I move amendment No. 12:
In page 11, line 31, to delete "in that District Court District".
This is a technical amendment which is necessary to reflect the existing statutory arrangements and practice relating to remands on bail under this provision. It tidies up the section.
I move amendment No. 13:
In page 11, before section 14, to insert the following new section:
14. —(1) The Minister for Justice may make rules for the regulation and good government of prisons.
(2) For the purposes of this section ‘prison' means a place of custody administered by the Minister for Justice.
(3) Without prejudice to the generality of the foregoing, rules under this section may provide for—
(a) the duties and conduct of the governor and officers of a prison,
(b) the classification of persons detained in a prison,
(c) the treatment of persons detained in a prison, including the diet, clothing, maintenance, employment, instruction, discipline and correction of such persons,
(d) the provision of facilities and services to persons detained in prison, including educational facilities, medical services, and services relating to the general moral and physical welfare of such persons,
(e) the imposition of penalties by the governor of a prison or an officer of that prison acting on his or her behalf for such breaches of prison discipline as may be specified in such rules by persons detained in a prison,
(f) remission for good conduct of a portion of a convicted person's sentence,
(g) the photographing and measuring of persons detained in a prison and the taking of fingerprints and palmprints from such persons during their detention in a prison.
(4) The governor of a prison or an officer of that prison acting on his or her behalf may furnish the Garda Síochána with copies of photographs, measurements, fingerprints or palmprints obtained in accordance with rules made under this section.
(5) Section 3 of the Prison (Visiting Committees) Act, 1925, is hereby amended by the substitution of the following subsection for subsection (3):
‘(3) An appeal from a decision of the governor of a prison or an officer of that prison acting on his or her behalf to impose a penalty on a person, in accordance with rules made under section 14 of the Criminal Justice (Miscellaneous Provisions) Act, 1996, may be heard by a visiting committee subject to and in accordance with rules made under this Act.'.
(6) Subsection (3) of section 13 of the Criminal Justice Act, 1960, is hereby amended by—
(a) the substitution of the following paragraph for paragraph (a):
‘(a) the Prisons Acts, 1856 to 1956 (other than section 12 of the General Prisons (Ireland) Act, 1877, the Prisons (Ireland) Act, 1907, and section 8 of the Penal Servitude (Ireland) Act, 1891) and the rules made thereunder, whether made before or after the commencement of this Act,'
and
(b) the insertion of the following paragraph:
‘(aa) rules made under section 14 of the Criminal Justice (Miscellaneous Provisions) Act, 1996, and'.
(7) Rules made under section 12 of the General Prisons (Ireland) Act, 1877, and the Prisons (Ireland) Act, 1907, and regulations made under section 8 of the Penal Servitude (Ireland) Act, 1891, that were in force immediately before the commencement of this Act, shall continue in force as if made under this section and may be amended or revoked accordingly.".
Amendment No. 28 is consequential in part on amendment No. 14 and both may be discussed together.
I move amendment No. 14:
In page 11, before section 14, to insert the following new section:
15.—(1) The Courts Act, 1971, is hereby amended by—
(a) the insertion of the following section:
13A.—(1) The District Court shall, as soon as may be after the passing of the Criminal Justice (Miscellaneous Provisions) Act, 1996, provide itself with one or, as may be appropriate, more than one seal—
(a) in respect of each District Court Area, and
(b) in respect of the Dublin Metropolitan District,
for use in the District Court Area concerned or the Dublin Metropolitan District, as the case may be.
(2) A seal under this section shall be inscribed with the number of the District Court District and the name of the District Court Area to which it relates or, in the case of the Dublin Metropolitan District, with the name of that District.
(3) Where there is more than one seal in respect of a District Court Area each seal shall, in addition to the number it is required to bear under subsection (2), bear a number distinguishing it from all other seals in respect of that District Court Area.
(4) Each seal in respect of the Dublin Metropolitan District shall, in addition to the name it is required to bear under subsection (2), bear a number distinguishing it from all other seals in respect of that District.
(5) Rules of court may make provision for the custody of a seal under this section.',
and
(b) the substitution of the following section for section 14:
‘14.—(1) In any legal proceedings regard shall not be had to any record, relating to a decision of a judge of the District Court in any case of summary jurisdiction, other than an order which, when an order is required, shall be drawn up by the District Court clerk and either—
(a) signed by the judge who made the order, or
(b) affixed with the seal of the District Court in respect of the District Court Area in which the order was made or, where the order was made by a judge of the District Court sitting in the Dublin Metropolitan District, affixed with the seal of that District,
or a copy thereof certified in accordance with rules of court.
