I am sure Members will forgive me if I am not my usual mellifluous self but, among other things, I am suffering from influenza and tonsillitis.
I thank the House for its co-operation in dealing this week with no fewer than four Bills — all dealing with important matters — which I have brought forward and which are being initiated in the Seanad. There is obviously a heavy week's business ahead of us but I know from my previous dealings with the House that we will get through it efficiently and productively.
The first Bill we are discussing is the Criminal Justice (No. 2) Bill, 1997, and it is no secret that it is a measure to which I attach particular importance. Under the main provisions of the Bill persons trafficking in drugs to the value of £10,000 or more will face mandatory minimum sentences of ten years, trials will take place more quickly through the abolition of preliminary examinations, courts will automatically initiate an inquiry into the assets of people convicted of drug trafficking offences with a view to confiscating those assets, gardaí will have to spend less time in court through extending the type of evidence which can be given by certificate and the rules relating to a court taking into account guilty pleas are being placed on a clear statutory basis.
It may be useful for the information of the House for me to mention that the Government has decided that two amendments should be proposed to the Bill on Committee Stage. Other amendments could arise, particularly in the light of what Senators have to say about the Bill but it is important I should mention the two amendments approved by the Government at this stage. The first relates to what is known as the "year and a day rule". This is a common law rule going back many centuries. It has come in for particular comment in recent times in the light of matters arising in the context of the Finlay report on the BTSB. The rule is to the effect that, for the purpose of offences involving death, an act is conclusively presumed not to have caused a person's death if more than a year and a day elapses before a person dies. Having regard to modern medical practice and technology, the rule is an anachronism and I propose to introduce an amendment to the Bill to abolish it. Obviously, the abolition of the rule cannot affect cases retrospectively but it is important and appropriate to take this opportunity to abolish the rule.
The second amendment which it is proposed to make on Committee Stage relates to the Criminal Justice (Drug Trafficking) Act, 1996. That Act provides for the detention for up to seven days of persons suspected of drug trafficking offences. As that legislation stands periods of detention in excess of the first 48 hours can only be authorised by a judge of the Circuit Court, the President of the District Court or a judge of the District Court nominated by the President of the District Court for the purposes of the Act.
The House will be aware that difficulties arose recently in relation to the operation of these provisions. The President of the District Court has indicated that he has now nominated all judges of the District Court for the purposes of the Act. However, in all the circumstances, it would be best to amend the 1996 Act so as to provide that, as a matter of law, all judges of the District Court will be qualified to deal with applications made to them under its provisions. An official amendment will be brought forward on Committee Stage to achieve this.
Aside from these official amendments I will take into account any suggested changes that emerge in the context of the debate and if changes in criminal procedure and related matters suggest themselves between now and Committee Stage which should be taken on board, this will be done. In this context, I am also considering a number of other technical amendments to existing legislation.
While this Bill forms only part of a major programme of criminal law reform which is being undertaken, it is nevertheless a wide ranging Bill which contains farreaching provisions. The fact that this major criminal law reform measure is being introduced so early in the lifetime of this Government is clear practical evidence of the Government's policy of zero tolerance towards crime, particularly, but not exclusively, drug trafficking. The Bill contains a series of very strong measures which are, regrettably, all too necessary as a response to those who inflict such harm on our community.
Let me make it clear early in this debate that I do not pretend that the answer to our community's drug problem lies exclusively in criminal justice measures. Issues of demand reduction, particularly in the context of social exclusion, must be addressed. The Government recognises this as a priority and is taking action on a wide range of fronts but, as Justice Minister, I have particular responsibility in relation to the supply side of the drugs problem and it is obviously incumbent on me to bring forward measures which will disrupt to the greatest extent possible those who engage in the deadly trade of drug trafficking.
I want to say a few general words at this stage about each of the main provisions of the Bill which I have mentioned and then I will go into more detail on the sections of the Bill.
The Bill amends the Misuse of Drugs Act, 1977, through the addition of a new offence of possession of drugs with a value of £10,000 or more with intent to supply. The Bill provides a minimum penalty of ten years to be imposed where a person is convicted of the offence. This will apply automatically subject to certain limited exceptions relating to the interests of justice. For example, a court will be able to take into account the fact that a person pleaded guilty or materially assisted the Garda in the investigation of the offence.
