Seanad Éireann debate -
Thursday, 21 Nov 1996

Vol. 149 No. 9

Criminal Justice (Miscellaneous Provisions) Bill, 1996: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

Minister of State at the Department of Justice (Mr. Currie)

Senators will be aware of the Minister's commitment to introduce Criminal Justice (Miscellaneous Provisions) Bills periodically. The aim of this is to facilitate the speedy introduction of measures to enhance the operational efficiency and effectiveness of criminal law and procedure. The Minister recently set up an advisory group on criminal law and procedure made up of people with appropriate expertise and whose remit is to provide the Minister with ongoing advice in this regard. I am happy to have the opportunity of bringing this Bill, which is the first Criminal Justice (Miscellaneous Provisions) Bill, before the House.

Sections 3, 4, 5, 6 and 17 have as their objective the reduction of the amount of time spent by gardaí on court and court related duties, and the amount of resources accounted for by these duties. The sections will relieve gardaí as far as possible of non-operational duties in the courts and help to ensure a greater presence of uniformed gardaí in our communities. They will also speed up aspects of court procedure in criminal matters.

A significant proportion of Garda time, especially in the Dublin metropolitan area, is accounted for by the need under existing criminal procedure in the courts for the prosecuting garda to attend court in person to give evidence of arrest, charge and caution on the occasion of the first appearance of an accused before the court. Many of these attendances occur outside the members' rostered duty periods and, therfore, the requirement to attend court involves the payment of overtime which could be better spent on crime prevention and detection.

Section 6 allows gardaí to give evidence by certificate of certain procedural matters, including evidence relating to arrest, charge and caution, with the purpose of relieving them from the obligation of attending in person in court to give such evidence orally. In practice, this evidence is rarely challenged. In the case of a serious offence, where the prosecuting garda opposes a bail application, he or she will need to be in attendance to give reasons bail is opposed. Overall, I am satisfied however that in most cases of first appearances before the court of accused persons, under the provisions of section 6, there will be no need for the prosecution garda to attend court.

The Bill provides that where the court considers that the interests of justice so require, the court may require the arresting garda to give viva voce evidence and adjourn the proceedings for that purpose. That can be done at any stage in the proceedings. This very necessarily reflects the importance attached by the courts to oral evidence.

At present, when a person is arrested, the Garda has discretion under the Criminal Procedure Act, 1967, to release the accused on station bail to appear in the District Court "at the appropriate time and place". The difficulty is that it is unclear whether the existing provision refers to the next sitting of the District Court or some time and place considered appropriate by the Garda. In practice it operates with reference to the next sitting of the District Court. Frequently, that next sitting of the court will be at a time when the arresting garda is not on duty and the garda will have to attend in court, thereby giving rise to overtime costs.

Section 3 provides that the Garda may release a person on bail from a Garda station to appear before the District Court at the next sitting or any sitting within 30 days of the next sitting of the court. This will give the Garda more flexibility with regard to court appearances and help avoid the need for Garda overtime on these duties which could be better spent on operational duties.

Section 4 extends from eight to 15 days the existing statutory limit for remanding an accused person in custody on that person's second or subsequent appearance before the District Court. No change is being made with regard to the period that a person may be remanded in custody on a person's first appearance in court as the accused must have the opportunity to obtain legal representations and advice before the longer remand period comes into effect. Where the accused person consents to continuing remand in custody, the upper limit will continue to be 30 days. The section does not affect the law relating to periods of remand on bail.

Section 4 enables a court to remand an accused person in custody for a period less than the proposed maximum of 15 days in certain circumstances. I have no doubt that there will be occasions when a court feels that in particular cases it should bring an accused before it more quickly than the maximum period permissible.

Remands in custody are a very frequent feature of the criminal process before a case is ready to proceed to a hearing. Currently, a considerable amount of Garda time and manpower is taken up with attendance in court for appearances of accused persons on remand. Much of the time, there is no likelihood of the substantive hearing proceeding especially where the preparation of a Book of Evidence is involved. The provision for longer remand periods will result in a significant saving in the time spent by gardaí in court attendance.

Section 5 addresses the problem of the long distances which a remand prisoner escort — which can comprise one Garda driver and two gardaí, although this will vary — is often required to cover and the implications this has for Garda time and resources. At present when an accused person is remanded by, say, the Galway District Court, that person will normally be held in Mountjoy Prison, and the next and all subsequent remand appearances of that person will be before the District Court in Galway. This can involve a full day's duty for each of three gardaí bringing the prisoner from Mountjoy to the court in Galway and back later that day to Mountjoy. The requirement that a remand appearance be in the court having jurisdiction in the case gives rise to a heavy commitment of Garda time and resources.

Section 5 will allow the District Court having jurisdiction in a case to remand an accused person in custody to an alternative court in the District Court district in which the prison where he or she is being held is located or in an adjoining District Court district. This should result in substantial savings in costs of transport and Garda time, especially where the court of jurisdiction is a considerable distance from the remand prison. In future, where an accused is remanded in custody by, say, the Galway District Court and that person is held in Mountjoy, it will be possible for the court to remand that person to appear at the end of the initial remand period in a District Court venue in the Dublin metropolitan district. The Bill allows subsequent remand hearings to be conducted in the Dublin court in this example. When the case is ready to be heard, the section provides that the alternative court will have the power to remand the person to a sitting of the court in the District Court district in which the offence was committed or where the person resides or was arrested. I am confident that this provision will yield substantial savings in Garda time and expenditure on these duties.