(2) A seal of the District Court when affixed to an order drawn up in accordance with this section shall be authenticated by the signature of the judge who made the order or the District Court clerk who drew up the order.'.".
The purpose of the amendment is to enable the District Court to provide itself with a seal and to provide that an order of the District Court, which has been sealed and authenticated by the signature of the District Court clerk, shall be a record of the decision of the District Court. The difficulty which exists with the procedure as it is now is that each order must be signed by the District Court judge. This takes a considerable length of time in busy courts. This amendment will continue to allow the record of the decision to be an order signed by a judge of the District Court. In addition, it will also provide that an order affixed with the seal of the District Court and authenticated by the signature of the District Court clerk shall equally be a record of the decision of the District Court. A similar provision applies in the Circuit Court under the rules of court and in that court orders may be sealed and authenticated by the signature of the county registrar. The amendment will help to improve the administration of the District Court. It will also necessitate an amendment to the Long Title which is provided for in amendment No. 28.
Section 14 of the Courts Act, 1971, provides that the only record of a decision of the District Court shall be the formal order signed by the District Court. The president of the District Court has made a case to me that much time is spent signing these orders. This is a modern technique which should be available to the District Court, as it is to the Circuit Court. I hope there will not be any difficulties with it.
I move amendment No. 15:
In page 11, before section 14, to insert the following new section:
"16.—Sections 2 to 9, 11 and 13 shall come into operation one month after the passing of this Act.".
It is necessary to amend this section to take account of the new sections relating to powers of detention under section 4 of the Criminal Justice Act, 1984, criminal fingerprinting, the amendment of section 28 of the Criminal Justice Act, 1984, to include palmprints and photographs, and the revised statutory basis for prison rules. All the new sections inserted in the Bill, apart from the amendment of section 28 of the Criminal Justice Act, 1984, will come into effect on its enactment. It is a commencement order in the Bill.
Amendment No. 16 is a new section and amendments No. 17 in the name of Deputy O'Donnell and No. 26 in the name of Deputy O'Donoghue are related and all may be discussed together by agreement.
I move amendment No. 16:
In page 11, before section 14, to insert the following new section:
"14.—(1) Notwithstanding the provisions of section 7(2) of the Criminal Procedure Act, 1967, a judge of the District Court shall have discretion to disallow an application to require the attendance of any person for examination by way of sworn deposition, where it appears to the judge that the application—
(a) lacks substantial grounds, or
(b) is calculated, or likely, to unduly delay the trial of the trial of the offence, or
(c) is or is likely to be oppressive to any person.
(2) Where the depositions are taken, it shall be lawful for the judge of the District Court to have them recorded and transcribed, and for that purpose to adjourn the reading over of the deposition and its signature.".
Amendments Nos. 16 and 17 in my name revisit our view that there needs to be a review, reform or abolition of the preliminary investigation procedure which has been criticised on the grounds that it is anachronistic, time consuming, expensive and largely irrelevant. We have had a debate on this by way of a Private Members' Bill in my name in February of this year where I put forward these two sections.
The first amendment allows a District Court Judge discretion to refuse an application to require the attendance of witnesses for the purpose of sworn depositions in the course of a preliminary examination of indictable offences where the judge believes the action is unjust for the reasons set out in the section. At present, depositions can be abused to delay a trial and the District Court judge has no discretion to refuse an application for such. The section also provides that depositions, which have to be currently taken down in writing by the District Court Clerk, can be recorded, transcribed and later signed by a witness.
Amendment No. 17 amends the Criminal Procedure Act, 1967, by inserting a new fast track process whereby the Director of Public Prosecutions or the Attorney General, as appropriate, can direct a person to be sent forward for trial without preliminary examination. The purpose of this section is to permit speedy trials in cases where the prosecutor is satisfied that a preliminary examination would be redundant on the basis that there will be a certainty of sufficient evidence to have the case tried on indictment.
When I moved these substantial sections of my Prosecutions of Offences and Punishment of Crimes Bill in February, the Minister indicated that the preliminary examinations area was being examined by her Department and that she would take into account the proposals put forward to speed up the criminal justice system and criminal trials particularly. I have already argued the reasons, which the Minister knows, for abolishing the system or at least reforming it in the way I have proposed. Given that the Minister indicated, when we last examined this area that her Department was reviewing preliminary investigations, what progress has been made in this regard and what proposals has she to change or abolish the procedure?
