I welcome the Minister for Justice, Equality and Law Reform, Deputy McDowell, and his officials to the meeting, the purpose of which is to resume our consideration of Committee Stage of the Criminal Justice Bill 2004. It is proposed that we will adjourn at 4.15 p.m. A new composite list of amendments has been published together with an additional list on white paper.
Criminal Justice Bill 2004: Committee Stage (Resumed).
NEW SECTIONS.
Debate resumed on amendment No. 174:
In page 25, before section 24, but in Part 4, to insert the following new section:
"PART 10
SENTENCING
97.—In this Part, unless the context otherwise requires—
"authorised person" means a person who is appointed in writing by the Minister, or a person who is one of a class of persons which is prescribed, to be an authorised person for the purposes of this Part;
"a direction" means a direction given by the Minister under section 2 of the Criminal Justice Act 1960 authorising the release of a person from prison (within the meaning of that section) for a temporary period;
"offender" means a person in respect of whom a restriction on movement order is, or may be, made undersection 100;
"probation and welfare officer" means a person appointed by the Minister to be—
(a) a probation officer,
(b) a welfare officer, or
(c) a probation and welfare officer;
"restriction on movement order" means an order made by a court undersection 100.”.
—(Minister for Justice, Equality and Law Reform).
This comprises an entire amendment from the Minister; it is an amendment to his previous amendment.
At the end of our last meeting we were discussing amendment No. 174. Amendments Nos. 174 to 188, inclusive, on sentencing will be discussed together by agreement.
We reached amendment No. 177. The next set of amendments, which comprises amendments Nos. 177 to 178, has two elements. It provides a legal basis for the imposition of restriction of movement orders and it provides for the electronic monitoring of offenders who are subject to such an order and offenders on temporary release. I propose that restriction of movement orders, which may be accompanied by electronic monitoring where appropriate, be available to the courts as an alternative sanction to imprisonment for certain minor offences. My proposals on the monitoring of those on temporary release will allow the Minister for Justice, Equality and Law Reformto impose a condition restricting the person's movements while on temporary release and allowing for the electronic monitoring of compliance with those conditions.
As a sentencing tool these orders will be available to a court where a person over the age of 18 has been convicted summarily of a scheduled offence and the court views that a sentence of three months or more is appropriate. This ensures that restriction of movement orders are not used in association with offences of a very minor nature which would incur only a short term of imprisonment. The scheduled offences are lesser public order and assault type offences. The circumstances in which these types of offences are generally committed makes them amenable to a sanction restricting the perpetrator's movements. The maximum length of an order imposed by a court would be six months and it would be possible to seek a variation order.
The orders may include a curfew element that requires a person to be in a particular place for a particular period, for example, his or her home during the hours of darkness. They may also include a prohibition element which would require a person not to be in a particular place for a particular period, for example, near a specific business premises.
The restriction of movement orders and the restriction of movement conditions for temporary release prisoners will require the consent of the offender and of the person residing in or in charge of the place or places concerned. This might be useful to, for example, the offender's parents if he or she resides at the family home because if one has to install equipment in their home, their wishes cannot be ignored.
A court will only be able to make a restriction of movement order if, having regarded the offender's circumstances, he or she is deemed suitable. The court may request a written report from a probation and welfare officer for that purpose. The specifics of the order will ensure that any educational programmes in which the offender might be engaged will not be hindered. This is necessary given that the aim of these orders is rehabilitation. It is with this in mind that I am providing that an offender may not be required to be in a particular place for more than 12 hours in any one day.
The proposed condition restricting an offender's movements while on temporary release is not limited in terms of types of offences or maximum duration. That proposal will dovetail with the existing provisions of the 1960 Act on granting temporary release to prisoners.
The proposals on electronic monitoring are enabling provisions and relate to the technical issues involved in the introduction of such a system. Provision is being made for the making of regulations concerning the type of electronic device that may be used and the monitoring arrangements. It is impossible to set out in statutory form exact specifications for that kind of equipment.
Regarding the amendments to the proposed amendments, the Labour Party's first amendment is to delete the term "summarily" in subsection (1). The current proposal is that restriction of movement orders are aimed at offenders convicted by the District Court of the offences in Schedule 3 and that they must have been convicted summarily. The effect of the amendment is to widen the scope to all convicted persons, which goes much further than I had intended. The proposal I made is adequate as it provides a satisfactory alternative means of dealing with relatively minor offenders. This would not be an appropriate way to deal with more serious offenders such as those convicted on indictment.
Deputy Jim O'Keeffe, in amendment No. 2, proposes to remove the provision that a person may not be required to be in any one place for more than 12 hours in a day from subsection (2). If this amendment were to be accepted a person could be confined to one place for a whole day which takes no account of ordinary requirements like going to college, work or to the shops. This amounts to house arrest. Such an arrangement would be seen as unreasonable and courts would not be happy to enforce it. There is a risk that the section would be struck down as unreasonable if this amendment were accepted and interpreted as meaning people could be subject to virtual house arrest.
Subsections (6) and (7) will give guidance to the court when it considers appropriate restrictions relating to times and places. These subsections are adequate and give nothing more than is required by way of guidance to the courts. Restriction of movement orders are alternatives to prison, are aimed at relatively minor offenders and are designed to facilitate rehabilitation.
Regarding the Labour Party amendment No. 3 and Deputy Jim O'Keeffe's amendment No. 4, my proposal states that a restriction of movement order may last for not more than six months. That proposal allows for orders over shorter periods; the six month limit applies where there are multiple orders — the sum of the periods may not exceed six months. I chose that period as I felt that a longer one would create new difficulties. As the likelihood of non-compliance increases the longer the period is, a relatively short period is likely to be more effective. I understand that amendment No. 3 is aimed at cases where the maximum sentence is three months. In such cases a six month restriction of movement order might seem at variance with the custodial option, however the text allows sufficient flexibility to the court and it may be the case that an offender would prefer a six month order, in any event, when compared to even a one month custodial sentence. This proposal targets relatively minor offences and the approach being adopted is satisfactory. Deputy Jim O'Keeffe's amendment No. 4 would remove any upper limit on the duration on the order and I have already give my reasons for setting an upper limit of six months.
In amendment No. 5, Deputy Jim O'Keeffe proposes to amend subsection (6) by replacing "is participating" with the term "ordinarily participates". I can see some differences between the two sets of wording and I would like to hear him on that subject.
Deputy Jim O'Keeffe also proposes a new subsection (12) in amendment No. 6 and it appears to deal with the same issue as subsection (11), that is, ensuring the person fully understands the implications of being subject to an order. Again, I would like to hear his views on that.
Deputy Jim O'Keeffe's amendment No. 7 to the amendment is technical in nature. In amendment No. 8 to the amendment, the Deputy is proposing to add to subsection (12) a new category of persons to which movement orders are to be sent, namely, any person as the court may deem appropriate. The subsection already provides that it must be sent to the offender, the Garda and those persons authorised with monitoring compliance. I am satisfied that this appears to be a complete list and I do not know who else he has in mind for broader notification.
Amendment No. 178 in my name inserts a new section 101 that provides for electronic monitoring on restriction of movement orders. It provides that where electronic monitoring of an order is proposed, the order shall include, first, a provision making an authorised person responsible for monitoring compliance and, second, a requirement that the offender have a device attached to him or her to enable compliance to be monitored. The device may be attached continuously or for specified periods.
In amendment No. 179, I propose to insert a new section 102 to provide that a court may vary an order on application by the offender, the owner or person habitually resident at the place specified in the order, the Garda or, where appropriate, the authorised person for the purpose of monitoring. The variation may substitute a place or a period of time for one already specified. In Deputy Jim O'Keeffe's amendment No. 1 to my amendment, he proposes to amend subsection (1), which lists the parties that may apply to have an order varied, and add a new category, namely, counsel for any of the parties already listed. Subject to what he may say, I do not think it is necessary to provide that it must be done in personam. Anybody is entitled to move a court in any direction, either personally or through a legal representative. The Law Society might not be keen on the term “counsel” as used there.
The matter came to my attention.
Amendment No 180 inserts a new section 103 — doubtless it was drafted by a solicitor — which makes provision in respect of more than one restriction on movement order. Subsection (1) states that where more than one restriction on movement order is in place, the cumulative period shall not exceed six months. It provides that where orders are imposed for two or more offences, they may be concurrent or consecutive, but not for more than six months in total, and that where a person is already subject to an order, a new order must be made. In the latter circumstances, the two orders may be concurrent or an addition to one another but may not run for more than six months in total.
Amendment No. 181, which deals with non-compliance with restriction on movement orders, provides that where, on application to a garda or a person authorised to monitor compliance with electronic equipment, the court considers that there has been a breach of the order, it may, where it is the court for the district in which the person resides, first, direct the person to comply, second, revoke the order or, third, revoke the order and deal with the case in any other way in which it could have been dealt with before the order was made. Where the court to which an application is made is not the one for the district in which the person resides, the first court may remand the person on bail to the court in the district where he or she resides.
Amendment No. 182 proposes to insert a new section in respect of the Criminal Justice Act 1951. The latter provides that cumulative sentences imposed by the District Court should not exceed two years. The maximum period of sentence for any single sentence is one year. This amendment provides that account should be taken of any period during which a restriction on movement order is in place when assessing if the maximum threshold of two years is being reached. In effect, it provides that an order is to be regarded as a sentence for the purpose of the 1951 Act. Deputy Jim O'Keeffe has tabled a number of amendments to amendment No. 182.
Amendment No. 183 is designed to give documentary evidence that evidence of being or not being in a place specified in the order may be given as a statement automatically produced by monitoring equipment and accompanied by a certificate from the person authorised to monitor the electronic monitoring equipment as to an offender's whereabouts at the time in question. If an offender is recorded as AWOL in the middle of the night, there is no need for someone to sit monitoring a screen.
Deputy Ó Snodaigh proposes to amend the section by deleting subsection (1A). He wants to exclude the possible use of electronic monitoring of compliance with a restriction of movement order. The use of electronic monitoring must remain an option and my intention is to provide a legal basis for its introduction. I have not yet generated plans for its immediate roll out, other than, perhaps, on a pilot basis. We should provide for its possible use and, therefore, I am not inclined to accept the Deputy's amendment.