I will now deal with section 17 of the Bill. The Criminal Justice Act, 1951, provides that a person arrested on warrant or charged following arrest without warrant must be brought before a District Court judge as soon as practicable. If arrested on a warrant or charged following arrest without warrant after 10 p.m., a person may be brought before a District Court judge the following day before noon. What this 10 o'clock rule means is that, if arrested on a warrant or charged following arrest without a warrant before 10 p.m., the person must be brought before a District Court judge that night. This means that arresting gardaí in these circumstances must attend court almost nightly in the Dublin metropolitan district. I have been concerned for some time about the consequences of this recruitment for Garda and judicial time and court resources. The all round cost of the night court system is considerable. Perhaps even more important is its effect on policing levels in the community especially at night.

To address this problem, section 17 provides that it shall be sufficient compliance with the requirement to bring a person before a District Court judge as soon as practicable if a person, having been arrested on a warrant after 5 p.m. or having been arrested without warrant and charged after 5 p.m., is brought before a judge of the District Court not later than noon on the following day. I am satisfied that this procedure will operate in such a way that there will be no need for courts to sit at night for these purposes.

There are many statutory provisions empowering the courts to issue search warrants to enable the gardaí to search premises for various items, including stolen goods, firearms and many other specific items such as video recordings and racist material. A good example is the Misuse of Drugs Act, 1977, as amended by the Criminal Justice (Drug Trafficking) Act, which provides for the issue of search warrants in respect of drug trafficking offences.

However, there is no general statutory provision for the issue of search warrants in relation to the commission of serious offences such as murder or rape. I am very much aware that this can have serious implications for the detection by the gardaí of the most serious types of offences. This has been a noticeable deficiency in the criminal law for a long time. Section 10 will remove that very serious impediment to criminal investigation.

The section contains a provision for the issue by a judge of the District Court on the sworn evidence of a Garda inspector or a garda of a higher rank, of a search warrant for the search of any place and any person found at that place where the judge is satisfied that there are reasonable grounds for suspecting that evidence of certain specified serious offences is to be found at that place. This will enable the gardaí to search for and seize evidence such as knives in cases involving, for example, murder or an offence involving serious bodily injury, false imprisonment, rape or any offence set out in the First Schedule to the Bill.

The purpose of section 12 is to replace section 28 of the Criminal Justice Act, 1984, with a new section. The proposed section provides for the taking of palm prints and photographs by the gardaí following the conviction of a person. Section 28 currently provides for the taking of fingerprints only. The new provision will be of assistance to gardaí, for example, in a case where a person reoffends and leaves a palm print but not a fingerprint at the scene of the crime. I believe the gardaí should have as complete a profile as possible of a convicted person so that person can be subsequently identified if he or she reoffends.

Section 13 amends the Criminal Law Act, 1976. That Act allows a member of the Garda to use reasonable force to compel a person to comply with a requirement to stop a vehicle, including the placing of a barrier or other device in the path of a vehicle. That power relates to a number of offences specified in section 8 of that Act. The power does not extend to the offence under section 112 of the Road Traffic Act, 1961, of unlawfully taking a vehicle.

The Garda authorities have been concerned for some time about motor vehicles being taken without the consent of their owners and used in the commission of crime. They have been looking at means to reduce the amount of damage caused by the drivers of these vehicles. They are satisfied from tests carried out that a tyre deflating device known as the stinger, which is in use in other EU countries, will prove to be an effective way of addressing the problem. The use of the stinger in these circumstances is permitted by section 8 of the Criminal Law Act, 1976, so that all that is required is to add section 112 of the Road Traffic Act, 1961, to the list of offences specified in section 8 of the 1976 Act. The effect of this provision will be to allow the gardaí to use this new device to stop vehicles unlawfully taken by so-called joyriders. The stinger will be used by trained gardaí under very strict supervision under Garda guidelines.

Section 2 has two separate purposes in amending the Criminal Justice Act, 1984. Section 4 of that Act specifies that where a member of the Garda Síochána has enough evidence to prefer a charge against a person who has been detained under the provisions of that Act, "he shall without delay charge that person" unless the continued detention of the person is necessary in connection with an offence other than the one for which the person was arrested.

This has given rise to difficulties particularly in two areas. First, it seems to be the case that this can be interpreted too rigidly and members of the Garda Síochána may proceed to prefer a charge before the matter is fully investigated. Secondly, an issue has been made in court in some cases that evidence should be declared inadmissible because it was acquired while a person was detained after there had been sufficient evidence to prefer a charge. Generally, the courts have concluded that the section, in effect, should be interpreted widely and that a person need not be charged while an investigation continues which could have a bearing on the evidence that might be sufficient to ground the charge.

Paragraph (b) of section 2 makes it clear that the detention should be strictly related to its being necessary for the purpose of the investigation and that the person should be released when the detention is no longer necessary for the investigation of the offence, rather than when there is enough evidence to charge, unless the person is to be brought before a court in connection with a charge or is to be detained in relation to another offence. The amendment, in reality, does little more than restate the law as interpreted by the courts but should have the advantage of making the position clear to those operating these provisions. The Criminal Justice (Drugs Trafficking) Act, 1996 contains a similar provision and this opportunity is being taken to restate the law in regard to offences under the 1984 Act.

Paragraph (c) of section 2 arises from recent court decisions in regard to periods of detention under section 4 of the Criminal Justice Act, 1984. Section 4 of the 1984 Act provides for detention periods of six hours from the time of arrest under the section and a further period not exceeding six hours if a garda not below the rank of superintendent has reasonable grounds for believing that such further detentions is necessary.

Section 4 also provides for the suspension of the reckonable detention period for the purposes of rest and medical attention. The effect of paragraph (c) is that where a person being detained under section 4 attends court to challenge the lawfulness of the detention, the time during which that person is absent from the station shall also be excluded in reckoning a period of detention permitted by this section.