It is significant in moving my amendment No. 26, which proposes the abolition of preliminary examinations in criminal trials, that people who have advocated the bail referendum have been equally adamant that there should be a speeding up of the trial process. There appears to be unanimity on the issue of speedy trials. The record in Ireland over several years has been that it takes a considerable period for a serious criminal trial to be heard by a judge and jury.
Where there is a preliminary examination relating to an accused person, the District Justice asks himself one question at its conclusion: if everything in the book of evidence or depositions was accepted by a jury, would it be entitled to convict of the offences charged? That is the sole function of the District Justice in a preliminary examination. He has no function in assessing or weighing evidence, let alone credibility. If the District Justice believes that if everything in the book of evidence were accepted by a jury that it would be entitled to convict of the offences as charged, then he simply says yes and the case is returned for trial.
It is interesting to note that in 1995 in the Dublin Metropolitan District Court, the preliminary examination procedure was followed in 673 cases. Of those, only seven were discharged at preliminary examination stage. If only seven were discharged out of 673 in the Dublin Metropolitan District Court in 1995, I do not believe anyone could seriously argue for the retention of what is a cumbersome and expensive system.
It appears to the public — and they are justified — that an accused person has to literally snake his way through the criminal justice system before justice is ultimately handed down by a court. That undermines confidence in the criminal justice system to an alarming degree. A person charged with a serious criminal offence arrives in court on the first occasion and will be remanded in custody or on bail. On the second occasion, the question will be the location of the trial and the serving or preparation of a book of evidence. Normally the accused will be remanded for another four weeks to appear again when the book of evidence is supposed to be served on him or her. Hardly ever is it ready within three to four weeks and, even when it is, the case is again remanded, usually for about two weeks, so that the accused and his lawyers can contemplate it.
On the next court hearing — and this is where the archaic nature of the system becomes all too apparent — the accused person is entitled to insist upon the attendance of all or any of the prosecution witnesses in the District Court to give evidence on deposition. The accused person can insist as of right, in this age of computers, word processors, electric typewriters, the internet and electronic mail, to have all the evidence taken down in longhand by the District Court Clerk. When all depositions are taken, the delay in finding courts to take depositions can take a further eight to ten weeks, the case is again remanded to a date when submissions must be made as to whether there is or is not, in the terms of the Criminal Procedure Act, 1967, a sufficient case to answer. The district justice must ask himself whether a jury would be entitled to convict on the offences charged if everything contained in the book of evidence or depositions was accepted. To say the least, that is a most cumbersome and archaic system which is appropriate to a criminal justice system in the 19th century. It is not a system which is appropriate to the 20th century, let alone to the next millennium. As we approach the next millennium I strongly suggest that this Victorian system should be abolished. We will never have speedy trials of serious offences while hardened criminals are allowed to take advantage of a system which is not appropriate to the age in which we live.
There is no argument between the Opposition spokespersons and me on this matter. We discussed this in detail during the debate on the legislation that both Deputies have referred to. Amendments Nos. 16, 17 and 26 are essentially their amendments which have been retabled. When we debated it I undertook to ask the Committee on Court Practice and Procedure, which is chaired by Mr. Justice Blayney of the Supreme Court, to carry out an examination and to review the preliminary examination system. I asked him to consider the extent of the delay that it might be causing as well as considering the issue of entitlement to request sworn depositions and the basis, if any, for restricting that right. I also asked him to consider whether the procedure should be abolished. That committee was set up to assist in examining these complex matters.
As recently as seven or eight years ago the committee examined the matter, obviously because an Opposition Member had asked the then Minister for Justice whether this procedure should be abolished. At that time the committee said it should not be abolished because it was valuable for some cases. However, I share the view that it looks as if preliminary hearings can be abused by people who want to delay coming to trial by using this system.
I asked the committee to examine it and it issued an interim report, but it raised further issues which I have asked it to consider before I receive its final report. It is meeting again on 18 October. The committee is made up of a wide range of people with expertise in court procedure and practice. It is not the right way to change something like this by way of amendment. It is appropriate to use the system in place, that is the Committee on Court Practice and Procedure, and to let it look at the entirety of the issue and report back to me. As soon as I receive its report I will take whatever action is called for. It may recommend that it should be modified or abolished.
Deputy O'Donnell raised the issue of writing down everything by hand. I have asked the various court rules committees to look at such issues. I have also asked Mrs. Justice Denham to look at these systems, which in my view have become very outdated, to see how they can be changed. The rules committees of the courts are the ones that actually change the rules, not the Minister for Justice. However, I can given them an indication of areas where it is appropriate for the rules to be changed. I will come back as quickly as I can having received the report from the Committee on Court Practice and Procedure.