While the normal statutory remission will apply to persons sentenced for the new offence, the Bill prohibits the granting of temporary release except for grave humanitarian reasons and any such release can only be for the limited duration necessitated by those reasons. Where the court is satisfied that a person convicted of the offence was addicted to drugs and that addiction was a substantial factor in the commission of the offence, it may list the sentence for review after not less than half of the sentence has been served.
Subject to certain exceptions, a person facing trial on indictment has a right at present to a preliminary examination in the District Court, although the accused can waive that right. At the preliminary examination stage the District Court can decide that the accused has no case to answer, although in practice this very rarely happens. The procedures surrounding preliminary examinations can be quite cumbersome particularly when depositions have to be taken from witnesses. I am concerned that in some cases the procedure may be used as no more than a delaying tactic by people charged with serious offences. While preliminary examinations have existed in one form or another since the 17th century, I believe that developments in the law and practice have undermined the rationale behind them. In particular, I believe that the fact that a person cannot be tried on indictment without the involvement of the Director of Public Prosecutions deals sufficiently with the question of an independent element being involved in the question of a person being tried on indictment. In the circumstances, and particularly in the context of reducing delays in bringing persons to trial, the Bill abolishes preliminary examinations. As a necessary safeguard, the Bill provides for a new procedure under which an accused who is to be tried on indictment may apply to the trial court before the trial is commenced to dismiss the charge or charges on the basis that the prosecution case is insufficient to support a conviction by a jury.
Under the Criminal Justice Act, 1994, where a person is convicted on indictment the court can determine whether the offender has benefited from the offence and can make an order confiscating money to the value of any such benefit. This process can at present only be initiated on the application of the DPP. The Bill changes this by providing that on conviction for a drug trafficking offence the court will automatically determine whether the offender has benefited - unless the court is satisfied that the amount which might be recovered would not be sufficient to justify the making of a determination — with a view to making a confiscation order.
Under current legislation the Garda can give certain procedural evidence to a court by way of a certificate — for example, evidence of making an arrest. The Bill extends this to cover evidence in relation to the custody of evidence and should help to reduce the amount of time which gardaí have to spend in court, freeing them for duty in the community.
At present the rules governing the consideration by the courts of guilty pleas are contained in case law. The Bill places the rules governing guilty pleas on a clear statutory basis. I believe it is in the public interest to encourage persons guilty of offences to so plead at as early a stage as possible. Under the provisions of the Bill a court will take into account the stage in the proceedings for the offence at which the offender indicated his or her intention to plead guilty and the circumstances in which this indication was given. The Law Reform Commission in its report on sentencing identified confusion which had arisen about the law relating to whether a maximum penalty could be imposed in a case where a person pleaded guilty. In my view circumstances can arise where, notwithstanding a plea of guilty, the nature of an offence can be such that the maximum penalty should be available to the courts when sentencing. To remove any doubt about this issue, the Bill contains a provision to this effect.
I will now deal in some detail with the sections of the Bill. Part I contains standard provisions providing for certain necessary definitions, commencement provisions and the payment of expenses arising under the Act.
Part II provides for the new drug related offence. Section 4 inserts a new section — section 15A — into the Misuse of Drugs Act, 1977, and creates a new offence related to the possession of drugs with a street value of £10,000 or more for the purpose of sale or supply. On the issue of ascertaining the value of any seized drugs, it makes provision for evidence of the "market value" of the drugs concerned, by which is meant the price the drug would be expected to fetch on the market for the unlawful sale or supply of controlled drugs, to be given by a member of the Garda Síochána or an officer of Customs and Excise whom the court is satisfied has knowledge of the unlawful sale or supply of controlled drugs.
I provide in section 5 that a person convicted of the new offence of having drugs with a value of £10,000 or more will incur a penalty commensurate with the gravity of that crime. The mechanism to achieve this is through an amendment of the Misuse of Drugs Act, 1977, so that a person found guilty of the new drug related offence will be liable to imprisonment for up to life and, at the court's discretion, to an unlimited fine. However, given the unique nature of the trade in illegal drugs, the great misery inflicted on so many people by those who deal in that deadly trade and to demonstrate, as I believe we must, our commitment as legislators to do all we can to rid us of this scourge, I have provided that in such cases the court must specify that the minimum period of imprisonment to be served upon conviction for the offence shall be at least ten years. This is undoubtedly a harsh punishment but it is warranted and proportional. It should send an unequivocal message that we are serious about doing all we can to eradicate the blight of the illegal drugs trade.