I am aware that concerns have been expressed by, among others, the Irish Human Rights Commission regarding the cost-effectiveness of electronic monitoring compared to supervision by the probation and welfare service. Those concerned have also queried whether proportionality is present, given the interference entailed in electronic monitoring. I recognise these as valid concerns and they will be considered if electronic monitoring is introduced. For the moment, however, the Bill merely provides the basis on which we can move forward.
We must be mindful of a wider range of concerns including the alternatives — in many cases prison — and the need to protect the wider community. I would make the point to the Irish Human Rights Commission that it is true that this provision has implications for human rights in respect of freedom of movement. If however, the alternative is imprisonment that too, will have implications for freedom of movement and much more. Human rights do not apply only to the offender, members of the community also have such rights. There is a balance in respect of human rights that is at issue in these cases.
The purpose of amendment No. 184 is to insert a new section 107 on the temporary release of prisoners. Subsection (1) of the new section provides that a direction by the Minister for Justice, Equality and Law Reform to temporarily release a prisoner may be subject to a restriction of movement condition. The condition may be monitored electronically. Subsection (2) states that the restrictions may include provision that the person should or should not be in a particular place at particular times. Subsection (3) deals with the owner or occupier of a place where the person is to be at a particular time and that they must consent to that condition. Subsection (4) states that where electronic monitoring is provided for, the Minister's direction shall include provision for an authorised person to monitor compliance. Subsection (5) states that the prisoner must agree to the condition, however, failure or refusal by the prisoner to agree does not confer any entitlement to temporary release on any other terms.
Deputy Ó Snodaigh's amendments No. 1 and 4 to amendment No. 184 seek to remove the possibility of electronic monitoring of compliance. I do not accept that proposition, as is clear from what I have already said. Deputy Jim O'Keeffe proposes to amend subsection (2) by providing that a person may not be required to be in one place for more than 12 hours, save in exceptional circumstances. That issue has been discussed already.
Amendment No. 5 to the amendment was tabled by both Labour and Fine Gael and proposes to delete the new subsection (5). This subsection requires the prisoner to accept the condition of the monitoring of movement, but refusal to accept the condition does not confer any entitlement to release. This refers to people in custody under consideration for temporary release. The Minister is entitled to attach conditions to that release in the interest of public safety and does so under existing arrangements. If the amendment is accepted, we will, in effect, give prisoners the option of accepting or rejecting any conditions. It amounts to giving prisoners a veto on the conditions under which they are released.
The purpose of amendment No. 185 is the insertion of a new section 108, which provides for the 1960 Act to operate on the basis of documentary evidence concerning breach of conditions of temporary release. Amendment No. 186 adds to the provisions of the 1960 Act whereby conditions may be attached to temporary release and extends it to the provisions of this piece of legislation. Amendment No. 187 will allow the Minister to make regulations on the type of devices to be used and on the conditions of temporary release. Amendment No. 188 allows the Minister to make arrangements, including those of a contractual nature, for the monitoring of compliance with restriction of movement orders, temporary release conditions or both.
It is helpful to have an overview. I am generally supportive of the provisions that have been outlined. From a practical point of view, should we discuss each amendment separately? What does the Minister believe is the best approach?
I would prefer to have a quick discussion on a few of the principal issues and then go through the amendments.
When Deputies say we will go through the individual amendments——
Rather than have a general debate, I am of the view that we should go through each amendment. However, my colleague, Deputy Howlin, suggests that he would like to make some brief general comments.
That is fine. We will then return to Deputy Jim O'Keeffe and go through all of the amendments.
I agree with that suggestion. Perhaps I could also make some brief general comments.
There are a few general issues that arise. Restriction of movement orders are not new. However, electronic monitoring is new. There are refinements we can make in respect of restriction of movement orders. The Minister has rightly captured the idea of a restriction of movement order as being a sentence and, for the purpose of calculating the maximum sentence, it would be calculated as such because that would be fair and real.
There are individual issues such as the notion of confining people to an unreasonable place for an unreasonable period, a matter we can tease out in detail. I want now to tease out the issue of restriction of movement orders versus custodial sentences. My fear is not that they would not be used but that they would be used too regularly because they would not be perceived by the courts as representing custodial sentences when, in fact, that is their very nature. Such orders are similar to the restriction orders, under which people were not allowed to leave their homes, that obtained in the past in South Africa. They should not be used overmuch. I would be much happier with a restriction order that kept people away from places of danger, places where they have done injury to others or places where they might previously have intimidated individuals. That is less of a trampling on people's rights than, for example, a requirement for them to be at home for long periods, which is a different kettle of fish.
I wish to ask two questions. How does the Minister intend to convey to the Judiciary that this type of sentence has implications for and restricts an individual's freedom of movement, a freedom which is very important and cannot be upset without very serious cause? My second question relates to the use of electronic tagging and the data that will become available as a result. Obviously, there will not be an individual watching a screen day and night but there will clearly be an established pattern of movement that might throw up matters that have nothing to do with the criminal justice system but that might involve social or personal issues for the individuals concerned. What safeguards does the Minister propose to introduce to ensure that an individual's movements will be monitored for the sole purpose of preventing the commission of a crime or for restriction, as authorised by a court?
In regard to educating the Judiciary, this is an enabling provision. If a Minister comes forward with an implementation programme, it will probably be a pilot programme that will be extended by degrees. Restriction of movement is fairly easy to effect. Electronic tagging will require specialised resources to be applied. It will require quite a degree of education not only of the Judiciary but also of the legal community, the Department, the probation and welfare service and many others before the regulations can be rolled out as an effective system. It will not just be made available one morning for everybody to make what they can of it.
On the issue of privacy, I agree with Deputy Howlin that it would be wrong if people carrying out surveillance used it for their own private purposes. However, I do not want to be overly restrictive in regard to its potential use. If somebody who was subject to a restriction of movement order and was electronically tagged for a public order offence and gave alibi evidence that he or she had been at home all night, I would not want potential use of surveillance to be so narrowly confined that it could not be used to establish that the person was lying.
One would have to be particularly stupid.
Some people are that stupid.
In England and Wales, valuations have been conducted and there was a gross figure of £36.7 million for the home detention curfew scheme over the first year.
Is that sterling?
Yes. The average period spent on home detention was 45 days at a cost of £1,300 per curfew. That amounts to £880 per month. It was thought that this contributed to a resource saving when compared to the cost of keeping people in prison, which amounted to £63.4 million in a year. The scheme was estimated as having a net effect of potentially reducing the prison population by 1,950 prison places over the first 12 months of its operation. The British Exchequer calculated that it had made a profit by its introduction of £36.7 million. I hope nobody will take offence at this, but I would take that with a grain of salt. How do we know that in every case a prison sentence would definitely have been handed down and that all such sentences would have been served? It is a notional calculation.
How long has it been in operation in the UK?
I will have to check. It has been in operation for some time. It was introduced in Canada in 1984 and in the UK in 1999.
Are recidivism rates available for Canada or the UK? Are they greater or less than those relating to custodial sentences?
I know from listening to BBC Radio 4 that a fair number of crimes were committed by people who were under the supervision of the probation service in the UK. I presume the same applies in this instance. Since the commencement of the country-wide programmes in 1999, it has been used most frequently in respect of the home detention curfew, that is, early release from prison. Of the 201,960 offenders who have been made subject to electronic monitoring, 111,000, or 55%, were the subject of early release and a further 30% were the subject of adult curfew orders issued by the courts. I can supply the Deputies opposite with these figures.
They can be circulated.
It is not a cost-free measure. It is not a case of paying €5 a month for monitoring. A total of £880 per month per case means that there is a considerable resource implication. One certainly would not want a District Court judge making such orders on a random basis every time the thought occurred to him or her.
Judges would have to be given quotas.
Or they could be given a budget.
I call Deputy Ó Snodaigh to make some general points. I will then call Deputy Jim O'Keeffe to speak on the amendments.
I have a copy of a press release relating to a report, Electronically Monitored Curfew Orders: Time for a Review, which was published last year. This report was produced in the UK by the National Association of Probation Officers, NAPO. The latter found that tagging offenders costs twice as much as supervision by a member of the probation service and that even though not keeping an offender in prison saves money, more would probably be saved if the probation service were properly funded. That is one of the major criticisms of the system here.
That assumes that a probation officer would be in a position to know a person's whereabouts at 4 a.m.
The success of the probation and welfare system has long been championed for its success in ensuring that some people do not reoffend. It is obviously not totally successful, but neither is the prison system.
One of the other findings of the UK report is that electronic monitoring does not reduce reoffending. The private security companies that administer electronic schemes do not routinely follow up violations by individual offenders. The UK Government pays private tagging companies approximately three times the cost for each offender monitored. If the state authorities in the UK ran the system, it might be cheaper than outsourcing it. We do not know that for definite because the Minister has not produced a regulation dealing with the practicalities of that. The biggest problem I have with this is that we do not know what the practicalities are, namely, who will run the system and how many orders will be made. As the Minister stated, some District Court judges might think the system is the greatest thing since sliced bread and overuse it. That is not the reason it is being introduced. It is meant to be an addition to the existing system. My preference would be to properly fund the probation and welfare service in the first instance. If, having done that, problems remain, we could then examine the use of electronic tagging. We are discussing the matter, but most Deputies do not understand how it works, what is involved, whether there are ways in which the system can be evaded or whether it is foolproof. If we going to invest a great deal of money, time and effort into something, we want to ensure that it will work.
We would be obliged to smart-proof it.
If, after the passage of this Bill, we are dependent on regulations in respect of which we do not have a say, we need some detail regarding those regulations and the practicalities of how the system will work. We will also require some information regarding outsourcing so that when the Minister decides to test the system in the future we will know where we stand. The Minister has obviously delved deep into this and has some pilot schemes planned in the event of the Bill being passed. More detail is required. That is the reason for some of my amendments. I could go through them, but the Minister already outlined their content.
I wish to make a few general points. This will save me the bother of repeating them when we come to deal with the individual amendments I have tabled. I am very much in favour of the idea of restriction of movement supported and monitored by electronic tagging. I see it as an instrument available to the courts. I do not see it as a restriction on civil liberties. The greatest restriction on civil liberty is placing somebody in custody. I see electronic tagging as an option that can be availed of to avoid placing somebody in custody in order that they can, in general, remain free but subject to certain controls. In that context, I see it as having a substantial role to play.