The issues raised by Deputies are clearly ones where there is plenty of practice and procedure they can quote to show how the system has been used to lengthen the time people take to reach trial. Equally, there may be cases where the system is beneficial. I ask Deputies not to press their amendments. The Committee is examining the matter and has given me an interim report which it is now finalising. I will come back with any recommendations.
That is quite acceptable. I look forward to the Minister returning to this area. As the Minister said, there is no party political row in this regard. The point is to speed up the process and there is all party support for that.
Is Deputy O'Donoghue withdrawing amendment No. 26 when we reach it?
I will give the matter due consideration between now and then.
That is the Deputy's entitlement. Amendments Nos. 18 and 19 are related and may be discussed together by agreement.
I move amendment No. 18:
In page 11, before section 14, to insert the following new section:
"14.—Section 2 of the Prosecution of Offences Act, 1974, is hereby amended by the insertion of the following subsection:
(12) (a) The Director shall be capable of giving, and may be required to give, evidence concerning the functioning of his office, the policies and procedures adopted by his office, and the annual report made pursuant to section 3(6), to any committee of the Oireachtas duly authorised to receive such evidence in accordance with the law for the time being related to such committees.
(b) Paragraph (a) of this subsection shall not be construed as requiring the Director to give evidence in respect of decisions made in respect of, or the conduct by him of, any particular prosecution or proceeding.".
The purpose of this amendment is to revisit an area which is of particular interest to this committee. It is a matter which we have debated with the Taoiseach in the Dáil in relation to the Compellability of Witnesses and Privileges Bill which deals with the power of the committee. This section deals with the Office of the Director of Public Prosecutions as established by the Prosecution of Offences Act, 1974. I am proposing to amend section 2 by adding a further subsection providing that the DPP may be called before a Dáil committee. At present the only person who can inquire into the conduct of the DPP and his office are the members of a committee appointed under section 2(9) of the 1974 Act in circumstances where the Government is considering dismissing the Director. There is no mechanism for publicly inquiring into the exercise by the DPP of his functions in circumstances where a dismissal does not arise, in other words, inquiring into the operations of the office.
Subsection (5) provides that the DPP shall be independent in the performance of his functions and I stress that my amendment does not interfere with that independence. It is not suggested that the committee would have any power to instruct the DPP or to tell him how his own functions should be performed. It is, rather, that the DPP would explain to the committee how he performs those functions.
There is already a provision in the 1974 Act for the Attorney General and the DPP to consult together from time to time in matters pertaining to the exercise of the functions of the director. It has never been suggested that that section compromises the independence of the Director. Further, it is specifically provided in the amendment that the Director shall not be required to give evidence to the committee relating to "decisions made in respect of, or the conduct by him of, any particular prosecution or proceeding". The amenability of the Director to our committee would not be to question the Director in relation to any particular prosecution, individual or case. It would be to invite the Director to democratically discuss problems raised in the generality of the prosecution service. For example, the Director is on record as saying that there is a need for a unified prosecution service. He is also on record as saying he is unhappy that there are absurd duplications in the present division of responsibilities between his office and State solicitors around the country.
There are issues which this committee has a legitimate interest in discussing with the Director from time to time, for example, concerning prosecution policy in child abuse cases generally. It is appropriate to raise this while there is another amendment which pertains to the office of the DPP. A greater degree of accountability and input to the democratic functions in which we are involved would not prejudice the independence of the DPP. There is no attempt by any Member of this committee to interfere with that independence. There is quite a difference between accountability and independence. That is the purpose of this section.
Amendment No. 19 introduces a greater degree of administrative accountability to the Director's function and office, in relation to the provision of an annual report. At the moment, the only way to extract any statistical information in relation to the operations of the Director's office; for example, to find out rates of prosecution, how long it takes for cases to be processed through his office, how many staff there is and what other resources are needed; is to table questions to the Taoiseach, who is responsible to the Dáil for the operation of that office. This is quite a cumbersome method of extracting routine and statistical information. It is in the public interest that our prosecution service has an opportunity of contributing to an annual report, similar to that of the Ombudsman, the Garda Commissioner or other independent office holders, who are used to getting annual reports. They are a vehicle for accountability and debate. My amendment provides for an annual report which could be debated in the Houses of the Oireachtas. This is the purpose of those amendments. I look forward to the Minister's response.
