This is a Seanad Bill which has been amended by the Dáil. In accordance with Standing Order 103, it is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. On the question "That the Bill be received for final consideration", the Minister may explain the purpose of the amendments made by the Dáil. This is looked upon as the report of the Dáil amendments to the Seanad. The only matters, therefore, which may be discussed are the amendments made by the Dáil. For Senators' convenience, I have arranged for the printing and circulation of the amendments. Senators may speak only once on Report Stage.
Criminal Justice (No. 2) Bill, 1997 [Seanad Bill amended by the Dáil] : Report and Final Stages.
Acting Chairman
Question proposed: "That the Bill be received for final consideration."
A number of amendments were made to this Bill in the Dáil and I am pleased to outline the background to them to the House. Some of the amendments are of a technical nature but many arise in the context of important and substantial additions to the Bill since it was considered in this House. The most important of these deal with the protection of witnesses and related matters. Other additions arise because of the need to make certain amendments to the Offences against the State (Amendment) Act, 1939, and to make provision for the detention and questioning of prisoners in relation to offences which they may have committed.
When the Minister introduced the Bill in the Seanad, he referred to it as a flagship measure in the major programme of criminal law reform he was undertaking. That remains the case and, in fact, the Bill has been enhanced and strengthened considerably during its passage through both Houses. Senators will be aware that the procedure in the House is for all the amendments made in the Dáil to be considered together. Given the number of amendments at issue, the importance of this Bill and the fact that the Bill was initiated in this House, it is wise to explain in detail the amendments which were made in the other House.
Senators will recall that the Bill had three main purposes – to provide for the minimum ten year sentence for people involved in drug trafficking where the value of the drugs was £10,000 or more, to require the courts to initiate assets inquiries in drug trafficking cases with a view to seizing the assets of the traffickers and to speed up trials through the abolition of the preliminary examinations.
I will outline the amendments made to the Bill in the Dáil. Amendment No. 1 deals with the commencement provisions of the Bill. A number of amendments were made in the Dáil which will insert a number of new sections into Part VI of the Bill. These, along with the present sections 30 to 35, are stand-alone provisions for which no time lapse is either necessary or desirable before they are brought into force. The purpose of amendment No. 1 is to ensure that these provisions come into operation once the legislation is enacted.
Amendments Nos. 2, 3, 4, 5, 6, 7, 8, 20, 21 and 25 are drafting amendments, proposed in the interests of clarity, to deal with the definition of the prosecutor for the purposes of Part III of the Bill. Part III deals with amendments to abolish preliminary examinations.
A number of sections in Part III refer to the consent of the Director of Public Prosecutions or the Attorney General being required before an accused is sent forward for trial. However, since the Prosecution of Offences Act, 1974, which created the Office of the Director of Public Pros ecutions, the consent of the Attorney General is only required in a limited number of cases, for example, genocide, treason and offences under fisheries legislation. In discussions with the Office of the Director of Public Prosecutions and the Office of the Attorney General about the terms of the Bill, it was felt that the definition of the prosecutor should make it clear that this would only be taken as a reference to the Attorney General in those cases where a prosecution role for the Attorney General was preserved. As a result, these amendments make it clear that reference to the Attorney General relates solely to those offences where the consent of the Attorney General is still required.
Amendments Nos. 2, 3, 4 and 5 are amendments to section 8 of the Bill which defines "the prosecutor" for the purposes of Part III. They provide, in essence, that reference to the prosecutor shall not be taken to be a reference to the Attorney General except in relation to offences where the consent of the Attorney General is still required before such proceedings are instituted or continued. Amendments 6, 7, 8, 20, 21 and 25 are consequential and substitute the words "the prosecutor" in place of reference to the Director of Public Prosecutions, the Attorney General or the prosecution where they appear in Part III.
Amendments Nos. 9, 10, 11, 12, 13, 14, 18, 24 and 28 involve changes to the new procedures which it is intended will be put in place following the abolition of preliminary examinations. These follow on from detailed consultations the Minister had with practitioners in the field.
As the Bill stood after its consideration by this House, the new procedure provided that after a person had been sent forward for trial, the trial court, usually the Circuit Court, would hear all subsequent applications, with the exception of applications for the taking of depositions which would continue to be made in the District Court. It was represented to the Minister that some aspects of the new procedures might have had the potential to cause delay or confusion. As the Circuit Court sits in fewer locations than the District Court, all those concerned with a particular case may have had to undertake additional travel to court venues for remand hearings. In addition, if applications for the taking of depositions were to be made to the District Court it was possible that more than one court would have had seisin of a case at any one time. Furthermore, since the District Court judge would not have seen the book of evidence in advance of any application for the taking of depositions, the judge might either have had to accede to all such applications or take time to read the book of evidence before deciding whether to grant the application.