Sections 8 and 9 of the Bill concern certain powers of the Director of Public Prosecutions. Under the Criminal Justice Act, 1951, the District Court may try a person charged with certain scheduled indictable offences if it considers that the facts constitute a minor offence, and the accused consents to summary disposal. The Director of Public Prosecution's consent is necessary for summary disposal of only a few of those indictable offences and in general these are the less serious ones. The consent is not necessary for summary disposal of a range of serious offences including robbery, burglary, forgery or indecent assault.

The existing law in this regard appears anomalous and section 8 provides that the Director of Public Prosecution's consent shall be required for the summary disposal of all indictable offences scheduled in the 1951 Act. In a given case, where the facts known to the prosecution reveal a serious offence, this will allow the Director of Public Prosecutions to refuse his consent to summary disposal of the matter.

The Criminal Justice Act, 1951, also provides that when a person is convicted of an offences he or she may admit guilt to other offences and ask that they be taken into account in deciding punishment by the court. When an offence has been taken into consideration the accused cannot subsequently be prosecuted for it. The gardaí and prosecution who are present in court may have no knowledge of the offences that the accused wishes to have taken into account and may be unable to provide the court with information on the seriousness of the offences. In these circumstances, there is a risk that over-lenient sentences could be imposed due to inadequate consideration of offences "taken into account". These offences may be more serious than they appear. Section 9 provides that the Director of Public Prosecution's consent will be required before offences, which are not the subject of the charges before a court, may be taken into consideration.

I now wish to turn to the main remaining provisions of the Bill. The purpose of section 11 is to remove any doubt that may exist, however remote that fingerprints or palm prints taken by electronic means cannot be used in evidence. It also provides that a photograph or a fingerprint or palmprint certified by the member of the force who took it shall be evidence of the matters stated in the certificate unless the contrary is proved. This means that it will not be necessary for the garda who say, took a photograph, to give oral evidence in court that the photograph is that of a particular person.

The purpose of section 18 is to provide a single enabling provision for the Minister for Justice to make prison rules dealing particularly with the treatment of offenders. The provision will replace the existing enabling provisions which are set in legislation dating back some 120 years. Draft new prison rules have been prepared by the Department of Justice and were published in 1994 in the policy document The Management of Offenders — A Five Year Plan. The new enabling provision is required in order to avoid any possible complications relating to the Minister's power to make these rules.

There is a commitment in the policy document A Government for Renewal that “the proposed new prison regulations shall be referred to the Dáil Committee on Legislation and Security” and the Bill provides that these rules will be laid before the Houses of the Oireachtas in the normal way. The new rules, when implemented, will replace the 1947 rules for the government of prisons which are to a large extent obsolete. These new rules will reflect the practical requirements of a modern prison system and will benefit both prison management and the prisoners.

The purpose of section 19 is to enable the District Court to provide itself with a seal and to provide that an order of the District Court which has been sealed and authenticated by the signature of a District Court clerk shall be a record of the decision of the District Court. The difficulty with the existing procedure is that each order must be signed by the District Court judge and, of course, this can take a considerable length of time. The section will continue to allow the record of a decision to be an order signed by a judge of the District Court but, in addition, it will also provide that an order affixed with the seal of the District Court and authenticated by the signature of a District Court clerk shall equally be a record of a decision of the District Court.

A similar provision applies in the Circuit Court under rules of court. In that court, orders may be sealed and authenticated by the signature of the county registrar. The section will help to improve the administration of the District Court.

The Criminal Justice (Miscellaneous Provisions) Bill is just one element of the Minister for Justice's law and order response to crime. It is an important measure for reform of the criminal law, however, containing several practical measures which have as their objective the improved use of Garda resources and the strengthening of the capacity of the Garda Síochána to respond to serious crime, and greater efficiency in the operation of the criminal justice system.

Other criminal law reform measures which will be brought before this House include a Criminal Law Bill updating the criminal law and clarifying the Garda Síochána's powers of arrests which is currently before the Dáil, and new Bills dealing with non-fatal offences against the person, juvenile justice, criminal insanity and fraud.

I look forward to hearing the views of Senators on the Bill which I commend to the House.

Mr. Mulcahy

This is not the first time the Minister of State, Deputy Currie, has dealt with a criminal justice matter in this House. However, everyone in the House understands why he is here today instead of the Minister for Justice, Deputy Owen. I was going to call her the real Minister for Justice but that might be an insult to the Office. One presumes the reason the Minister, Deputy Owen, is not here is because she is embroiled in a serious controversy which we, on this side of the House, have so far not sought to introduce. There is no profit in so doing. It is a matter of record that the Opposition in this House has been supportive of Government activity, such as it has been, on law and order questions. That will continue to be the case.

I mention the other controversy because it has to be said that, to a certain extent, discussing this Bill makes a mockery of this House. In his attempt to bail the Minister for Justice out of her current difficulties, the Taoiseach is on record as saying that the organisation of the courts and prisons will be taken from the Department of Justice and run by independent bodies. If that is the case, perhaps the Minister could explain why we are discussing this Bill which directly refers to the organisation of the prisons and the courts. Will we be back here discussing similar topics in a few weeks' or months' time when this Government decides to introduce more legislation on the organisation of the prisons and the courts?

This is not the first time the Government has made panic reactive type announcements on law and order. Ms Veronica Guerin was murdered on 26 June 1996. Six days later a bail referendum was announced. Why did it takes that length of time? Six days later it was decided to accept the Fianna Fáil Bill on the freezing of criminal assets. A few days into the present scandal the Government made a panic reactive announcement that the courts and the prisons would be reorganised. Why does it always take a crisis for this Government to make announcements? It does not inspire confidence in our system of law and order or in our justice system. This is seen as Government not by action but by reaction. Perhaps criminals feel safe until the next crisis when panic legislation will be introduced.