A court will be entitled to depart from the requirement to impose the minimum period set down in the section only in exceptional and specific cases where it would otherwise be unjust in all the circumstances to impose the minimum ten year sentence. In this regard, the factors which the court may consider relevant include whether the person pleaded guilty, taking account of the stage at which such an intention was indicated and the circumstances surrounding it, and whether the person materially assisted the investigation of the offence. Everyone would agree that any person who seeks mitigation of sentence on account of a guilty plea should be required to demonstrate that the plea represented a genuine willingness to assist the Garda and the courts and was not simply a recognition of the fact that the case against that person was so overwhelming as to leave no prospect of him or her mounting any kind of credible defence.
While thus giving the courts the power to depart from the obligation to impose the minimum ten years penalty in certain very limited circumstances, I am determined that those who receive such a sentence will know that for them the prison door will not revolve. To this end, the power conferred on the Minister for Justice, Equality and Law Reform under the Criminal Justice Act, 1951, to commute or remit a punishment will not be exercisable in those cases until the minimum period specified by the court has been served. Furthermore, while normal statutory remission will apply, the power to grant temporary release to a person serving a term of imprisonment will not be exercised during the currency of such a sentence unless for grave reasons of a humanitarian nature and any release granted on that basis will only be of such limited duration as is justified by that reason.
The Bill attempts to make a distinction between those who are cynically involved in the drugs trade for profit and those who, because of a problem with addiction, have become caught up in it. While I emphasise that feeding a habit is no excuse for engaging in this trade, it would be futile not to recognise the part which addiction can play. Therefore, the section gives a court the power, when imposing sentence on a person convicted of the new drug related offence, to inquire whether the person was addicted to drugs at the time of the offence and, if satisfied that he or she was addicted and that this was a substantial factor leading to the commission of the offence, it may list the sentence for review after half of the mandatory period specified by it has expired. When the review takes place the court may, having regard to any matters it considers appropriate, suspend the remainder of the sentence on any conditions it considers fit. I believe this provision is appropriate and just but I should make clear that, even where these mitigating circumstances arise, the persons involved will still face a long period of imprisonment. Because of the very serious nature of the new drug related offence the section specifically rules out summary disposal of the matter following a plea of guilty.
Section 6 of the Bill provides for an amendment of the defence provisions contained in section 29 of the Misuse of Drugs Act, 1977, whereby a person charged with the new drug related offence can rebut the presumption that possession of a controlled drug with a value of £10,000 or more was for the purpose of sale or supply, by showing that at the time such possession was lawful by virtue of regulations made under section 4 of the 1977 Act. Section 7 of the Bill amends the definition of "drug trafficking offence" contained in section 3 (1) of the Criminal Justice Act, 1994, to include the new drug related offence.
Part III of the Bill deals with the abolition of preliminary hearings. I have already explained the thinking behind this. The House will appreciate that it is necessary in making this change to put in place a new legislative substructure dealing with criminal procedure and this accounts for the relatively complex and technical nature of the provisions contained in Part III of the Bill. These proposals to abolish preliminary examinations involve amendment or repeal of a number of sections of the Criminal Procedure Act, 1967, and consequential amendments to a number of other enactments.
Section 8 of the Bill amends the 1967 Act by substituting a new section for section 4 to define who is the prosecutor for the purposes of the Act. Thus, it is provided that the Director of Public Prosecutions, the Attorney General, a person prosecuting at the suit of either or a person authorised by law to prosecute the offence may be the prosecutor.
Section 9 inserts a new Part into the Criminal Procedure Act, 1967, to be referred to as Part IA and consisting of sections 4A to 4Q. Section 4A provides that where a person is charged with an indictable offence before the District Court he or she will be sent forward for trial, unless the matter is to be tried summarily or the accused pleads guilty or the accused is unfit to plead.