Concern had been expressed to the Minister about the operation of these aspects of the new procedures as a result of which the Minister proposed a number of amendments in the other House to Part III of the Bill to remedy the situation. The amendments will mean that the District Court will continue to deal with remand hearings until such time as the book of evidence is served. When the book of evidence is served on the accused, the District Court will send him or her forward to the trial court in accordance with section 4A of the new procedure.
With regard to the taking of depositions, the effect will be that an application for the taking of depositions will be made to the trial court. It will consider the application and will direct which witnesses are to give evidence by sworn deposition. It will then remit the case to the District Court where the sworn deposition will be taken. This will enable the trial court to maintain control of the proceedings once the accused has been sent forward.
Amendments Nos. 19, 22 and 27 are technical drafting amendments. Amendment No. 23 clarifies the relationship between the new Part IA of the Criminal Procedure Act, 1967, and the television link provisions of the Criminal Evidence Act, 1992. Section 13 of the 1992 Act permits evidence to be given through a live television link in proceedings for sexual and violent offences. Clearly, it must be the case that a witness entitled to give evidence through a live television link at trial should be equally entitled to do so at hearings prior to trial, namely hearings under sections 4E – application for dismissal of charge – and 4F – taking of depositions in District Court – which are being inserted by this Bill into the Criminal Procedure Act, 1967. This amendment simply makes clear that this is intended by specifying that the word "proceedings" in section 13 of the 1992 Act includes proceedings under sections 4E and 4F.
Amendment No. 29 addresses a technical difficulty which has come to light with section 15 of the Offences against the State (Amendment) Act. That section was intended to provide for unlimited fines to be available as a sanction to the courts in relation to the major offences of possession of firearms or explosives. However, an erroneous technical reference was made in subsection (3) of section 15 where it purports to substitute in section 3 of the Explosive Substances Act, 1883, a penalty of "a fine or imprisonment for life or both" for "imprisonment for life". Section 3 of the 1883 Act does not in fact refer to a penalty of imprisonment for life; the actual penalty provided is for a period of imprisonment not exceeding 20 years. This amendment corrects the reference to the penalty under section 3 of the 1883 Act. Obviously, the amendment does not affect the substance of what we sought to achieve in section 15 of the 1998 Act.
Amendment No. 30 fulfills a commitment which the Minister gave during the passage of the Offences against the State (Amendment) Act, 1998, to meet concerns which had been expressed that an amendment the Minister had already made had not given full effect to the desire of Fine Gael that if provisions of the Act were to be renewed they would be subject to an annual review. The effect of the proposed amendment is that no resolution passed renewing the legislation would be for a period longer than 12 months, although further renewals of periods less than 12 months would be permissible.
Amendment No. 31 inserts a new section 39 in the Bill. The proposed new section 39 provides that in any proceedings on indictment, the court may give leave for a person other than the accused to give evidence through a live television link if it is satisfied that the witness is likely otherwise to be in fear of or subject to intimidation.
Currently, only witnesses in trials of sexual offences and offences involving violence can give evidence through the television link. However, I am sure all of us in this House could imagine circumstances where, for example, a witness in the trial of a major drug trafficking offence might be frightened or subject to intimidation, yet in the absence of actual violence such a witness could not, under existing law, be permitted to give evidence through a live television link. The Minister believes that the capacity to give evidence through a live television link should be available to such witnesses. It is not the type of offence on trial that matters but the existence of genuine fear or intimidation on the part of the witness.
The amendment, therefore, will permit any person in criminal proceedings on indictment, other than the accused, who is in fear of or subject to intimidation to give evidence through a live television link, with the leave of the court. In granting leave, the court will have to be satisfied that the witness would be in fear of or subject to intimidation in giving evidence in open court.
The Minister proposed that the provision will apply not only to trials on indictment but to any appearance by a witness under the new procedures which, under the Bill, are to replace the preliminary examination. It could be that a witness might be required to give evidence in the District Court by way of deposition or on an application by the accused for a dismissal of charges. Clearly, a witness could be as frightened or intimidated at such a hearing as at the trial itself, and it follows that the potential for giving evidence through a live television link should equally apply.
The new section 39 does not affect the Criminal Evidence Act. The new section 39 will complement the 1992 Act, not replace it, as the provisions in that Act relating to live television links contain specific provision in relation to children and young persons.
Amendments Nos. 15, 16, 17 and 26 are consequential amendments.