Why has it taken so long to introduce this Bill? On 11 May 1995 the Minister for Justice announced that this Bill was imminent. She said: "Preparation of a Criminal Justice (Miscellaneous Provisions) Bill... is at an advanced stage."

Acting Chairman (Mr. Wall)

I ask the Senator to state from what he is quoting.

Mr. Mulcahy

I am quoting from Deputy O'Donoghue's speech on this Bill in the Official Report of the Dáil on 25 July, 1996, column 928. We have delays and panic action and reaction.

The Government has failed because it cannot present a comprehensive plan of action in this area. It has accepted in substance two Fianna Fáil Bills in the criminal justice area, the most important of which was the freezing of criminal assets legislation which the Government was stampeded into agreeing after the murder of Ms Veronica Guerin. It knew it was so out of touch with public opinion on law and order that it would have been seen to be even more foolish, lethargic and redundant had it not accepted Deputy O'Donoghue's Bill.

If there is a note of anger in my voice it is because I feel that by discussing this Bill today we do no service to the integrity of Seanad Éireann. We will probably be back here again, if this Government is to be believed, to amend this Bill in the light of new legislation. Sections of this Bill may need to be amended if the bail referendum is passed and the Minister has already published an outline of the legislation required in that event. However, she did not publish draft legislation which would have added to the debate on the bail referendum. I tabled an amendment to the legislation on the bail referendum which stated that nobody would be refused bail for more than 60 days. However, the Minister assured me that a time limit was not required in the bail referendum because legislation would be introduced.

I welcome certain sections of this Bill, particularly section 5 which relates to the jurisdiction of District Court and place of remand. The amount of Garda time which has been wasted is a disgrace, as Senator McGowan said this morning. I welcome sections 8 and 9 which relates to the consent of the Director of Public Prosecutions in certain matters. The provisions in section 10 relating to search warrants should have been made a long time ago. I also welcome section 11 which deals with the electronic recording of finger prints and palmprints.

Section 6 deals with the certificates of evidence relating to certain matters. One of the critical moments in our jurisprudence in relation to the prosecution of an accused person is the arrest. Many cases are thrown out of court because a judge finds that a person has not been properly arrested. As a practising barrister with first hand knowledge of these matters, I do not accept the Minister's statement that in practice this evidence is only rarely challenged. Section 6 should be studied carefully. This side of the House will support all measures to reduce the time spent unnecessarily by gardaí in the courts when it could be better spent apprehending criminals. This section is not appropriate to our system of justice.

There is a long line of authority in Ireland, England and throughout the world on the validity of arrest. Article 40 of our Constitution states clearly that as citizens of Ireland we have liberty and freedom. An arrest must be made strictly in accordance with law and proper procedure. Given that background, I believe it is inappropriate that evidence of arrest will be allowed to be given by certificate. Perhaps the Minister, in replying, will tell me I am overstating the case and that is not what section 6 intends. I will raise this matter to a greater extent on Committee Stage but it seems that evidence of and compliance with the correct procedures will be able to be given by certificate in court.

One of the best known ways of giving evidence by certificate in court relates to drink-driving cases where a certificate is handed in by the prosecuting garda to the judge concerning the level of alcohol tested in the laboratory. However, that is a strictly technical matter and is not on a par with the taking of someone's liberty. If something has been said to the contrary by my colleague in the other House, Deputy O'Donoghue, I am prepared to disagree with him because I feel so strongly about it. It goes to the kernel of every criminal case.

The making of prison rules is totally premature given that an independent body for the prison service may decide that its want to make a different set of prison rules. The Minister said in the Dáil that she will be responsible only for prison policy. The making of prison rules it not a matter of policy but of organisation. Are we discussing and approving rules written in draft form by one body only to have another body write a different set of rules? If that is not a waste of time and making this House redundant, I do not know what is.

Some sections of this Bill which streamline various administrative court matters are welcome although they are overdue. However, this House has no business discussing a criminal justice Bill which has been made redundant by the Taoiseach's words in the Dáil. Does this Government have any coherent plan or strategy for dealing with the crime crisis? Does one part of it know what the other part is doing? Can we expect any further announcements in the criminal justice area? Is something else to be taken from the Minister for Justice, such as responsibility for the running of her Department? Is the management of the Garda Síochána to be taken out of her hands and an independent body set up? Is that next? We are entitled to know exactly what is Government policy on criminal justice. We are entitled to consistency and planning. This Government has made many panic and reactionary announcements in this area which were not considered or prepared but taken from the emergency drawer in answer to the corresponding crises. I am sure there are more announcements in that emergency drawer waiting for the next crisis to set in. This Government has made itself a patchwork criminal justice policy in order to survive. That is what it is about. It appears that this Government is not about policy or action but survival. There is nothing the Taoiseach will not do and the Minister for Justice will not announce to save her skin or the Government's collective skin. Have they no honour or pride? People are suffering under this patchwork criminal justice policy. In so far as this House, under protest by Fianna Fáil, has been forced to discuss this Bill which will be shortly redundant, the Government stands accused not only of having no policy but of wasting Oireachtas time as well. We have seen in the other House how the Government deliberately devised a strategy to have ruled out of order legitimate questions on the scandal of the delisting of Mr. Justice Dominic Lynch. Unfortunately, we have seen today the Government frustrating the attempts of Fianna Fáil to use time constructively. The Opposition has not challenged one Government Bill which has been good and positive.

In so far as certain sections of this Bill are useful, they will be supported but, in so far as this Bill is redundant and wastes time, it will be opposed.