I have read up on the experience in Canada, New South Wales, the United Kingdom and elsewhere. I accept it is not a perfect system but it has major advantages if a court decides that somebody needs to be restricted but that it is not in his or her interests to be put in prison. Putting young people in prison often does more harm than good. However, such persons must be made to accept responsibility for their misdeeds and encouraged to follow a straighter path. I do not see electronic tagging as something that reduces recidivism but as an additional instrument available to the courts. We have it in respect of those convicted of an offence. I would like to see it available as an additional instrument for use by judges as a condition for the granting of bail if there are concerns regarding the commission of crime and so on. This is not provided for in the Bill, despite some reports to the contrary.
From the point of view of cost, I am not in the business of arguing the issue of public versus private. It would be inappropriate today, given that all the trains in the country have stopped. I have no ideological hang-ups in that regard. If a service can be publicly provided efficiently, that is fine with me. I say this as a regular user of trains.
On how electronic tagging is done in other countries, particularly the United Kingdom, it is generally outsourced. If there is a breach, there is notification to the police which then acts. I accept there is a substantial cost. In contrast, there is the cost of a prison place which can vary from €1,000 to €5,000 a week as against £880 sterling per month in the United Kingdom for electronic monitoring. That is the comparison that occurs to me. I very much support the introduction of the empowerment provisions from the point of view of both restriction of movement and the monitoring of same. I will be happy to go through the sections whenever the Minister wishes to do so.
To return to amendment No. 97, I have no problem in principle with the Minister's proposal. The amendment relates more to good order. There are definitions in the amendment and further definitions at the end of the section. I am advised that it would be more sensible to consolidate all of the definitions and put them all in one place at the beginning of the section. My amendment is merely a drafting proposal for the sake of good order. There is no more I need say about it. If the Minister wishes, he may leave it to the Parliamentary Counsel to have a look at it.
I am accepting that amendment.
: Which amendment is that?
Amendment No. 97 which proposes that the definitions be included in one section.
I asked the Minister of State about this issue during the passage of the International Criminal Court Bill. In any of the legislation I have examined "prison" is defined by naming prisons. Would a catch-all phrase such as "a place appointed by the Minister for Justice, Equality and Law Reform to be a detention centre as a place of imprisonment" be better than having to recite every place, sometimes including juvenile detention centres?
What was the answer on that occasion?
The Minister of State did not know.
This is not a definition; it is merely stated that it includes detention in St. Patrick's Institution and in what is generally referred to as an open prison. I agree with the Deputy; it would be preferable if the term always meant one thing. If it was stated, however, that it meant authorised by the Minister as a place of detention, Deputy Ó Snodaigh would ask where I would authorise next.
That is wise counsel.
What is the Deputy's address?
If the Minister accepts my amendments, we can conclude our discussion of this provision.
Please go through all of the amendments.
Why do we not deal with them?
We agreed to go through Part 4.
We have done that; should we not now deal with the amendments?
We will deal with them together, as the Minister did. Does the Deputy want to go through them one after the other?
Yes, we will pass them as we go along.
I move amendment No. 1 to amendment No. 174:
In section 97, after the definition of "a direction", to insert the following:
""governor" includes, in relation to a prisoner, a person for the time being performing the functions of governor;
"imprisonment" includes—
(a) detention in Saint Patrick’s Institution, and
(b) detention in a place provided under section 2 of the Prisons Act 1970, and “sentence of imprisonment” shall be construed accordingly;
"mandatory term of imprisonment" includes, in relation to an offence, a term of imprisonment imposed by a court under an enactment that provides that a person who is guilty of the offence concerned shall be liable to a term of imprisonment of not less than such term as is specified in the enactment;".
Amendment to amendment agreed to.
I move amendment No. 2 to amendment No. 174:
In section 97, after the definition of "probation and welfare officer", to insert the following:
""probation and welfare service" means those officers of the Minister assigned to perform functions in the part of the Department of State for which the Minister is responsible commonly known by that name.".
Amendment to amendment agreed to.
Amendment, as amended, agreed to.
I move amendment No. 175:
In page 25, before section 24, but in Part 4, to insert the following new section:
"98.—(1) Where a person is sentenced to a term of imprisonment (other than a mandatory term of imprisonment) by a court in respect of an offence, that court may make an order suspending the execution of the sentence in whole or in part, subject to the person entering into a recognisance to comply with the conditions of, or imposed in relation to, the order.
(2) It shall be a condition of an order under subsection (1) that the person in respect of whom the order is made keep the peace and be of good behaviour during—
(a) the period of suspension of the sentence concerned, or
(b) in the case of an order that suspends the sentence in part only, the period of imprisonment and the period of suspension of the sentence concerned, and that condition shall be specified in the order concerned.
(3) The court may, when making an order under subsection (1), impose such conditions in relation to the order as the court considers—
(a) appropriate having regard to the nature of the offence, and
(b) will reduce the likelihood of the person in respect of whom the order is made committing any other offence, and any condition imposed in accordance with this subsection shall be specified in that order.
(4) In addition to any condition imposed under subsection (3), the court may, when making an order under subsection (1) consisting of the suspension in part of a sentence of imprisonment or upon an application under subsection (6), impose any one or more of the following conditions in relation to that order or the order referred to in the said subsection (6), as the case may be:
(a) that the person cooperate with the probation and welfare service to the extent specified by the court for the purpose of his or her rehabilitation and the protection of the public,
(b) that the person undergo such—
(i) treatment for drug, alcohol or other substance addiction,
(ii) course of education, training or therapy,
(iii) psychological counselling or other treatment, as may be approved by the court,
(c) that the person be subject to the supervision of the probation and welfare service.
(5) A condition (other than a condition imposed, upon an application under subsection (6), after the making of the order concerned) imposed under subsection (4) shall be specified in the order concerned.
(6) A probation and welfare officer may, at any time before the expiration of a sentence of a court to which an order under subsection (1) consisting of the suspension of a sentence in part applies, apply to the court for the imposition of any of the conditions referred to in subsection (4) in relation to the order.
(7) Where a court makes an order under this section, it shall cause a copy of the order to be given to—
(a) the Garda Síochána, or
(b) in the case of an order consisting of the suspension of a sentence in part only, the governor of the prison to which the person is committed and the Garda Síochána.
(8) Where a court has made an order under subsection (1) and imposes conditions under subsection (4) upon an application under subsection (6), it shall cause a copy of the order and conditions to be given to—
(a) the probation and welfare service, and
(b) (i) the Garda Síochána, or
(ii) in the case of an order consisting of the suspension of a sentence in part only, the governor of the prison to which the person is committed and the Garda Síochána.
(9) Where a person to whom an order under subsection (1) applies is, during the period of suspension of the sentence concerned, convicted of an offence, the court before which proceedings for the offence were brought shall, after imposing sentence for that offence, remand the person in custody or on bail to the next sitting of the court that made the said order.
(10) A court to which a person has been remanded under subsection (9) shall revoke the order under subsection (1) unless it considers that the revocation of that order would be unjust in all the circumstances of the case, and where the court revokes that order, the person shall be required to serve the entire of the sentence of imprisonment originally imposed by the court, or such part of the sentence as the court considers just having regard to all of the circumstances of the case, less any period of that sentence already served in prison and any period spent in custody (other than a period during which the person was serving a sentence of imprisonment in respect of an offence referred to in subsection (9)) pending the revocation of the said order.
(11) (a) A sentence (other than a sentence consisting of imprisonment for life)
(i) in respect of an offence committed by a person to whom an order under subsection (1) applies, and
(ii) during the period of suspension of sentence to which that order applies,
shall not commence until the expiration of any period of imprisonment that the person is required to serve of the sentence referred to in paragraph (b) either by virtue of the order under subsection (1) or a revocation under subsection (10).
(b) This subsection shall not affect the operation of section 5 of the Criminal Justice Act 1951.
(12) Where an order under subsection (1) is revoked in accordance with this section, the person to whom the order applied may appeal against the revocation to such court as would have jurisdiction to hear an appeal against any conviction of, or sentence imposed on, a person for an offence by the court that revoked that order.
(13) Where a member of the Garda Síochána or, as the case may be, the governor of the prison to which a person was committed has reasonable grounds for believing that a person to whom an order under this section applies has contravened the condition referred to in subsection (2) he or she may apply to the court to fix a date for the hearing of an application for an order revoking the order under subsection (1).
(14) A probation and welfare officer may, if he or she has reasonable grounds for believing that a person to whom an order under subsection (1) applies has contravened a condition imposed under subsection (3) or (4), apply to the court to fix a date for the hearing of an application for an order revoking the order under subsection (1).
(15) Where the court fixes a date for the hearing of an application referred to in subsection (13) or (14), it shall, by notice in writing, so inform the person in respect of whom the application will be made, or where that person is in prison, the governor of the prison, and such notice shall require the person to appear before it, or require the said governor to produce the person before it, on the date so fixed and at such time as is specified in the notice.
(16) If a person who is not in prison fails to appear before the court in accordance with a requirement contained in a notice under subsection (15), the court may issue a warrant for the arrest of the person.
(17) A court shall, where it is satisfied that a person to whom an order under subsection (1) applies has contravened a condition of the order, revoke the order unless it considers that in all of the circumstances of the case it would be unjust to so do, and where the court revokes that order, the person shall be required to serve the entire of the sentence originally imposed by the court, or such part of the sentence as the court considers just having regard to all of the circumstances of the case, less any period of that sentence already served in prison and any period spent in custody pending the revocation of the said order.
(18) A notice under subsection (15) shall be addressed to the person concerned by name, and may be given to the person in one of the following ways:
(a) by delivering it to the person;
(b) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address;
(c) by sending it by post in a prepaid registered letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address.
(19) This section shall not affect the operation of—
(a) section 2 of the Criminal Justice Act 1960 or Rule 38 of the Rules for the Government of Prisons 1947 (S.R. & O. No. 320 of 1947), or
(b) subsections (3G) and (3H) of section 27 of the Misuse of Drugs Act 1977.
(20) In this section—
"governor" includes, in relation to a prisoner, a person for the time being performing the functions of governor;
"imprisonment" includes—
(a) detention in Saint Patrick’s Institution, and
(b) detention in a place provided under section 2 of the Prisons Act 1970, and “sentence of imprisonment” shall be construed accordingly;
"mandatory term of imprisonment" includes, in relation to an offence, a term of imprisonment imposed by a court under an enactment that provides that a person who is guilty of the offence concerned shall be liable to a term of imprisonment of not less than such term as is specified in the enactment;
"probation and welfare service" means those officers of the Minister assigned to perform functions in the part of the Department of State for which the Minister is responsible commonly known by that name.".