Amendment No. 32 inserts a new section 49 in the Bill concerning the witness protection pro gramme. The witness protection programme, which is operated by the Garda Síochána, plays a vital role in ensuring that the course of justice is not perverted by those who, through violence or threats of violence, seek to suppress vital evidence in major trials through the intimidation of witnesses, whether by threatening or harming witnesses prior to testifying, or by threatening retribution afterwards.
This amendment, which the Minister prepared in close consultation with the Garda Síochána, will provide legislative backing for the protection afforded by the programme to witnesses and will significantly enhance its effectiveness.
The new section 40 will make it an offence for any person, without lawful authority, to try to identify the whereabouts or any new identity of a witness who has been relocated under the programme. The maximum penalty for an offence under the proposed new section is five years imprisonment or a fine, or both.
Amendment No. 33 inserts a new section 41 in the Bill making it an offence for a person to intimidate witnesses, jurors and persons helping gardaí with a criminal investigation, with the intention of causing the course of justice or the investigation to be obstructed, perverted or interfered with.
This is a measure to which the Minister attaches special importance. Concerns have been expressed in the recent past, which are taken seriously, that a potential for the intimidation of witnesses in certain criminal proceedings exists. While we should be careful not to get this out of proportion and raise unjustified fears, the idea of such intimidation, no matter how infrequent the occurrence, is completely unacceptable.
The intimidation of witnesses would, under existing law, constitute contempt of court and would be punishable by the courts. That will remain the case. The Minister believes, however, that there are significant additional advantages in the creation of the offence under this new section. First, it enables this House to define the scope of the offence and gives it an opportunity to expand the offence beyond the boundaries of contempt of court. The offence will cover not only witnesses but potential witnesses, jurors and potential jurors, and persons helping the gardaí with their criminal investigations.
Second, it enables this House to determine the penalty appropriate to the offence. The Minister proposed a maximum penalty of ten years imprisonment in order to reflect the seriousness of the offence. Third, creating a statutory offence enables the Oireachtas to consider whether it is desirable to make special evidential provision for the proof of the offence. The Minister believes it is desirable to make such provision. The offence will consist not only of harming or intimidating witnesses, jurors and persons assisting the gardaí with a criminal investigation, which would be an offence already, but of doing so with the intention of causing the course of justice or the investigation to be obstructed, perverted or interfered with. Clearly, difficulties could arise in proving that an act was done with this intention. That is the reason the Minister proposed that proof of an act of harm or intimidation against a person protected by the provision will be evidence that the act was done with the necessary intention. It will not be conclusive evidence, and it will be open to the accused to challenge the evidence or to adduce his or her own evidence. Nor will it in any way remove from the prosecution the duty of proving guilt beyond a reasonable doubt. Nevertheless, it will be evidence and it will ensure that an accused cannot simply rely on feigning ignorance that the victim was a witness or juror, or was helping the gardaí with a criminal investigation. This evidential provision is robust but the Minister believes it is justified both by the seriousness of the offence and by the difficulties of proof inherent in it.
The Minister also proposed that the offence should apply to the families of those primarily protected by the provision, and he is giving a wide definition to "families". It will extend beyond relations to, for example, co-habitees.
As I said at the outset, it is important that we keep this in proportion and that we do not cause needless anxiety by exaggerating the scale of the problem, but it is equally important that the law should treat with severity any attempt to interfere with witnesses, jurors or persons helping the gardaí with criminal investigations. This is an opportunity to amend the law to that effect.
Amendment No. 34 inserts a new section 42 in the Bill dealing with the investigation of offences by prisoners. The background to the proposal is that in early 1998, the Minister established an expert group to consider changes in the criminal law recommended in the Report of the Steering Group on the Efficiency and Effectiveness of the Garda Síochána. Among the recommendations of the steering group was one relating to the power of detention. The report identified as a deficiency in the existing law the fact that, currently, a person either on remand or serving a sentence cannot be arrested and detained in a Garda station for the investigation of other offences. This, the report stated, hinders investigation. It recommended that if a person is in custody, on remand or serving a sentence for other offences, it should not preclude a proper investigation of a particular crime and there should be a procedure whereby such person can be arrested or detained and the crime investigated as if he or she were not already in custody. Having considered this recommendation, the expert group formulated a proposal to address the issue and that proposal forms the basis for the amendment.
Existing powers of detention subsequent upon arrest are contained in the Offences Against the State Act, 1939, the Criminal Justice Act, 1984, and the Criminal Justice (Drug Trafficking) Act, 1996. Those powers are defined by reference to offences. It is nowhere explicitly stated that statutory powers of arrest and detention cannot be exercised in relation to someone in prison. In practice, however, it has been accepted that they do not, as otherwise those powers could be exercised to negate the court order on which a person's imprisonment is grounded, and it is difficult to see how this could be the case without a specific statutory provision allowing it.