Under section 4B, where an accused is sent forward for trial, he or she must be served with a book of evidence. The book of evidence essentially contains details of the case against the accused. Among the documents which make up the book of evidence are a statement of the charges against the accused, a copy of any sworn information in writing upon which the proceedings were initiated, a list of witnesses and a list of any exhibits. The book is to be served within 42 days of the accused being sent forward. This period may be extended by the trial court where there is good reason and where it is in the interests of justice to do so. Further extensions are also possible. If the court refuses an extension, the proceedings will be struck out. However, this of itself will not prejudice the institution of any future proceedings against the accused by the prosecutor.
Provision is made in section 4C for additional documents, such as a list of further witnesses and their statements, any further evidence of witnesses already notified, copies of any depositions and a list of further exhibits, to be served on the accused after service of the book of evidence. Under section 4D the accused is given the right to inspect all exhibits forming part of the evidence against him or her.
Under the current procedures a District Court judge may decide, having conducted a preliminary examination, to discharge the accused if he or she is of the opinion that the evidence does not disclose a sufficient case to put the accused on trial. The new procedures being introduced here will oblige the judge to send the accused forward for trial where he or she is charged with an indictable offence, subject to the exceptions already mentioned. As a necessary safeguard these procedures provide a means for an accused to seek to have the court of trial dismiss the charges after the service of the book of evidence. Section 4E provides accordingly. Where the court decides to dismiss the charges because it appears to it that there is not a sufficient case to put the accused on trial the prosecutor may, within 21 days, appeal to the Court of Criminal Appeal, which may either affirm the decision or quash it, thus allowing the trial to proceed.
Provision is made in section 4F for the taking of sworn depositions by a judge of the District Court where the judge is satisfied that it would be in the interests of justice to do so. The deposition will be taken in the presence of the judge and the accused who will be informed of the circumstances in which it may be admitted as evidence. The deposition will be recorded and read over to the deponent who will then sign it. It will also be signed by the judge. It should be noted that the present procedure that depositions must be taken down in writing is not being followed. Instead the section provides for depositions to be recorded, which is more in keeping with present day realities in this regard.
Under section 4G, these depositions may be admitted in evidence at the accused's trial in certain circumstances, for example, where the deponent is dead or unable to attend the trial to give evidence and where the deposition was taken in the presence of the accused and the accused had the opportunity to cross-examine the deponent. The trial judge can decide not to admit the deposition where he or she is of the opinion that it would not be in the interests of justice to do so. Section 4H makes provision for an accused to obtain legal aid in all proceedings under this Part of the Bill, including proceedings for the taking of depositions.
In line with current procedures which apply under the Criminal Justice Act, 1997, section 4I makes provision for relevant proceedings to be held otherwise than in public where the court is satisfied, because of the nature or circumstances of the case, or otherwise in the interests of justice, that it is desirable that the public be excluded from the court. Similarly, section 4J places a bar on the publication or broadcast of information about such proceedings, apart from certain basic facts about the case. At the request of the accused, the judge may permit more information to be published concerning proceedings for the dismissal of a charge.
Sections 4K and 4L of the Bill are concerned with witness orders and witness summonses, respectively. They give the trial court the power to issue a witness order and a witness summons requiring the attendance in court of the person to whom it is directed to give evidence and to produce documents or any other thing specified in the order. Any person who disobeys a witness order or a witness summons without just cause will be guilty of contempt of court.
To cater for situations where, after the accused has been sent for trial it is sought to amend the indictment, sections 4M, 4N and 4O provide appropriate mechanisms. Section 4M permits alternative charges or additional charges to be laid against an accused and for the indictment to be amended accordingly. Section 4N allows the indictment, with the consent of the accused, to be amended to include counts which are unrelated to the original charge.
Section 4O allows the court to correct a defect in the charge unless it considers that this would result in an injustice. Section 4P provides a procedure for the Circuit Court to transfer a case to the Central Criminal Court where the accused is subsequently returned for trial to the Central Criminal Court on another charge related to the first charge. Both cases may thus be tried together.
To save the time of gardaí and prison officers, who must accompany accused persons held on remand to court from the prison, the Bill provides in section 4Q that the person may be remanded to appear at a court which is near to the prison in which he or she is being held. That court may further remand the accused in custody or on bail.