I move amendment No. 1 to amendment No. 175:
In section 98, after "98.—" to insert the following:
"Any Ministerial regulations arising from this Part shall require the approval of both Houses of the Oireachtas.".
I have mentioned this matter before. New concepts are being introduced in justice legislation but we do not get the details until after the fact. It is not beyond the ability of the Houses of the Oireachtas to deal with ministerial regulations. Those requiring scrutiny could be dealt with, while those requiring minor amendments in regulations could be quickly addressed. The Sub-Committee on European Scrutiny of the Joint Committee on European Affairs examines a large amount of legislation. Advisers look at the material put before the sub-committee and take decisions as to whether it requires more detailed examination. The Dáil or Seanad can refer material to a committee without debate. The Opposition will always complain but at least the committee system can examine it. I try to introduce a standard amendment on this issue in most justice legislation.
Amendment to amendment put and declared lost.
I move amendment No. 2 to amendment No. 175:
In section 98(4), after "conditions" to insert ", or such other conditions as the court may deem appropriate,".
This touches on section 98(4), the power of the court to attach one or more conditions to the order for suspension it is making. The amendment suggests we should allow the court to attach one or more conditions or such conditions as it may deem appropriate. To a degree section 98(4) is subordinate to section 98(3) which provides the general power. I am not overly impressed with my own amendment.
I agree.
We have referred to all of these amendments already.
I do not want to press the amendment; I just want to raise the issue covered by it.
Amendment to amendment, by leave, withdrawn.
Amendment No. 3 to amendment No. 175 refers to section 98(6) which reads "a probation and welfare officer may, any time before the expiration of a sentence of a court to which an order under subsection (1) consisting of the suspension of a sentence in part applies, apply to the court for the imposition of any of the conditions referred to in subsection (4)." To a degree, it is consequential on such other conditions as he or she may feel appropriate. It does not have huge merit; I just put it forward for consideration by the Parliamentary Counsel.
Amendments Nos. 3 to 9, inclusive, to amendment No. 175 not moved.
I move amendment No. 10 to amendment No. 175:
In section 98(9), to delete "or on bail".
Amendments Nos. 4 to 13 to amendment No. 175 are technical, except amendment No. 10 which deals with a situation where "the person to whom an order during the period of suspension of the sentence concerned, convicted of an offence, the court before which proceedings for the offence were brought shall, after imposing sentence for that offence, remand the person in custody or on bail to the next sitting of the court that made the said order". Why should the court in that situation remand someone on bail if he or she has a prison sentence that has been suspended on condition of good behaviour? During the term of the suspension there has been an additional offence with a conviction as a result. In that situation is it appropriate to think about granting bail to the accused person?
I expressed the view that if a person was to be mandatorily remanded in custody, a situation could arise where a person with a ten year suspended sentence for a sexual offence who is charged with a minor offence such as urinating in public or driving across a white line, if he or she is found guilty in such cases, would instantly be deprived of his or her liberty and sent off to some other court in custody for a determination. That might be seen as an unreasonable obligation inappropriate to the seriousness of the second offence. It is for this reason that we are wary of it.
I will consider the issue further and we can revert to it on Report Stage. I will withdraw the amendment for now.
Amendment to amendment, by leave, withdrawn.
Amendments Nos. 11 and 12 to amendment No. 175 not moved.
I move amendment No. 13 to amendment No. 175:
In section 98, to delete subsection (20).
Amendment to amendment agreed to.
Amendment, as amended, agreed to.
I move amendment No. 176:
In page 25, before section 24, but in Part 4, to insert the following new section:
99.—(1) Where a person is convicted of an offence and is liable to both a term of imprisonment and a fine in respect of that offence, the court by which he or she was convicted may, subject to subsection (2)—
(a) impose a fine on that person in respect of the offence, and
(b) make an order—
(i) deferring the passing of a sentence of imprisonment for the offence,
and
(ii) specifying the term of imprisonment that it would propose to impose on the person in respect of that offence should he or she fail or refuse to comply with the conditions specified in the order.
(2) A court shall not perform functions under subsection (1) unless it is satisfied that—
(a) the person concerned consents to the sentence of imprisonment being deferred,
(b) the person gives an undertaking to comply with any conditions specified in an order made under subsection (1)(b), and
(c) having regard to the nature of the offence concerned and all of the circumstances of the case, it would be in the interests of justice to so do.
(3) An order under subsection (1)(b) shall specify—
(a) the date (in this section referred to as the “specified date”) on which it proposes to pass sentence should the person contravene a condition of the order, being a date that falls not later than 6 months after the making of the order, and
(b) the conditions with which the person concerned is to comply during the period between the making of the order and the specified date, including a condition that the person be of good behaviour and keep the peace.
(4) Where a court makes an order under subsection (1)(b), it shall cause a copy of the order to be given to the person in respect of whom it is made and the Garda Síochána.
(5) A court that has made an order under subsection (1)(b) shall not later than one month before the specified date require the person in respect of whom the order was made, by notice, to attend a sitting of the court on that date and at such time as is specified in the notice.
(6) If a person fails to comply with a requirement in a notice under subsection (5), the court may issue a warrant for the arrest of that person.
(7) Where a member of the Garda Síochána has reasonable grounds for believing that a person to whom an order under subsection (1)(b) applies has contravened a condition of the order, he or she may apply to the court to fix a date for the hearing of an application for an order imposing the term of imprisonment specified in the order in accordance with subsection (1)(b)(ii).
(8) Where the court fixes a date for the hearing of an application referred to in subsection (7), it shall, by notice in writing, so inform the person in respect of whom the application will be made, and such notice shall require the person to appear before it on the date so fixed and at such time as is specified in the notice.
(9) If a person fails to appear before the court in accordance with a requirement contained in a notice under subsection (8), the court may issue a warrant for the arrest of the person.
(10) Upon an application by a member of the Garda Síochána for an order imposing the term of imprisonment specified in accordance with paragraph (b)(ii) of subsection (1), a court may, if it is satisfied that the person in respect of whom the application was made has contravened a condition specified in the order under that subsection, impose the term of imprisonment that it proposed to impose at the time of the making of the order under that subsection (or such lesser term as it considers just in all of the circumstances of the case), unless it considers that it would in all the circumstances be unjust to so do.
(11) On the specified date the court shall, if it is satisfied that the person in respect of whom the order under subsection (1) was made has complied with the conditions specified in the order, not impose the sentence that it proposed to impose when making that order and shall discharge the person forthwith.
(12) On the specified date the court may, if it is satisfied that the person in respect of whom the order under subsection (1) was made has contravened a condition specified in the order, impose the term of imprisonment that it proposed to impose at the time of the making of the order (or such lesser term as it considers just in all of the circumstances of the case) unless it considers that in all of the circumstances of the case it would be unjust to so do, and where it considers that it would be unjust to impose a term of imprisonment it shall discharge the person forthwith.
(13) A notice under subsection (5) or (8) shall be addressed to the person concerned by name, and may be given to the person in one of the following ways:
(a) by delivering it to the person;
(b) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address;
(c) by sending it by post in a prepaid registered letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address.”.
I move amendment No. 1 to amendment No. 176:
In section 99(1)(b)(i), to delete “the passing of a sentence of imprisonment for”.
On the amendments to amendment No. 176, we are dealing with the imposition of fines and the referral of sentences. Further debate is required in respect of this section because certain issues remain to be clarified.
I intend to approach the Office of the Attorney General on foot of the conversation in which we engaged on this issue on the previous occasion. This cannot be done to a person who objects strongly; it would have to be done without prejudice to their right to appeal.
If the Minister intends to reconsider the position in conjunction with the Attorney General, we can return to it on Report Stage. I am concerned that, as currently formulated, the provision is not correct. There are aspects that need to be clarified.
Amendment to amendment, by leave withdrawn.
Amendments Nos. 2 to 6, inclusive, to amendment not moved.
Amendment agreed to.
I move amendment No. 177:
In page 25, before section 24, but in Part 4, to insert the following new section:
"100.—(1) Where a person aged 18 years or more is convicted summarily of an offence specified in Schedule 3 and the court which convicts him or her of the offence considers that it is appropriate to impose a sentence of imprisonment for a term of 3 months or more on the person in respect of the offence, it may, as an alternative to such a sentence, make an order under this section (“a restriction on movement order”) in respect of the person.
(2) A restriction on movement order may restrict the offender's movements to such extent as the court thinks fit and, without prejudice to the generality of the foregoing, may include provision—
(a) requiring the offender to be in such place or places as may be specified for such period or periods in each day or week as may be specified, or
(b) requiring the offender not to be in such place or places, or such class or classes of place or places, at such time or during such periods, as may be specified,
or both, but the court may not, under paragraph (a), require the offender to be in any place or places for a period or periods of more than 12 hours in any one day.
(3) A restriction on movement order may be made for any period of not more than 6 months and, during that period, the offender shall keep the peace and be of good behaviour.
(4) A restriction on movement order may specify such conditions as the court considers necessary for the purposes of ensuring that while the order is in force the offender will keep the peace and be of good behaviour and will not commit any further offences.
(5) A restriction on movement order shall specify the restrictions that are to apply to the offender's movements and, in particular, it shall specify—
(a) the period during which it is in force,
(b) the period or periods in each day or week during which the offender shall be in any specified place or places,
(c) the time at which, or the periods during which, the offender shall not be in any specified place or places or any class or classes of place or places.
(6) In determining for the purposes of subsection (2)(a) the period or periods during which the offender shall be in a specified place or places, the court shall have regard to the nature and circumstances of the offence of which the offender has been found guilty and any educational course, training, employment or other activity in which the offender is participating, and it shall ensure, as far as practicable, that that period or those periods do not conflict with the practice by the offender of his or her religion.
(7) In determining for the purpose of subsection (2)(b) the place or places, or class or classes of place or places, the time or the periods to be specified in a restriction on movement order, the court shall have regard to the nature and circumstances of the offence of which the offender has been found guilty, the time that the offender committed the offence, the place where the offence was committed and the likelihood of the offender committing another offence in the same or similar place or places or class or classes of place or places.
(8) A court shall not make a restriction on movement order in respect of an offender unless it considers, having regard to the offender and his or her circumstances, that he or she is a suitable person in respect of whom such an order may be made and, for that purpose, the court may request a probation and welfare officer to prepare a report in writing in relation to the offender.