Mr. Neville

I wish to address the points raised by Senator Mulcahy now and by others on the Order of Business. This Bill governs procedures within the Garda and other areas covered by the Bill. It amends Acts of Parliament such as the Courts of Justice Act, 1924, the Criminal Justice Act, 1951, the Criminal Procedure Act, 1967 and other enactments, to give effect to Article 11 of the Council Directive 91/308/EEC of 10 June 1991 of the European Communities on prevention of the use of the financial system for the purpose of money laundering. The Bill amends Acts and implements EU directives. The new court and prison authorities will not have power to do so. It is only the Houses of the Oireachtas which can amend Acts and these amendments are key provisions in improving the efficiency of the Garda and the courts system. The new authorities announced by the Taoiseach are dealt with under the Bill, if the Senator is concerned about them. If I had a problem with a section of a Bill when I was on the Opposition side of the House it was always dealt with when I raised it on Committee Stage. It would be wrong to throw the baby out with the bathwater because of concern about one section. It is important this Bill is enacted immediately.

Senator Mulcahy asked whether we would have more Bills of this type. The Minister announced in the Dáil that she would regularly update and amend these Bills to improve their efficiency. She made it clear this would occur once every 12 months. In her Dáil speech she said this was the first of many other provisions to ensure the ongoing improvement in the efficiency of our courts system. The Minister of State said it today——

Mr. Currie

It was my first sentence.

Mr. Neville

Yes. The reply to the Senator's question, which was expressed as a concern and a criticism, is that other similar Bills will be produced. The Minister of State stated there will be ongoing improvements to the systems in operation in the courts and under the Acts which I outlined earlier.

Senator Mulcahy asked why the Bill took so long in coming before the Dáil. I cannot account for the eight years prior to 1995 when this Bill was announced but within two years of the Minister taking office, she has brought the Bill before the House. Changes are taking place. One of the Acts being amended goes back to 1924. The Minister, in two years, has introduced changes that Fianna Fáil failed to implement in the previous eight years. I am surprised that the approach is not to deal with the specifics of the Bill on Committee Stage but rather to throw out 22 sections. Senator Mulcahy is prepared to throw out 22 sections because of his concern for one section.

The Bill is another link in the comprehensive approach by the Minister to the crime problem. I compliment the Minister, the Minister of State, and the Government on the excellent work being done in this area since taking office, in particular the work done throughout 1996 which will go down as the year the Government and the State cried "stop" to crime. It is time the tables were turned on the criminal elements and notice was given that we are serious in stopping the growth of crime and reversing the rot in society.

The Bill will make a sizeable contribution to the fight against crime, not least because the central part of its intention is to reduce the time spend by gardaí in the courts and, as a consequence, make Garda resources available on the streets and in rural Ireland. I have often seen gardaí waiting to give evidence in court for hours and sometimes days. It was a great misuse of State resources which should be employed on the streets. This Bill will enable that to happen and there should not an objection to it.

The problems in the criminal justice system did not happen only in recent times. The system has been crying out for reform for many decades and it has remained practically unaltered since the foundation of the State. There is no quick solution to our outdated criminal justice system or to the crime problem.

It is vital we have more prison spaces. There have been more prison spaces provided already this year than in the previous two to three years. Up to 180 places have been provided this year and around 50 have been provided in the past three years. The Government is committed to providing 850 places in total, which is almost a 25 per cent increase in our prison capacity. It is vital there are more probation and welfare officers, more gardaí and full use of up to date technology.

Some months ago, the Minister for Justice announced the involvement of helicopters in the fight against crime. Perhaps she could provide an update on developments in that area; I have raised this point in the House over a number of years. The proposal that the Airs Corps and not the Garda will be responsible for the piloting of helicopters has been examined in other countries. This has been debated throughout Europe and it is agreed that it is more effective for gardaí to pilot helicopters than a third party. If the garda are trained pilots, because of their training, background and skills, they can react and respond to the developing situation, rather than a third party waiting for an instruction from a garda with them.

We must ensure there is an efficient system guiding and controlling the work of the Garda. We must ensure the courts are efficient and justice is meted out fairly and properly. There must be a comprehensive programmed to tackle the drugs problem which not only involves the Minister for Justice and the Minister of State but also the Minister for Education and the Minister for Health. Some months ago when he was in this House the Minister of Health outlined in detail the work he is doing. We have also seen proposals from the Minister of Education. There is a comprehensive and all embracing approach by this Government to the drugs problem, which is a welcome development.

Heretofore, we had an almost simplistic approach to the drugs problems as a criminal issue to be dealt with and controlled by the Garda and customs officials. Health and education had only a minimal role, if any. This Government has recognised that health and education have a major role to play in tackling the drugs problem and it must be complimented on this.

The Minister for Justice is the first Minister to look at the macro position of crime and to implement a comprehensive programme of change. The Minister, the Minister of State and the Government have prioritised the battle against crime and they have the determination and conviction to see the programme through. The Minister of Justice will implement a programme of reform, not only in the criminal justice system but also in her Department. I welcome the fact that she has decided to introduce a regular and, if necessary, comprehensive annual Bill similar to this. It will facilitate the speedy introduction of measures which are considered necessary by the Garda, the legal practitioners and others working in the legal area.

This Bill is an important element of the response of the Minister to the problem of crime. I welcome the provisions which facilitate the reduction of the amount of time spent by gardaí on court and court related duties. They will relieve gardaí as far as possible of non-operational duties in the courts and ensure a greater presence of uniformed gardaí in communities. There will also be more flexibility with regard to court appearances.

Gardaí will not be obliged when there is a further remand in a case to travel all over the country to courts. The Minister of State gave the example of a garda who had to travel from Dublin to Galway. The case was heard in the District Court in Galway but the prisoner was on remand in Mountjoy so the garda had to travel to Galway. This is a simple but necessary change. It ensures gardaí will not be obliged to spend up to a day sitting in a car in order to take a prisoner across the country only for the prisoner to be further remanded in custody. The provision for longer remand periods will also ensure more efficient use of Garda time. The change in the night court system will ensure that gardaí and others are not tied up all night with cases, as happens in the present outdated system.