Arising from the changes in criminal procedure which I have outlined, section 10 of the Bill provides for a number of other amendments to the Criminal Procedure Act, 1967. It substitutes a new title for Part II of the Act, which will now relate to guilty pleas and other matters. Formerly, it related to the preliminary examination of indictable offences in the District Court. It will also repeal sections 5 to 12 and sections 14 to 18 of the Act concerning procedures related to the preliminary examination. Section 13 of the 1967 Act, however, is simply being amended to provide that where an accused wishes to plead guilty in the District Court that court may, subject to the consent of the DPP or the Attorney General, deal with the offence summarily or, if the accused signs a plea of guilty, send him or her forward for sentence to the court to which he or she would otherwise have been sent forward for trial. Another amendment to section 13 will provide that in a case where the accused withdraws a written plea of guilty having been sent forward for sentence on that plea, the court will treat the withdrawal as if the person had pleaded not guilty and the prosecutor will then be required to serve on him or her the book of evidence with the appropriate time for the service of documents being deemed to run from the date that the not guilty plea is entered.
Because of the number of other Acts which contain provisions related to the preliminary examination procedure, a number of amendments are required to those Acts as a result of the new procedures set out above. Therefore, sections 11 to 22 of the Bill provide for the necessary amendments and I do not think it is necessary for me to detail them. For the sake of continuity it is provided in section 23 that the preliminary examination procedure will continue to apply to cases commenced before the procedures contained in the Bill come into operation.
Part IV of the Bill contains a number of amendments to the Criminal Justice Act, 1994, relating to confiscation orders. Section 24 amends section 4 of the 1994 Act to require a court, following a conviction for a drug trafficking offence, to determine whether the convicted person has benefited from drug trafficking. At present, such a determination is made only on the application of the DPP. If the court feels that the amount of money which might be recovered under a confiscation order would not be sufficient to justify it making such a determination it can decline to do so.
Sections 25, 26 and 27 of the Bill amend, respectively, sections 7, 10 and 11 of the 1994 Act and are consequential to the change being made to section 4. These cover situations dealing with the reassessment of whether a defendant has benefited from drug trafficking, with statements relevant to the making of confiscation orders and with the provision of information by the defendant.
Part V of the Bill is concerned with the treatment by the courts of guilty pleas by defendants and the use of certificate evidence in criminal cases. Section 28 addresses the issue of the weight which is to be given to a guilty plea made by an accused person. It provides that a court, in deciding on the sentence to impose on a person who has pleaded guilty to an offence, will if appropriate, take into account the stage in the proceedings at which the person indicated an intention to plead guilty and the circumstances in which the indication was given. The court may still impose the maximum permissible penalty for the offence, in spite of a guilty plea, where it is satisfied that the circumstances of the offence warrant such a penalty. This should clarify a situation where, as I mentioned, the Law Reform Commission has identified a degree of confusion which exists at present. The provision does not apply to an offence where a mandatory penalty is provided for.
Section 29 is designed to achieve further savings in the time which gardaí need to attend court to give straightforward evidence relating to custody of exhibits. It allows this type of evidence to be given by certificate by a member of the Garda Síochána. This provision should also save court time.
Part VI of the Bill contains technical amendments to our extradition law dealing with certification of offences which are considered desirable following discussions between the Attorneys General in this jurisdiction and in the UK. Sections 30 and 31 contain technical amendments in the legislation dealing with extradition between this country and Northern Ireland and Scotland. They provide that, for the purposes of Part III of the Extradition Act, 1965, an offence punishable under the law of Northern Ireland or Scotland by imprisonment for a maximum period of at least six months and triable either summarily or on indictment shall be treated as an indictable offence or summary offence on the basis of a certificate issued by the appropriate authority in each jurisdiction. They also provide for the acceptance of such certificate as evidence of the matters so certified.
I hope it is clear from what I said that the Bill represents a considerable enhancement of the ability of our criminal justice system to cope with the demands being made upon it. While some of the measures which it contains are clearly severe, they are, unfortunately, warranted by and proportional to the dangers which our community faces.
As the House will be aware this important Bill is being debated first in the Seanad. I am sure it will be a constructive debate and I can assure the House that I will take fully into account the points made. I thank Senators for their co-operation in this regard and look forward to a fruitful debate. I apologise for my inability to remain throughout the Second Stage debate due to the fact that I must return to my constituency this evening. However, I will follow the debate very carefully and will take into account all constructive suggestions made by Senators.