The current prison rules allow for visits by the gardaí to prisoners, in certain circumstances. Such visits, however, can only take place if the prisoner agrees to meet with the gardaí. Clearly, this could hinder the proper investigation of an offence. Under the Criminal Justice (Forensic Evidence) Act, 1990, there is provision for taking samples from a person in prison for the purpose of forensic testing. This applies only where the offence is an offence other than that for which he or she is in prison and only in respect of offences under the Offences Against the State Act, 1939, an offence scheduled for the purpose of Part V of that Act or an offence to which section 4 of the Criminal Justice Act, 1984, applies.
A key question is how any power of detention should be authorised in relation to someone who is imprisoned. Given the particular circumstances surrounding a person already in custody, it is considered essential that there should be a judicial involvement in authorising the detention, not least because any arrest and detention would have the effect of temporarily over-riding an existing court order. The new section provides that a garda may arrest a prisoner on the authority of a judge of the District Court. Before issuing the authority the judge must be satisfied by information on oath by a senior Garda officer of a number of matters, namely, that there are reasonable grounds for suspecting that the prisoner has committed an offence other than the offence, for which he is in prison, that the arrest is necessary for the proper investigation of that offence and that, where the prisoner had previously been arrested for that offence, further relevant information had come to light since then.
The arrested prisoner shall be taken to a Garda station and be detained there for the periods authorised under the Criminal Justice Act, 1984, and will be dealt with in the same manner as a person detained under that Act. Provision is also made for the ending of the detention where there are no longer reasonable grounds for it. On termination of the detention the person will be returned to the custody of the governor of the prison where he was imprisoned at the time of arrest.
The Minister believes that this new section is a necessary addition to the powers of the Garda Síochána for the investigation of serious offences. He intends to bring forward further legislative proposals in the future arising from the report of the expert group. These proposals will be dealt with in a separate Bill.
Many of the amendments to which I have referred would be outside the Long Title of the Bill as it stands. Accordingly, amendment No. 35 provides for an amendment of the Long Title to permit the inclusion in the Bill of the important new provisions which I have outlined.
Because of the importance of the Bill I have gone into considerable detail in relation to these amendments. The Minister believes that they improve the Bill and I hope they are acceptable to the House.
I am impressed by the change in the legislation with regard to the television link from the type of offence to the fear of intimidation. This is a sensible and rational change and I am surprised that we did not see it in the first instance.
Can the Minister of State clarify who makes the decision if a witness wishes to give evidence via a television link? How will that decision be made? I notice that many of the amendments were in the name of the late Deputy Pat Upton. This is a reminder of how much work he put into this Bill and we now have the opportunity to participate in his work. I also notice that this is a 1997 Bill. I am surprised that it has taken so long to process. I congratulate the Minister on getting it through.
A couple of years ago I would not have thought that we needed this legislation. However, I got to know Veronica Guerin just a few weeks before she died. That event gave rise to much legislation and spurred this House into getting this Bill through. I now understand much of what the Minister is including in legislation. However, I want to ensure that we also protect the innocent. From what has been said in the House, I hope that the creation of an offence of intention to intimidate, as opposed to actual intimidation, is not open to abuse. The Minister of State has explained this well but I wish to have my mind put at rest.
The decision with regard to the taking of evidence via a television link will be taken by the judge. I join Senator Quinn in paying tribute to the work of the late Deputy Pat Upton on this legislation. We also remember people such as Veronica Guerin and others as we pass important legislation such as this which should make a difference to society.
Question put and agreed to.
Question proposed: "That the Bill do now pass."
I thank the Minister of State for giving the House a full and detailed briefing on the amendments. I am glad that this important Bill has reached its conclusion. I also thank the Opposition for its co-operation in the passing of the Bill.
I join the Senator in thanking the Minister of State for giving the House such a comprehensive briefing.
I have not previously heard as comprehensive a briefing as that given by the Minister of State. This Bill was initiated in the Seanad and has taken some time to be passed. It has been greatly improved by the extra work and I thank the Minister of State for her explanation. I congratulate the Minister of State and her officials.
I thank Senators for their comments. I also thank the staff of the Department for their hard work on this legislation. This Bill was initiated in the Seanad and much hard work has been done on it since. All Members of the Oireachtas can be satisfied that this fine legislation is being passed and I thank all involved.
Question put and agreed to.