I am not a legal practitioner but I was surprised to discover that there is no statutory provision for the issue of search warrants with regard to the commission of serious offences such as murder and rape. Such a provision is long overdue and is welcome, as is the extension of provisions relating to finger and palmprinting. They are simple and practical changes which one would have thought would have been made decades ago but we had to wait until this Minister took the initiative to make such changes.

Joy-riding has been a major problem in the community. I compliment the Garda on how they have tackled it. There was almost an epidemic of joy-riding incidents some years ago and the gardaí have managed to control and reduce the problem to an extent. Their work in that regard deserves our recognition. The provision for the use of what is called a "stinger" to deflate tyres will further assist them in their task. There have been too many fatalities and injuires of both innocent and guilty people as a result of joyriding. The level of fatalities is unacceptable and any provision that will lead to a reduction in that level is welcome. The Minister of State said special training will be provided for the gardaí who will use this equipment. People have a legitimate concern about the effects of deflating tyres in a car travelling at high speed but I am confident that the gardaí will be given access to the experience and knowledge gleaned from other jurisdictions where this equipment is used.

The provision regarding the consent of the Director of Public Prosecutions to other offences being taken into consideration in awarding punishment is also a practical measure. The practice of somebody announcing that other offences could be taken into account when the accused was being sentenced for a minor offence is hardly acceptable. The Bill will allow the DPP to give his view on whether the crimes as stated should be further investigated. Somebody who is convicted of a minor offence can state that a more serious offence occurred which he wants to be taken into account when sentence is being passed. That serious offence might just be mentioned without full details of the crime or its impact on the victim being available to the court to be taken into account when sentence is passed.

I welcome the Bill and commend the Minister for introducing it. I commend the Bill to the House.

Mr. O'Kennedy

I object in principle to this House being asked to adopt legislation which the Government has already indicated it intends to remove from the remit of the Minister for Justice, in whose name the legislation is being introduced. The purpose of the Bill is set out clearly in the Title. It is "An Act to amend the law relating to proceedings in criminal matters in the District Court, for that and other purposes to amend the Courts of Justice Act, 1924..." and other Acts dealing with courts and their administration. The Acts are set out in the Title of the Bill.

The second basis for my fundamental objection is the fact that the Title also states: "...to enable the Minister for Justice to make rules for the regulation and good government of prisons, and to provide for related matters." It is clear that this Bill will enable the Minister for Justice to make rules regarding the operation of the courts and for the regulation and good government of prisons. That was the purpose of the Bill when it was introduced in the Dáil some time ago. However, last Tuesday, 12 November 1996, the Taoiseach told the Dáil, according to the Official Report, Vol. 471, Col. 653: "An independent and permanent board to be known as the Courts Service will be set up within a week on a non-statutory basis". If one is to accept the Taoiseach's assertion, that independent board must now be in existence. He continued: "That body will be put on a statutory basis as soon as possible. Its function will be to manage a unified court system. Its chief executive officer will be recruited through open public competition.". In case there be a doubt as to the total mess the Minister for Justice and the Government have generated in this area, the Taoiseach added: "Responsibility for the prison service will be transferred from the Department of Justice to an independent, permanent, statutory board.". The only thing he did not say about responsibility for the prison service was that it would be set up within a week. However, one can interpret from the fact that the two boards are referred to together that the same intention applies. It is an offence to this House, in light of the circumstances that have been discussed in the Dáil since the publication of this Bill, to ask the Seanad to pass legislation in the name of a Minister who will have no further powers in this area as a result of the change in roles and responsibilities announced by the Taoiseach.

I hope this Bill will not be enacted because it would be the first time the Oireachtas would be asked to effect powers for a Minister on prisons and courts in the knowledge that the Minister would have no power in this area in the further and would be unable to deliver, according to the Taoiseach's statement in the Dáil. Perhaps even today she is not the person in charge. The Taoiseach said that, as of last Tuesday the independent statutory board would be dealing with the administration of courts and perhaps the prison also. That is the greatest nonsense I have ever heard in my experience of over 31 years here, including spending considerable time in Government.

I object in principle to that Minister being given any further power or role in this area even if she had the powers the Taoiseach says she will no longer have. She has proven to be derelict in the discharge of her constitutional responsibilities. Anyone with any experience of procedures in Government will know one of the most basic responsibilities. When a Minister brings a proposal to Government for Cabinet decision, it is formally circulated to other Ministers and the agenda is very clear, as it was in this case. The agenda would mention a proposal by the Minister for Justice to terminate the appointment of Judge Dominic Lynch, in this instance. I regret he is involved in this because I have known him since studying for the Bar in the late 1950s.

That is the fundamental function of a Minister in any precedent one wants to consider. When one's proposal to Government is adopted, and I had this experience many times, the practice is that the departmental officials wait outside the Minister's office when he or she returns to hear whether the proposal made to Government has been adopted. The departmental officials here today must be familiar with this. Having been informed the proposal is adopted, they immediately implement that Government decision, which is constitutionally binding.

Acting Chairman (Mr. Dardis)

The relevance of this matter to the Bill is very tenuous.

Mr. O'Kennedy

The Minister for Justice we are being asked to empower has proved to be utterly incapable and unfit to discharge existing obligations, much less the new ones we are being asked to give her.

Acting Chairman

The Senator has been given very substantial latitude and it would be better if he concentrated on the Bill.