(9) A restriction on movement order which restricts the movements of an offender in accordance with subsection (2)(a) shall not be made without the consent of the owner of, or any adult person habitually residing at, the place or places concerned or, as the case may be, the person in charge of the place or places concerned.
(10) A court making a restriction on movement order may include in the order a requirement that the restrictions on the offender's movements be monitored electronically in accordance with section 101, but it shall not include such a requirement unless it considers, having regard to the offender and his or her circumstances, that he or she is a suitable person in respect of whom such a requirement may be made and, for that purpose, the court may request an authorised person to prepare a report in writing in relation to the offender.
(11) Before making a restriction on movement order, the court shall explain to the offender in ordinary language—
(a) the effect of the order, including any requirement which is to be included in the order under section 101,
(b) the consequences which may follow any failure by the offender to comply with the requirements of the order, and
(c) that the court has power under section 102 to vary the order on the application of any person referred to in that section, and the court shall not make the order unless the offender agrees to comply with its requirements.
(12) The court shall cause certified copies of a restriction on movement order to be sent to—
(a) the offender,
(b) the member in charge of the Garda Síochána station for the area where the offender resides or, where appropriate, the area where he or she is to reside while the order is in force,
(c) where appropriate, an authorised person who is responsible under section 101 for monitoring the offender’s compliance with the order.”.
I move amendment No. 1 to amendment No. 177:
In subsection (1), to delete "summarily".
Amendment No. 1 to the amendment allows the courts flexibility. I am, however, persuaded by the Minister, who wants to be stricter than I. I thought that the flexibility of the courts in this matter should not be circumscribed in the way the Minister proposes. Is he wedded to the notion that his proposal is correct?
: Our aim is to restrict this to a small category of offences.
However, there might be occasions when the court would——
: I will re-examine the matter between now and Report Stage. Our purpose was, if something is serious enough to go on indictment——
: It might be more appropriate to consider the nature of the individual rather than that of the offence.
: I will consider the position between now and Report Stage.
The amendment appears to remove a power from the superior court and confine it to the District Court. The Minister's intention is that it should be used for less serious offences that would normally be dealt with in the District Court. However, one could see a minor conviction emerging——
: On a point of information, amendment No. 290 is related to amendment No. 177 and we will, therefore, take the two together. Amendment No. 290 sets out some of the offences and may be informative to the committee.
: I am aware of a case involving a man who was tried for murder in the Central Criminal Court. All charges were withdrawn, other than that of common assault and the jury found him not guilty even on that minor charge.
It would be hard to say to a Circuit Court judge that he or she would have done something if the matter had been dealt with at District Court level.
Yes.
That is the point.
I think we will remove the word "summarily".
It would make a lot of sense to do so.
Is the amendment to the amendment accepted?
Yes.
I thank the Minister.
I would like to make a few comments, in case the Parliamentary Counsel is wondering why I am accepting the amendment to the amendment. It would be slightly strange if a Circuit Court judge could do it while exercising an appellate jurisdiction from the District Court but could not do it while hearing a case in his or her own court.
It appears that it would be odd to give powers to a District Court judge that could not be exercised by a Circuit Court or High Court judge. I agree with the Minister's wise approach.
Amendment to amendment agreed to.
I move amendment No. 2 to amendment No. 177:
In section 100(2), to delete ", but the court may not, under paragraph (a), require the offender to be in any place or places for a period or periods of more than 12 hours in any one day”.
I would like to speak about amendment No. 2 to amendment No. 177, which seeks to delete the 12-hour provision. I do not want there to be a suggestion that I am making this proposal to be more macho. A more practical point occurs to me. On the face of it, it sounds very sensible to allow the court to make an order requiring a person to be in a place for a period of not more than 12 hours per day. Given that a day includes night time, we are talking about allowing the court to make an order covering the period between 10 p.m. and 10 a.m. I take it the order can relate to any period of the day. It occurs to me that some people who get into trouble do so during specific parts of the week such as weekends. Therefore, a judge might be inclined to restrict the movements of a person who is getting into bother every weekend. Such a restriction might apply from Friday night to Sunday morning, for example. I have proposed this amendment to the amendment to give the court a further option; it should not be totally restricted.
It is a sign of how far we have gone that the Deputy has not thought about going to mass.
I said the restriction could apply until Sunday morning, for example, at 10 a.m. We have 12 o'clock mass at home. I am not sure about the Minister's times.
Other religions have services on Friday or Saturday.
I have proposed this amendment to the amendment for consideration. Should we provide that the court will be able to make a restriction order for a period of more than 12 hours in certain circumstances if it is thought appropriate? That is the practical point I am making.
I think it is a good one. I support the reasoning Deputy O'Keeffe has given for amendment No. 2 to amendment No. 177. I would like to speak about amendment No. 3 to the amendment which has been proposed to make the point that restriction orders should not be a made for periods of time longer than the duration of custodial sentences. When the Minister referred to that matter, he said it was different. I am not sure that is the case. That one could be monitored for six months in respect of an offence for which the maximum term of imprisonment is three months seems like an odd suggestion. I suggest a restriction on movement order may be made for any period of not more than "the maximum term of imprisonment for the offence concerned, or 6 months, whichever is greater". That is a more reasonable and just construction to put on the serious matter of restriction orders of this kind.
I have proposed amendment No. 4 to amendment No. 177, which is somewhat related to Deputy Howlin's amendment No. 3 to the amendment, to give a greater power to the District Court in this regard. While six months is regarded as being in keeping with the District Court's normal power of imprisonment, I understand the court has the power to impose a term of imprisonment of up to 12 months.
It can impose a sentence of up to two years.
It can impose a sentence of 24 months in the case of separate offences. I wonder why the Minister is tying the hands of District Court judges by providing that restriction on movement orders may be made for periods of not more than six months, given that such judges have the power to impose a sentence of up to 12 months of imprisonment — up to 24 months in instances of duality of convictions — in ordinary circumstances. We should tease out this issue before we come to a final view.
It might be useful for the Minister to rehearse for us the sanctions which accrue to each of the sections in the Third Schedule to the Bill.
Some of them are summary, while some are now indictable. As we have just extended it to indictable offences, I will not be able to——
That is fine.
Section 6 of the Criminal Justice (Public Order) Act 1994 provides for a penalty of imprisonment of three months or a fine of £500. Section 8 of the Act provides for a penalty of imprisonment of six months or a fine of £500. Section 11 of the Act provides for a penalty of imprisonment of six months or a fine of £1,000, or both. Section 13 of the Act provides for a penalty of imprisonment of six months or a fine of £500 for one offence, or for imprisonment of 12 months or a fine of £1,000 for another offence. Section 16 of the Act, which sets out the offence of affray, provides for a fine of £500 or imprisonment of 12 months on summary conviction, and for a fine or imprisonment of five years on conviction on indictment. Section 19 of the Act, which deals with the offence of obstruction of a peace officer, provides for a penalty of imprisonment of six months or a fine of £500, or both.
An assault under section 2 of the Non-Fatal Offences Against the Person Act 1997 leads to a fine of £1,500, or imprisonment for a term not exceeding six months, or both, on summary conviction. A conviction for assault occasioning harm, an indictable offence, leads to imprisonment of 12 months or a fine of £1,500, or both, on summary conviction and to a fine or five years' imprisonment on indictment. The offence of coercion under section 9 of the 1997 Act leads to a fine of £1,500 or imprisonment for 12 months, or both, on summary conviction and to a fine or five years' imprisonment, or both, on indictment. The offence of harassment under section 10 of the Act is punishable by a fine of £1,500 or 12 months' imprisonment on summary conviction and to a fine or seven years' imprisonment, or both, on indictment.
Many of the terms of imprisonment are of 12 months.
Seven years would be a long time to provide for electronic tagging.
Obviously, it would not be appropriate.
I will think about the issue of limits that was raised. I do not want to make announcements on it, as I do not want it to be suggested I said there would be a maximum penalty——
We have to desegregate the two. It is useful to have the tariff but if there is a serious assault, the issue of tagging would not come into it. A jail sentence would be appropriate in the case of a serious assault causing harm. I imagine that is the way the courts would look at it.
What about early release?
That is a different kettle of fish.
To be honest, I would prefer to think about it rather than changing course on the hoof.
All right.
I ask Deputy O'Keeffe to deal with amendment No. 5 to amendment No. 177.
Amendment No. 5 to amendment No. 177 relates to the proposed section 100(6) which states the court should have regard to certain matters when it is determining "the period or periods during which the offender shall be in a specified place or places". It seems the manner in which this provision is phrased means the court will have to take into account the "circumstances of the offence of which the offender has been found guilty and any educational course, training, employment or other activity in which the offender is participating". I understand the thinking behind this. I would be very anxious that any effort by the offender to improve his or her education would be taken into account when making an order. I am bringing this forward for consideration by the Minister or the Parliamentary Counsel.
From the wording of the amendment it reads as if a tax lawyer drafted it.
Between now and Report Stage I will think about the significance of the difference, but to be honest I do not think it is major.
There is not a major difference, but my amendment is possibly slightly better framed. I will leave the decision to the Minister and the Parliamentary Counsel.
In amendment No. 6 to the amendment I propose:
In section 100, after subsection (11), to insert the following subsection:
"(12) The court shall, in all circumstances, endeavour to ensure and satisfy itself that, the offender who is to be the subject of an order under subsection (1) fully understands the implications of his or her agreeing to comply with the requirement of the order under subsection (11)”.
On reflection, this is a belt and braces amendment. It is very important that the offender is aware of the full import of the order. It is a responsibility of the court system to bring home the full facts and ensure the offender understands the implications of his or her agreeing to comply with the requirements of the order. Perhaps this is covered in subsection (11).
Subsection (11) is explicit and I do not think there is much difference between us.
As I said, I took the belt and braces approach but I will not press the amendment. Amendment No. 7 to the amendment in my name is technical, but in amendment No. 8 to the amendment I am seeking to ensure the court would have power to serve the order or copies thereof to such persons it deemed appropriate. The Minister may consider this unnecessary.
It might be a family member.
It could be a parent, a teacher or——
Perhaps an affected person who has been harassed.
Subsection (12) does not prohibit them from notifying anybody else, but it a mandatory requirement that these three persons must be notified.
If the court believed others should be served with the order——
The court is not precluded from doing so. This is a list of the people who must be notified in every case.
