants. That is important whether it is compiled through a computer system or otherwise. As the Minister said, the Garda Síochána are best suited to carry out the duty of keeping records of people who are out on bail or for whom there are bench warrants. I read recently that the Civil Service has succeeded in getting the most up to date modern technology. That is a good development which will benefit the Civil Service. It is essential that the most modern technology is provided for the Garda Síochána. Technology changes so quickly that every effort must be made in this regard. I am confident the Minister will provide that technology.

In fairness to the Garda Síochána, they maintain reasonably good records. I attend the courts regularly and the gardaí keep accurate records of people who have previous convictions. They also have good methods of ascertaining whether a person has defaulted on bail or has failed to return on a bench warrant. They have a good system but if it can be improved and streamlined I would be happy to see that happening.

There was a change of Government just over one year ago. About two days later I listened to Deputy O'Dea in the Dáil and a number of Fianna Fáil Senators in this Chamber. The impression was given that overnight there had been a major escalation in crime — it was as if the James' gang had run rampant across the country. This escalation in crime did not happen overnight. There is an ongoing problem with crime and we want to do all we can to solve it. Although there may be some degree of political point scoring, overall, public representatives speak with a great deal of common sense. The political parties in general have a good approach; they appreciate the problems faced by the current Minister and by her predecessors and realise that those problems will also face future Ministers.

This motion has been put down because of crime. The most important area we must focus on is prevention; the prevention of crime is an absolute priority. As we have seen in recent years, the vast majority of serious crimes — 85 per cent to 90 per cent — are committed by people in their own localities. About 15 per cent of serious crime is carried out by people who travel long distances to commit crime. The Garda Síochána's record for apprehending people who have committed serious crimes is quite good; they generally succeed in bringing such criminals before the courts. Once criminals are brought before the courts and prosecuted, the job of the Garda Síochána is, to a large extent, over. It is up to the courts to find the accused innocent or guilty.

I congratulate the Minister on her efforts in response to the crimes that took place in the west of Ireland. She ensured that road blocks were put in place and that traffic movements were monitored. It is essential that some form of monitoring of traffic should take place on a national basis. It should not happen only on main roads but through spot checks carried out by the Garda. If serious crimes have been committed the Garda Síochána should be provided with all the necessary back-up. The information yielded by spot checks, the monitoring of traffic movements and inquiries made by the Garda should be computerised. It is hard to apprehend people who travel long distances and regularly use aliases, so it is essential that a record of traffic movement be kept.

In Britain and on the Continent traffic movements are regularly monitored. A certain amount of surveillance is used in addition to checkpoints in order to ascertain where people and their vehicles are from. That is an important system and we should follow it up in this country. It is vital that we monitor traffic movements so the Garda could build up a large body of information over a period of time which will be of help in the event of a serious crime being committed.

Many minor offences, debt collection and so forth, are dealt with in the District Courts. We will have to look at that and see if many of these matters can be taken out of the courts. In cases were people are caught with bald tyres we should examine the possibility of imposing on the spot fines. If a person has not paid their car tax there could be a system whereby they receive a notice giving them 21 days in which to pay it and if it is not paid some type of fine could be imposed. Such a system could be organised through statutory instrument or by passing new legislation.

I regularly attend the District Courts and they are usually crammed with gardaí. Their time is taken up giving evidence in the most petty, minor cases. The gardaí are demoralised having to hang around such courts all day. It is a waste of their time and everybody's time. A medical bureau can provide a certificate that somebody was over the limit with drink and there is no need for the doctor to prove that in court. The accused can lose his or her licence for a minimum of two years and possibly more. I see no reason why a garda has to come into court to give evidence that a person had a bald tyre when the doctor need not come into court to give evidence that he or she took either a blood or a urine sample from somebody. This is an important matter and it would save a great deal of time if we could pass legisation to that effect.

We need to examine the right to silence. The Irish legal system rightly allows a person accused of a crime access to expert legal advice under the free legal aid scheme. In addition, the Garda can record or videotape an interview with a person. An innocent person has nothing to fear from accounting for his or her movements. Society should consider whether a person suspected of having committed a serious crime is entitled to an absolute right to silence. A person who has proper legal representation during questioning should be legally obliged to account for his or her movements.

With regard to the motion before us, it is essential to examine the bail laws over a period of time and to consider a referendum. The Minister has not responded to crime with a knee-jerk reaction, rather she has taken a slow, methodical and efficient approach. I would prefer if the Minister was to do whatever she does properly rather than do something for its own sake. I have confidence in the Minister. Having studied the report and consulted her advisers she should consider a referendum at a future date. I wish the Minister well in what is a difficult portfolio.

Mr. Maloney

I thank the Minister for attending this evening. The motion proposed is well intentioned and should benefit the issue in question. I welcome the views expressed sincerely by speakers from all sides. The motion is a response to circumstances in which people are perverting the course of justice by not turning up in court and it suggests a way forward to deal with the matter. I welcome the Minister's reference in her speech to the information technology programme being set up in the Garda Síochána at a cost of £26 million, which is a large amount. The bench warrants could be included in the computerised system.

I worked in the psychiatric service before being elected to the Seanad. Many hospitals are computerising all their patient records so that once one is admitted to a hospital the problems identified and the treatments given would be put on computer and the next time one is admitted the information will be available at the touch of a key. A similar arrangement could apply in the case of bench warrants and once an information system is up and running it would not cause any great problems.

I commend what the Minister has said and I have no doubt she will take on board the proposals we have made. I commend the motion to the House.

Amendment put and declared lost.

Motion put and agreed to.

An Leas-Chathaoirleach

When is it proposed to sit again?

Mr. Enright

It is proposed to sit again at 10.30 a.m. tomorrow.

Seanad Éireann debate - Wednesday, 21 Feb 1996