Mr. O'Kennedy

I am doing so already. It is quite clear that to ask another House of the Oireachtas to give further powers to a Minister or Department found to be in dereliction of their duties runs totally counter to the constitutional obligation of legislators.

Another element is the constitutional function of the Minister for Justice. The obligation is clear to anyone who looks at the role of the Government in the Constitution. It is mandatory and specific. The Attorney General also has a role in the Constitution: "There shall be an Attorney General who shall be the adviser of the Government in matters of law and legal opinion". It is not discretionary but mandatory.

When both of those constitutional functions have not been discharged as required under the Constitution, attributing blame to officers of the Department flies against every principle of Government in this or any other State. To invite a stranger in law, which is what the distinguished Mr. Seán Cromien is, to examine the functions, administration, execution and effectiveness of the Department of Justice compounds the original breach of constitutional responsibility.

It shows no respect for the constitutional obligations of both the Minister for Justice and the Attorney General. Could anyone seriously expect that, despite the detailed examination carried out by those two people, who are eminent in their own fields, they could, as strangers to the constitutional obligation, make a finding that the real dereliction was the dereliction of the constitutional function of a Minister or an Attorney General? Does this Government seriously think it can pull the wool over our eyes, as legislators, some of us with considerable Government experience, and the public generally, by inviting strangers to make findings? Those gentlemen are strangers to these Departments. Did we really think they would say that the Minister and her immediate officials were at fault in not effecting this Government decision, which they sought and got? Nonetheless, we are being asked to give more powers to that Minister, despite the clear announcement that she will no longer be responsible for this area.

Section 18 states: "The Minister for Justice may make rules for the regulation and good government of prisons". We are now giving discretion to the Minister to make rules for the good government of prisons. At the same time, the Taoiseach, who leads the Government in collective responsibility, has announced his intention to set up an independent, non-statutory board to do just that. What kind of constitutional nonsense is this? I do not mind if the Government, which has shown it is completely unaware of constitutional obligations, tries to involve private citizens to clear up a constitutional mess. I know both private citizens, one particularly well, and have a high personal regard for them. The Government has no right to try to undermine the role of the Oireachtas and ask us to give legislative effect to something that will be passed on to another body.

That is why I raised this on the Order of Business and asked that it be removed from our agenda. The only point I make for the Government is that when this Bill went through the Dáil, it predated the disclosure of the greatest constitutional mess that has occurred for some time. As of that time, even through one would have doubts about the capacity of the Minister for Justice one could say that this Bill was constitutionally appropriate and the Oireachtas could pass it in the knowledge that there was no constitutional breach involved. However, now that the Government has said it is changing all that, I protest at the way the constitutional function of the Oireachtas is being undermined by being asked to give effect to this.

Suppose that the non-statutory board is not set up before next Tuesday, we will be giving powers to the Minister which she will exercise for a day or two, if she has not been relieved of that responsibility. Surely we are entitled to a proper presentation on the matter. I have great respect for the Minister of State but on a matter of such importance the Minister responsible must be aware, if she is ever to be aware of her constitutional function, that she is obliged to come before the House and clarify the position. Nothing in the Minister of State's statement is remotely relevant to the discharge of ministerial responsibility.

Under the Bill it will be possible to transfer the case of someone arraigned before a District Court to a different District Court and, on the face of it, that makes sense. I would not normally object to it because I want to see the speedy administration of justice. However, as a result of the Taoiseach's statement, the administration of our judicial system is the responsibility of an independent, non-statutory body. We cannot ignore the fact that it will play a role in how the courts are run, how many justices will be sitting and how the business of the courts will be properly expedited. Nonetheless, this House is being asked to pass legislation which ignores that fact and pretends that the Minister for Justice and her Department will be responsible for this.

It is clear that there has been pressure on the Minister during the last week. There has also been unfair pressure on her officials and an attempt to take responsibility away from the Minister and her office where it belongs. Obviously the Minister's officials had other things on their mind. They knew that the Minister had set up an internal investigation to allocate blame. I have more respect for officials because I have experience of working with them since I first became a Minister in 1970. I have been in six or seven different Departments since then and I object to them being used and abused. They are part of the executive function of Government. I also object to the Oireachtas being used and abused and being asked to pass a nonsense.

I only became aware this morning that I would be asked to look at this but there is no precedent for any Minister coming into the House to give effect to the main purpose of a Bill in the knowledge that she has been, or is about to be, stripped of responsibility for those areas by the Leader of her Government.

This Government undermines the Constitution everyday. It may not do so deliberately but either from lack of experience or respect for the constitutional function of Government, it is getting into a bigger constitutional minefield everyday. It has no right to involve the Oireachtas in the same constitutional mess. I protest in the strongest possible way and I will oppose this Bill at every section. The Bill should not have been brought in and until such time as the Minister and the Government can clear up their own constitutional mess they should leave us out of it.

Ms Gallagher

As Labour Party spokesperson on justice I would normally welcome Bills before the House. This morning I appreciate that there is some confusion with regard to this Bill because of the decisions of Government. In that sense I appreciate a certain amount of what Senator O'Kennedy has said.

When a Bill is before us we should use the opportunity to put forward our views irrespective of the confusion surrounding it. I believe this Bill will require radical reform.

It amused me to listen to Senator Mulcahy. He seems to be playing on both sides of the court. At one stage he criticised the Minister for the delay in bringing this legislation before the House and then decried her for bringing it before the House too soon. It seems to be a general complaint that the Minister is criticised for delay yet when she acts she is accused of knee-jerk reactions. You cannot have it both ways.

The Minister has introduced a wide range of crime legislation. We are inundated with legislation and I often wonder if the time has come to assess what we have passed. There has been such a rush of legislation that there are bound to be errors in it. That is a very serious thing to say but we cannot undermine our role as legislators and our duty to examine legislation in the full sense of the word. It is time for an investigation and assessment of what we have done to date so that we can avoid any so called knee-jerk reactions and identify clear areas of need.