Deputy O'Keeffe's amendment would do no harm. It would not detract anything. It simply reads: "(d) such other person as the court may deem appropriate.” Sometimes we forget the victim. A victim of intimidation or violence would be glad to learn there is an order that the people concerned cannot come near him or her. It would be proper that the victim would be able to wave the order at somebody if he or she came near.
I bring the amendment forward for consideration because it is worth examining the issue.
I will look at it again.
Amendment to amendment, by leave, withdrawn.
Amendments Nos. 3 to 8, inclusive, to amendment No. 177 not moved.
Amendment, as amended, agreed to.
I move amendment No. 178:
In page 25, before section 24, but in Part 4, to insert the following new section:
"101.—Where the restrictions on an offender's movements in a restriction on movement order are to be monitored electronically, the order shall include—
(a) a provision making an authorised person responsible for monitoring the offender's compliance with it, and
(b) a requirement that the offender shall, either continuously or for such periods as may be specified, have an electronic monitoring device attached to his or her person for the purpose of enabling the monitoring of his or her compliance with the order to be carried out.".
I wish to put the select committee on notice as to what the report states on electronic tagging. The Home Office states that rather than diverting people away from prison, over 80% of electronic tagging orders were used for people who would not have received custodial sentences in the first place.
Their savings are slightly notional.
Who issued that report?
This is the report from NAPO, the association representing staff in the national probation service.
It has a vested interest.
It is quoting statistics from the Home Office.
It does cast a slightly different light on the savings made.
How does anybody know that the people concerned would not have received a custodial sentence if this option had not been available?
That is a point. If somebody makes a tagging order, would he or she have sent the person concerned to jail? Did the probation officers work out what their overtime would be if they had to sit up all night waiting for a blip to come on the radar screen?
The probation officers were making the point and quoting statistics from the Home Office. In cases where judges would use the probation service they now have the option of electronic tagging. The best way to measure if an offender is complying with an order is by engaging with the probation and welfare officer who will monitor the situation. An electronic device does not do this. All it requires is that the person remain indoors; some offenders may even prefer this as no punishment is involved. I am against electronic tagging at this stage as I do not think a case has been made and we do not have sufficient details to make an informed decision.
I agree the cost implications are slightly conjectural. As I am mindful of the economic implications, it is certainly not a zero cost proposal in some respects. In regard to arguments based on statistics, I was in Lansdowne Rugby Club watching a match on Sunday. While leafing through the year book which had a number of humorous items, the following caught my eye: "Did you know that 42.7% of statistical assertions are wrong?"
I do not have the principled objection Deputy Ó Snodaigh has to this amendment, but he is correct to this extent. No one has practical experience of how electronic tagging might work. I am, therefore, grateful to the Minister for giving us his briefing note. I am certainly a lot less convinced that it is a practical solution. Two forms of electronic tagging are on offer, one of of which is the GPS tracking system which is affected by tall buildings, low clouds and tall trees, which would seem to rule out much of the countryside. I would be interested in hearing the Minister's views on its reliability. The other option, if not the GPS tracking system which I presume would be the more useful of the two, is to prevent people returning to the places where they previously engaged in serious mischief in order to intimidate or harass others. The easier option is to provide for confinement to home, although that would be a lot less valuable and less acceptable. Is enforcement of a home curfew the only practical option on offer?
I suggest Deputy Ó Snodaigh not get too excited about this provision. Legislation introduced 15 or 20 years ago provided for the introduction of the electronic monitoring of Garda interviews, a system now used in approximately 96% of specified places.
I shared the Deputy's ebbing enthusiasm when I studied some of the figures. Rather than walk away completely from this, I thought it better to leave it on the Statute Book in the hope the GPS system would be improved and costs would come down. It is not something into which one would rush or to which one would grant an unlimited line of expenditure. One would need to be sure it would work before investing heavily in it.
Yes.
I will explain the sequence of events for the Deputy. I was told this was a good idea. I then met people from the English probation service who were enthusiastic about it and I agreed to include it in the Bill. When the data began to emerge, I wondered whether it was worth the candle but rather than walk away completely from it, it is included in limited form in the legislation.
It is a——
It is certainly not a candelabra.
I am concerned about the Minister's waning enthusiasm.
I am concerned about spending €1,200 a month on it.
It would be more beneficial to employ a few more probation and welfare officers.
Am I correct in saying the provision of this service in Portlaoise is costing €250,000 per year?
It is costing €147,000 per annum. However, the people about whom we are speaking would not be imprisoned in Portlaoise.
Also, the cost of the service, even in some less secure prisons, can be €2,000 or €3,000 per week.
Statistics can prove virtually anything in this context. The damage to society in a period of three weeks, as a result of the early release by me from prison of a repeat offender, could be vast in terms of the number of burglaries that could be committed.
They must be released at some stage and should be monitored in some way.
So long as they do not go by tall trees, low cloud and tall buildings. Is that what the Deputy is suggesting?
We could include it in the Schedule to the Bill.
They could only be let out on a sunny day in an open field.
Amendment put and declared carried.
I move amendment No. 179:
In page 25, before section 24, but in Part 4, to insert the following new section:
"102.—(1) Where a restriction on movement order is in force, the court may, if it so thinks proper, on written application by—
(a) the offender,
(b) where appropriate, the owner of, or an adult person habitually residing at, the place or places or, as the case may be, the person in charge of the place or places, specified in the order,
(c) a member of an Garda Síochána, or
(d) where appropriate, an authorised person who is responsible under section 101 for monitoring the offender’s compliance with the order,
vary the order by substituting another period or time or another place for any period, time or place specified in the order.
(2) An application under subsection (1) shall be made on notice to such of the other parties specified in subsection (1) as is appropriate.
(3) Where any party specified in subsection (1) objects to the variation of a restriction on movement order, the court shall not vary the order without hearing from that party.
(4) The court shall cause certified copies of a restriction on movement order varied under this section to be sent to—
(a) the offender,
(b) where appropriate, the owner of, or an adult person habitually residing at, the place or places or, as the case may be, the person in charge of the place or places, specified in the order,
(c) the member in charge of the Garda Síochána station for the area where the offender resides or, where appropriate, the area where he or she is to reside while the order is in force, and
(d) where appropriate, an authorised person who is responsible under section 101 for monitoring the offender’s compliance with the order.
(5) The jurisdiction vested in the court under this section shall be exercised by a judge of the District Court for the time being assigned to the district court district in which the offender resides or is to reside while the restriction on movement order is in force.".
I move amendment No. 1 to amendment No. 179
In section 102(1), before "vary the order" to insert "or counsel for any such party,".
Will the Minister agree to the inclusion of a provision allowing a variation of a restriction of movement order? I am a little intrigued by the way this is framed. I am also slightly intrigued by the amendment which was framed by a colleague in my office.
Normal cynicism does not apply.
It makes no provision for solicitors. The amendment provides: "the court may, if it so thinks proper, on written application...". Why must this be done by way of written application? Does this mean the court cannot consider an application, unless it is presented in writing by either the offender or others involved?
The Minister has made the point that anybody can speak on behalf of an applicant or anyone else. There may not be a great need for my amendment. However, I am concerned as to why an application must be made in writing. That is my main concern in relation to the proposal. Why not simply use the words "on application"?
Subsection (3) provides that "the court shall not vary the order without hearing from that party...". I will revisit the provision to see whether it is necessary that an application be made in writing. We might provide that an application may be made either orally or in writing. The proposal was to allow a person to submit a letter and, if there was no objection raised, the matter could be dealt with in that way.
We could end up with a restrictive statutory provision.
Exactly. We might provide that an application may be made orally or in writing.
I would like the Minister to consider my proposal. I will withdraw my amendment and will not resubmit it in this format.
I will tell people in the Law Library about this vindictive action.
Amendment to amendment, by leave, withdrawn.
Amendments Nos. 2 and 3 to amendment No. 179 not moved.
Amendment agreed to.
I move amendment No. 180:
In page 25, before section 24, but in Part 4, to insert the following new section:
"103.—(1) Where more than one restriction on movement order is in force in respect of an offender at any time, the period during which the offender is required to be in a specified place or places shall, notwithstanding subsections (2) and (3), not be for a period of more than 6 months.
(2) Where a court makes restriction on movement orders in respect of 2 or more offences of which the offender has been found guilty, it may direct that the period for which the offender is required by any of those orders to be in a specified place or places shall be concurrent with or additional to that specified in any other of those orders.
(3) Where a court makes a restriction on movement order and at the time of the making of the order there is in force in respect of the offender another such order (whether made by the same or a different court), the court making the later order may direct in that order that the period for which the offender is required by that order to be in a specified place or places shall be concurrent with or additional to that specified in the earlier order.".
Subsection (1) of the amendment provides:
Where more than one restriction on movement order is in force in respect of an offender at any time, the period during which the offender is required to be in a specified place or places shall, notwithstanding subsections(2) and (3), not be for a period of more than 6 months.
Why include this restriction? Is it to ensure the legislation will be constitutionally pure?
The policy consideration behind it is that orders lose impact and are more likely to be breached if they are allowed to continue forever. It is believed they have immediacy only if they are finite and of relatively short duration.
New orders can be imposed.
That is my point. What powers will a judge have in relation to a restriction of movement order where a restriction order is in place for six months and a new case emerges during the fifth month concerning, perhaps, an old offence only then reaching court?
Where a court makes a restriction of movement order and at the time of the making of the order there is in force in respect of the offender another such order, made by the same or a different court, the court making the later order may direct in writing that the period the offender is required to be in a specified place or places shall run concurrently or be additional to that specified in an earlier order.
That contradicts the point made.
The point made was that a judge could have imposed on a person in one day three or four orders, some of which might have been appealed. One does not wish to see a situation where a judge would impose four consecutive orders on the same day arising from the one incident.
I am not opposed to the proposal but may return to it on Report Stage.
Amendment agreed to.
I move amendment No. 181:
In page 25, before section 24, but in Part 4, to insert the following new section:
"104.—(1) Where a restriction on movement order is in force and it appears to a court, on application by a member of an Garda Síochána or, where appropriate, an authorised person who is responsible under section 101 for monitoring the offender’s compliance with the order,that the offender has failed, without reasonable cause, to comply with the order or any condition to which it is subject,the court may—
(a) if the order was made by a court in the district court district in which the offender resides or is to reside while the order is in force—
(i) direct the offender to comply with the order or any such condition in so far as it has not been complied with,
(ii) revoke the order and make another restriction on movement order in respect of the offender, or
(iii) revoke the order and deal with the case in any other way in which it could have been dealt with before the order was made,
or
(b) if the order was made by a court in another district court district, remand the offender on bail to a sitting of that court to be dealt with, and for that purpose, paragraph (a) shall apply in relation to that court, with the necessary modifications.