This is not bad legislation. I would have had more difficulty with some provisions which were passed without much mention. This Bill deals with practical issues and, in that sense, I would not fault it. As to whether we are transferring powers from the Department of Justice to an independent non-statutory body, I have a bee in my bonnet about this because we, as legislators, are forever giving powers to independent bodies that should belong to Government and both Houses of the Oireachtas. I wonder are we doing the right thing. If you have a complaint about planning you go to An Bord Pleanála; if you have a complaint about Revenue, you have to go to the Revenue Commissioners because the Minister for Finance has no say in the matter. If you want a national primary route to be built, as I do in Cavan-Monaghan, the Minister has no say in the matter and you have to go to the National Roads Authority. Every day of the week it seems that we pass power from elected representatives to unelected and unidentified individuals who operate behind closed doors. I am seriously concerned about this because the politicians take the flak for what is wrong with the country but the reality is that we have very little say in what is happening.

How often do we address a particular problem by passing it on to somebody else? It may well save the day in the short term but it creates problems down the line with which I am not at all happy. I want that on the record because I feel very strongly about it. There is no point in decent people entering politics to try to do something for the country when it seems they could achieve more by being appointed to some board where they have all the power they want and are not answerable to anybody. If there are problems in the Department of Justice we will not solve them by passing them on to somebody else. These problems must be addressed at departmental level. The Department must operate effectively, regardless of what are its powers.

The legislation before the House today is very practical. I see no problem in any measures that would release gardaí from tedious court appearances and allow them to get on with the job, that is, to create a peaceful and safe society for our citizens. They should not to have to endure sitting in courts throughout the length and breadth of this country day after day, doing nothing but swearing on evidence that they arrested the individual before the judge. That is a waste of valuable time when there is so much more they could be doing. This legislation, which hopes to resolve many of these issues, is more than welcome. It will definitely improve efficiency in the court system and it will enable many gardaí to spend more time detecting and investigating crime, to be more available to the public and to be seen on the street rather than asking them to attend court day after day.

I particularly welcome the new system of written certificates to evidence the garda's arrest, charge and caution of the individual. That is a very practical solution to a very difficult problem. The extension of the period of remand to a maximum of 15 days is another practical solution to the problem of the arrested person and the gardaí who arrested him or her having to attend court every eight days. This was not necessary and the extension of the period of remand does not offend justice.

There should surely be a greater concern in relation to other aspects of the bail laws than those currently receiving public attention. We do not seem to have a maximum period on detention prior to trial under the current and proposed legislation. What is proposed is very small fry in terms of being remanded in custody for a period of up to 15 days before being brought before a judge. I have no difficulty with that as much more serious issues are at stake.

The other practical proposals in this Bill relate to search warrants. It is clear that gardaí often had difficulty with the technicalities of obtaining a search warrant in terms of the type of offences they were hoping to detect. Since that was often challenged in court at a subsequent date, it is sensible that the legislation should give the gardaí comprehensive powers of search in relation to all serious offences including, among others, as the Minister stated, serious bodily harm, kidnapping and rape.

Measures relating to the powers of the DPP will probably require further amendment. I am not sure what might be entailed but at least something is being done in relation to the requirement that the DPP should give his consent for the summary trial of indictable offences. This is a serious matter and it should not rest with the individual, perhaps through ignorance of the system, to accept a summary trial when he or she is entitled to a full hearing. It is important that justice is not only done but is seen to be done and that this matter be referred to the DPP on every occasion. I have no difficulty with that.

The Bill is very practical and strengthens the capacity of the gardaí to respond to serious crime. Anybody who visits the courts, especially in this city, knows only too well that you often see more gardaí than civilians in court because of the system in place. One problem I am aware of is the requirement to bring the accused back to the court of original arrest from remand. As remand prisoners are usually held in Mountjoy, this involves a day trip for the arrested individual as well as a number of gardaí and serves no element of justice whatsoever. It is simply an old procedural rule.

The new provision is beneficial because it will allow the accused person to be brought before the nearest District Court pending trial at which stage he or she will be brought to trial at the court in the district in which the offence occurred. The possible downside of that provision is that the courts in the metropolitan District Court area may be further inundated with remand appearances which may cause difficulty in terms of the practical administration of the courts in Dublin. I wonder how that will work.

I hope to get clarification from the Minister on section 14 of the Bill which deals with the definition of sexual offences. What is its purpose? This is not specified. It deals with some reforms, I presume in relation to definition, but I do not know what they are. I hope this is an expansion of the definition in terms of bringing together the various criminal laws to make it easier to determine where such an offence has occurred so that charges do not fall on technicalities.

We, as legislators, sometimes deal with a public that does not understand the system; this causes me concern. However, it is not a problem in relation to this Bill. We are dealing with practical elements that will speed up the administration of justice and allow the Garda to be more effective.

The public often seems to think that the Government is doing nothing or that the system is radically faulty. At the same time, we have brought in a proposal to change the bail laws; I believe people think the new bail laws will solve all crime. In the region of 9 per cent of crimes are committed by those on bail and the public should understand that this measure can reduce crime by that percentage.

It is important for efforts to be made to inform the public about existing legislation. In the last number of years we have brought in a wealth of criminal justice legislation which has tackled crime in a very effective way. Until the public becomes aware of what has been done in this area people will labour under the misguided and misconceived notion that the system is very faulty, which is not the case. We have made many efforts to tidy up the system and to update what was a very old system of justice in order to deal with the realities of crime today.

Debate adjourned.

Sitting suspended at 1.5 p.m. and resumed at 2 p.m.