(2) The matters to be taken into account by the court in arriving at a decision pursuant to subsection (1) shall include the extent to which, and the period during which, the offender has complied with the order concerned or any condition to which it is subject.
(3) Where the court proposes to exercise its powers under subsection (1), it shall summon the offender to appear before it and, if the offender does not appear in answer to the summons, it may issue a warrant for his or her arrest.
(4) The jurisdiction vested in the court under this section shall be exercised by a judge of the District Court for the time being assigned to the district court district in which the offender resides or is to reside while the restriction on movement order is in force.".
Amendment agreed to.
I move amendment No. 182:
In page 25, before section 24, but in Part 4, to insert the following new section:
"105.—Where 2 or more sentences, one of which is a restriction on movement order, are passed on an offender by the District Court and are ordered to run consecutively, the aggregate of the period during which the order in respect of the offender is in force and the period of any term or terms of imprisonment imposed on him or her shall not exceed the maximum period of the aggregate term of imprisonment specified in section 5 of the Criminal Justice Act 1951.".
I move amendment No. 1 to amendment No. 182:
In the inserted section 105, after "1951" to insert ", as amended by sections 11 and 12 of the Act of 1984, section 13 of the Criminal Law Act 1976, and section 8 of the Family Law (Protection of Spouses and Children) Act 1981".
This is a technical drafting amendment. I put it forward for consideration in that context.
Is it the Minister's point that for the understanding of the capability of the District Court to impose orders the maximum aggregate sum of the sentence and restriction is two years?
Yes. No matter what happens in the District Court and what one has done, two years after the event no order will have effect. That is the maximum life of an order.
Amendment to amendment, by leave, withdrawn.
Amendment agreed to.
I move amendment No. 183:
In page 25, before section 24, but in Part 4, to insert the following new section:
"106.—(1) Evidence of the presence or absence of the offender in or from a particular place at a particular time may, subject to the provisions of this section, be given by the production of a document or documents being—
(a) a statement automatically produced by a device, prescribed by regulations under section 110, by which the offender’s whereabouts were electronically monitored, and
(b) a certificate signed by an authorised person who is responsible under section 101 for monitoring the offender’s compliance with the order that the statement relates to the whereabouts of the offender at the dates and times shown in the statement.
(2) The statement and certificate mentioned in subsection (1) shall, when produced at a hearing, be evidence, until the contrary is shown, of the facts set out in them.
(3) Neither the statement nor the certificate mentioned in subsection (1) shall be admissible in evidence unless a copy of both has been served on the offender prior to the hearing.”.
I move amendment No. 1 to amendment No. 183:
In subsection (1), to delete paragraph (a).
This amendment would give effect to my point that we are being premature in arguing for electronic tagging at this stage and that we should delete the paragraph and deal with the matter in separate legislation, if required, when we know the practicalities, how it will be rolled out, who will be in charge and when we can deal with the matter in detail in terms of the probation and welfare service.
Amendment to amendment put and declared lost.
Amendment agreed to.
I move amendment No. 184:
In page 25, before section 24, but in Part 4, to insert the following new section:
"107.—(1) A direction in respect of a person aged 18 years or more may be subject to a condition restricting the person's movements to such extent as the Minister thinks fit and specifies in the direction and those restrictions may be monitored electronically in accordance with subsection (4).
(2) Without prejudice to the generality of subsection (1), a direction may include provision—
(a) requiring the person to be in such place or places as may be specified for such period or periods in each day or week as may be specified, or
(b) requiring the person not to be in such place or places, or such class or classes of place or places, at such time or during such periods, as may be specified, or both, but the Minister may not, under paragraph (a), require the person to be in any place or places for a period or periods of more than 12 hours in any one day.
(3) A direction shall not be subject to a condition which restricts the movements of a person in accordance with subsection (2)(a) without the consent of the owner of, or any adult person habitually residing at, the place or places concerned or, as the case may be, the person in charge of the place or places concerned.
(4) Where the restrictions on a person's movements imposed by a condition in a direction are to be monitored electronically, the direction shall include—
(a) a provision making an authorised person responsible for monitoring the person’s compliance with the condition and the condition referred to in paragraph (b), and
(b) a condition that the person shall, either continuously or for such periods of not more than 6 months as may be specified have an electronic monitoring device attached to his or her person for the purpose of enabling the monitoring of his or her compliance with the condition restricting his or her movements to be carried out.
(5) A condition shall not be imposed under subsection (1)or (4)(b) unless the person concerned agrees to comply with it, but the absence of such agreement shall not confer an entitlement on that person to be released pursuant to a direction.”.
I move amendment No. 1 to amendment No. 184:
In subsection (1) to delete all words form and including "and" where it secondly occurs down to and including "subsection (4)”.
I have tabled two amendments to amendment No. 184. Again, their purpose is to give effect to the proposals I have made in regard to electronic tagging.
I am in favour of providing that the Minister can make regulations to permit somebody to be released subject to tagging and monitoring. Under this section, the Minister can issue a direction and it can include a requirement that a person be in such place or places for such a period or periods in each day or week as may be specified. I suggest exceptional circumstances should be taken into account. If somebody is required to stay in his or her home between 10 p.m. and 10 a.m. — in some circumstances that would be fully justified — what would be the position if the house went on fire or if some circumstance arose that reasonably prevented him or her from complying with the requirement?
What if a child was sick and had to be taken to hospital?
What if the person's father had a heart attack or, as Deputy Howlin suggested, a child became seriously ill and had to be rushed to hospital? Should we include a clause that would allow for non-compliance in exceptional circumstances?
If we were to provide for exceptional circumstances, we would have to require the court to specify what the exceptional circumstances might be in advance or include in the legislation a list of exceptional circumstances that involve force majeure. It would be more sensible to leave the legislation as it is and assume that a sensible judge would severely reprimand a garda who did not take such circumstances into account.
I work on the basis that in general one expects common sense to prevail.
We cannot provide that the subject can decide what constitutes exceptional circumstances. If we provide that the court must decide, it must decide by reference to some rule of thumb or Schedule in the Bill or must specify it in an order. That would not make for practical law.
From the point of view of those here who have experience of the courts, is there an inherent flexibility in such a matter?
Let me give an example. If a prison were to go on fire, technically, somebody who jumped over the wall to escape the fire would be committing the offence of jail breaking.
If they set the fire in the first instance, would that make a difference?
If they set the fire, jumped over the wall and said it was the only way to escape, they would be given a hefty sentence, whereas if they were escaping from a genuine emergency, I cannot imagine they would be prosecuted for jail breaking. In all such matters, under the Garda Síochána Act, all prosecutions are taken in the name of the Director of Public Prosecutions. We must have some faith in his independence and good judgment in these issues.
I will not press my amendment.
Is Deputy Ó Snodaigh pressing his amendment?
Amendment No. 4 to amendment No. 184 involves a requirement to seek consent.
The reason is we do not want somebody to say he or she was coerced.
There is no requirement to seek consent when a person is sent to jail.
No. Under the 1960 Act, somebody released from jail under the temporary release provisions must accept temporary release. One cannot be released on conditions one does not accept.
Does this mean the person must indicate beforehand that he or she fully understands the provisions relating to tagging and monitoring and consent to such requirements rather than being handed a document stating the conditions of release?
Would it be a justification for non-compliance with the conditions of release if a person subsequently asserted that he or she had not agreed to the conditions?
Will this provide an out for people? I operate on the general principle that such persons will want to get out of jail anyhow——
——and that there should be conditions attached.
——and that we are merely talking about the conditions of release.
I thought it was the case in general that one had to consent to the conditions of release.
Is the Minister concerned about electronic tagging?
Under the regulations, one must sign a form of acknowledgement of the conditions on which one is being released. I remember this from cases in which I was involved. Whether one agrees with them is a different matter. I will have to check that between now and Report Stage.
Reluctance might be allowed also.
Amendment to amendment put and declared lost.
Amendments No. 2 to amendment No. 184 not moved.
I move amendment No. 3 to amendment No. 184:
To delete subsection (4).
Amendment to amendment put and declared lost.
Amendment No. 4 to amendment No. 184 not moved.
Amendment agreed to.
I move amendment No. 185:
In page 25, before section 24, but in Part 4, to insert the following new section:
"108.—(1) In any proceedings for an offence under section 6(2) of the Criminal Justice Act 1960 evidence of the presence or absence of the person in or from a particular place at a particular time may, subject to the provisions of this section, be given by the production of a document or documents being—
(a) a statement automatically produced by a device, prescribed by regulations made under section 110, by which the person’s whereabouts were electronically monitored, and
(b) a certificate signed by an authorised person who is responsible under section 107(4) for monitoring the offender’s compliance with the condition in the direction that the statement relates to the whereabouts of the person at the dates and times shown in the statement.
(2) The statement and certificate mentioned in subsection (1) shall, when produced at a hearing, be evidence, until the contrary is shown, of the facts set out in them.
(3) Neither the statement nor the certificate mentioned in subsection (1) shall be admissible in evidence unless a copy of both has been served on the person prior to the hearing.”.
I move amendment No. 1 to amendment No. 185:
In subsection (1), to delete paragraph (a).
This amendment proposes the deletion of any reference to electronic tagging.
The new section 108(1)(a), as proposed in amendment No. 185, will provide that “a statement automatically produced by a device, prescribed by regulations made under section 110, by which the person’s whereabouts were electronically monitored” will be admissible as evidence of the absence or presence of a person. It seems we are putting a great deal of emphasis on machinery. It reminds me of the argument on electronic voting, in that we are expected to accept electronic systems are foolproof.
Low flying clouds excepted.
Exactly. High buildings can also have an effect. We started from a similar premise during the debate on electronic voting, although we resiled from it in the Dáil when consensus was reached among most of us to do so after experts had told us we had too much faith in the ability of machinery to produce evidence. We may well need to provide for an evidential base — that is the case in normal circumstances — but I presume it will be open to challenge in the normal way. I presume that is the failsafe measure in place.
The forms of documentation mentioned in the proposed section 108(1) are deemed under the proposed section 108(2) to "be evidence, until the contrary is shown, of the facts set out in them". If one can make a convincing case to a judge that one was in one's bed all night and one has no idea why the machine suddenly indicated one was elsewhere, one will be fine. We will have to abandon the non-satellite based technology completely if we decide that its automatic recording means nothing. What would be the point in having such a system in such circumstances? We would have to employ somebody who is a credible witness to engage in monitoring 24 hours a day, 7 days a week, 365 days a year, as suggested by Deputy O'Keeffe's party leader. Even then we would have to consider whether what was being monitored was reliable. If we use a GPS-based system, that is one thing — someone could say he or she monitored a signal two miles from where the person should be. If we use a system based on the distance from a device in one's house which is connected to one's telephone, however, that is a different matter. If we do not make provision for that device's recording of the absence of the electronic monitor to be admissible in any shape or form, we might as well forget the whole system because its findings would not be provable in any shape or form.
Can I ask about the words "automatically produced"? Have they been included in the Minister's amendment for a purpose?
Yes, they have been included to suggest what is produced is a mechanical statement.
I wonder whether emphasis is being placed on the difference between a statement "automatically produced" by a device and a statement produced by a device, manually produced by a device or caused to be produced by a device. I do not know whether it has a technical or legal meaning.
I will examine between now and Report Stage whether the inclusion of the word "automatically" adds anything to the price of eggs. It may be that it does not make a difference. All I am saying, as a general principle, is that if one does not accept that the output of such a device is admissible, we cannot have such devices at all.
There is a difference between "admissible" and "incontrovertible". I am not suggesting——
The proposed section 108(2) makes it clear that it is not incontrovertible.
——that either is the case.
Section 108(2) makes it clear that it is not incontrovertible.
It is more than admissible, however. It is a statement of fact.
It is enough for a court to come to that conclusion without a convincing explanation to the contrary. There will not be someone there to say he or she saw the person in question leaving through the front door.
The use of the term "automatically" is interesting. Under the data protection legislation, there has to be human intervention before an automatic telephone call can be made. One has to do something such as pressing a button to enable such a call to be made. In this instance, human intervention will be needed to get a statement from one of these devices.
Yes. We will look at the term to see whether it is necessary.
Amendment to amendment put and declared lost
Amendment agreed to.
I move amendment No. 186:
In page 25, before section 24, but in Part 4, to insert the following new section:
"109.—Section 2(1) of the Criminal Justice Act 1960 is amended by the insertion of "(including, if appropriate, any condition under section 107* of the Criminal Justice Act 2006)” after “subject to such conditions, as may be specified in the direction”.”.
Amendment agreed to.
I move amendment No. 187:
In page 25, before section 24, but in Part 4, to insert the following new section:
"110.—The Minister may prescribe by regulations the types of electronic monitoring device that may be used for the purpose of monitoring—
(a) the compliance of offenders with a requirement under section 101, and
(b) the compliance of persons with section 107(4).”.
This amendment which gives the Minister the power to decide on "the types of electronic monitoring device that may be used" relates to the point I was making. The Minister states in his briefing note that two types of devices will be used. What types of device does he intend to authorise? What timeframe does he envisage for their introduction?
I have not exactly been working out a detailed model during the cooling and descending soufflé of enthusiasm for this measure on my part. There are two methodologies — the GPS and a domestic device that measures distance or absence. Any decision on which of the two models will be used will depend on which of them is cheaper and more reliable. If we are to lay out big bucks on this, to use a colloquialism, we will have to ensure it is reliable and good value for money.
Can I ask about the two options? The use of home-based proximity devices would be within our control on this island, whereas the use of GPS monitoring would involve reliance on a satellite system not within Ireland's control. The US Government shut down the GPS across the world when the events of 11 September 2001 took place. To use the GPS would be to rely on a system that is not in——
It occurs to me while listening to the Deputy's points that if one had automatic GPS transfer to one's mobile phone, one could wander around with one's monitoring device in one's knapsack and the mobile phone in one's hand, thereby always appearing to be in one's home. I do not know much about the technicalities of these matters. I am really not in a position to help the Deputy in this regard.
The brighter people will be doing these very things.
They will be.
The note appears to suggest the GPS-based system is considered to be more expensive, even in the United Kingdom. If there are further developments in the GPS, we can take advantage of them, but in the meantime we should probably be looking at the other system.
No matter how enthusiastic we may be politically about the introduction of a system of this nature, we should not forget there are some practical difficulties with it.
The Minister is trying to pour water on it.
I will be on my own with my tagging devices.
The Minister with responsibility for this matter after 2012 will probably put the necessary regulations in place.
I might have to try a few pilot schemes in the House.
The first problem I have with amendment No. 187 is that this system will be introduced by means of regulations.
That is right.
The matter will not come back to us. The Minister, whose support for this proposal is waning, or a future Minister will be responsible for the system.
I take back the phrase "waning". I did not use it.
The Minister did use it.
Perhaps I should say my enthusiasm for it has reached its apogee and is now——
Waning.
It has reached a plateau. It is considerably lower than the high point.
It is lower. The point is that there are major concerns about the GPS. We can make that argument here, but there is another one that we should have had before this proposal was brought to the select committee. We should have been asked to investigate the matter.
Has the Minister looked at this?
I have read some of the literature and listened to a few appreciations of it. All I can say is I have reconsidered the matter since last November when I came before the committee while full of enthusiasm for it. Some of the practical difficulties, namely, money and reliability, have now become more apparent. As Deputy Ó Snodaigh said, an issue also arises as to whether the money would be better spent on other things. These are the issues we must consider.
We must also bear in mind the surrogacy effect, namely, that if people believe they are being monitored, even if the system is not reliable, it may have a detrimental effect on their behaviour.
I am not an expert on global positioning systems. I recall reading that the Pakistani Government, when developing its nuclear power plants, developed them in black spots of the country not monitored by satellites. Issues such as this and the reprogramming by the United States of satellites prior to the first invasion of Iraq resulting in the Iraqi army Revolutionary Guard being caught unawares must be considered. Also, we do not own or control the machines, another argument against the GPS system. Another aspect of the issue is that of telephone lines and so on.
I regularly receive complaints from a constituent who does not believe this type of device is necessary. I do not know if other members have received similar complaints.
The same——
There are a number of them.
Yes, there are a few of them around.
We will refer them to the Minister.
We will refer them to the Minister who has the expertise to deal with them. I, too, have concerns about the electronic monitoring device and regulations.
Satellites are not expensive and can be erected relatively cheaply.
We could develop one of our own and call it the McDowell Eye.
It would be launched somewhere in Europe but in situ over Ireland.
We should not give the Minister any ideas.
It would not be as inexpensive as members believe.
There is a blind assumption I have not done so already.
The Vatican satellite was receiving Redhot Dutch at some stage. I do not think we will go down that road.
Amendment agreed to.
I move amendment No. 188:
In page 25, before section 24, but in Part 4, to insert the following new section:
"111.—The Minister may make such arrangements, including contractual arrangements, as he or she considers appropriate with such persons as he or she thinks fit for the monitoring of—
(a) the compliance of offenders with restriction on movement orders, or
(b) the compliance of persons with a condition imposed under section 107(4) in directions in respect of such persons, or both.”.
This amendment deals with privatisation and raises concerns in outsourcing systems used in the judicial system, in particular. The primary objective of private companies is profit, not the common good. We should not go down this road. If electronic tagging is to be introduced, the issue should be dealt with by the probation and welfare service or another agency within the judicial system.
I have a difficulty with the form of words used. There are rules and regulations attached to public procurement. The amendment provides that the Minister may make such arrangements, including contractual arrangements, as he considers appropriate.
He or she.
It is the current "he" about whom I am concerned. The provision confers a dominant legal right on the Minister to make whatever contractual arrangements he considers fit without having regard to normal rules of contract, procurement policy of Government, tendering and so on. I assume that is implicit in the form of words used.
If it pleases the Deputy, I may suck up to my colleague, the Minister for Finance, Deputy Cowen, and insert the words "arrangements, with the consent of the Minister for Finance...".
Grudgingly.
I will then not be able to do anything improper. Whether I will be able to do anything at all is a different matter.
This is the type of arrangement which caused us bother in relation to electronic voting. The Minister or some of his advisers may think a particular device is good. However, there needs to be a better system.
I will amend the provision to provide for the involvement of the Minister for Finance. I am amazed the Department of Finance has not picked up on this already.
I am worn out.
If the Deputy keeps at it, he can get——
I am happy with the proposal.
Is it sufficient for Deputy Howlin?
I would rather use a different form of words.
One is usually tied by the inclusion of the words "with the consent of the Minister for Finance" in relation to all public procurement procedures.
Perhaps the Minister or his officials might undertake to find out what is the normal form of words in a provision of this type.
The Deputy's estimate of 2012 is now being put back to about 2018.
Amendment put and declared carried.
Perhaps this would be a good time to take a strategic look at how matters stand.
The next section deals with adult anti-social behaviour orders. The Minister of State, Deputy Brian Lenihan, will then deal with the amendments to the Children Act.
They are dealt with in Parts 11, 12 and 13. We will only have minor issues to deal with after that.
There are many more important amendments to deal with.
The final part of the Bill deals with miscellaneous provisions.
Yes.
Perhaps we could deal during our next meeting with Part 11, adult anti-social behaviour orders. I understand the Minister of State, Deputy Lenihan, will deal with the amendments to Parts 12 and 13.
Yes.
My colleague, Deputy Murphy, will deal with the amendments to those Parts.
Will Deputy Howlin be participating in our discussions on them?
Yes.
When is it proposed we meet again?
While I want to accommodate members, I am anxious to complete Committee Stage.
We all are.
We have dealt with a number of issues at this point.
We will now go into private session.
The select committee went into private session at 4 p.m. and resumed in public session at 4.05 p.m.
Did the Minister wish to comment on a particular matter?
I want to inform the committee that on Report Stage I will be tendering amendments on the emergency warrant procedure to provide for enhanced judicial scrutiny of all warrants issued by members of the Garda Síochána.
Will that apply to the right of inspectors under the section dealing with firearms to inspect premises?
No, it will apply to warrants.
I know that. Would the Minister consider extending the provision to cover that area?
I will consider the Deputy's proposal.
Progress reported; Committee to sit again.
The select committee adjourned at 4.10 p.m. until 2 p.m. on Wednesday, 17 May 2006.