As Deputy O'Donnell has made quite clear, these amendments relate to the office of the Director of Public Prosecutions. The legislation which covers the Director is the Prosecution of Offences Act, 1974. This matter is appropriate for consideration in the context of the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Bill, 1995, which is before another committee. I trust Deputy O'Donnell, or whatever party spokesperson is taking that Bill, will table these amendments there. This is not an appropriate vehicle for them. I know that Bill sets out in detail the persons who may be called before the Oireachtas committees and their obligations and rights. Deputies will be aware the Taoiseach has informed the Dáil that the Compellability of Witnesses Bill will be amended. In the Dáil on 21 November, 1995 he stated:
Following consideration by the Government of the issues involved, it has been decided that the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Bill, 1995 will be amended to allow for the compellability of the Director to attend before a committee, to be designated, in order to answer questions on statistical and general policy issues arising from the annual reports which it is envisaged the Director will henceforth publish.
It appears that Deputy O'Donnell has already succeeded in most of what these amendments contain through her lobbying of the Taoiseach and that he has already agreed that this compellability will now be available for the DPP. Perhaps it is more appropriate that Deputy O'Donnell would withdraw the amendment from this Bill and ensure it is properly and widely discussed at the committee which is dealing with the matter.
I recall the commitment given by the Taoiseach or the Tánaiste — I cannot remember which. It was certainly a Member of the Cabinet who gave a commitment that these matters would be implemented, that the DPP would be compellable and amenable to a Dáil committee and consideration of an annual report. That was some time ago. I know that a sub-committee of the Select Committee on Finance and General Affairs was established to examine the technical details of that Bill. I understand it has not met in many months and there is some difficulty in relation to this particular section about the DPP. For that reason this is an opportunity for us to expedite this matter, given that there is a Government commitment. We are aware on this committee, from private correspondence with the Director, that he has a problem with this proposal. It is not something which should be left to fester in a committee which is not sitting. Since there is a Government commitment on this, that the Taoiseach has given a statement to the Dáil indicating that the Director will be amenable to a Dáil committee and that we will have an annual report of the Director's office, it is an appropriate proposal. I will withdraw the amendment but I would like the Minister to ascertain the status of the deliberations at the other committee. I understand it has become bogged down and has failed to resolve this particular matter. I look forward to the Minister's response. This issue is something which this committee is particularly interested in and we have been engaged in private correspondence with the Director on it. It should be resolved, given that it has cross party support.
The committee and I share Deputy O'Donnell's concerns. However, I am not sure if the Minister can adequately answer the question in relation to how the Bill stands at committee. I have circulated a copy of a letter dated 30 September which I received from Deputy Jim Mitchell, the Chairman of the Select Committee of Finance and General Affairs, which is dealing with the matter. It is a matter which will be on our agenda in private session later on this evening. This will give Deputy O'Donnell and other committee Members an update on the present position. The content of the letter will probably bring matters up to date to a greater extent than the Minister might.
I understand that subcommittee met Minister of State, Avril Doyle in September. She has taken away amendments to have them examined. There has been some progress. That is why the intent of these amendments tabled by Deputy O'Donnell will probably soon become part of other legislation.
I withdraw the amendments and await an update on the correspondence from the other committee.
I move amendment No. 20:
In page 11, before section 14, to insert the following new section:
"14.—(1) In this section, ‘sexual offence' means the offence of—
(a) rape at common law,
(b) rape under section 2 of the Criminal Law (Rape) Act, 1981,
(c) sexual assault within the meaning of section 2 of the Criminal Law (Rape) (Amendment) Act, 1990,
(d) aggravated sexual assault within the meaning of section 3 of the Criminal Law (Rape) (Amendment) Act, 1990,
(e) rape under section 4 of the Criminal Law (Rape) (Amendment) Act, 1990,
(f) unlawful carnal knowledge under sections 1 or 2 of the Criminal Law Amendment Act, 1935, or
(g) incest under the Punishment of Incest Act, 1908.
(2) Where it is alleged that a sexual offence has been committed, and the complainant, at the time such offence was allegedly committed, had an actual or mental age of less than eighteen years, the Director shall not decline to institute, or be liable to be restrained from instituting, criminal proceedings in respect of such alleged offence by reason only of any delay which may have occurred between the commission of the alleged offence and the making of the complaint, if it is likely that the conduct of the person against whom the complaint has been made, or the relationship between that person and the complainant, caused or contributed significantly to such delay.
(3) Without prejudice to the generality of the foregoing, the relationship between the person against whom a complaint has been made and the complainant shall be deemed likely to have caused or contributed significantly to such delay where—
(a) the person against whom the complaint is made was, at any material time, and for a sufficient period of time, in a position of trust or authority relative to the complainant, or
(b) the person against whom the complaint is made is or was in loco parentis to the complainant, or
(c) there was a marked difference between the actual or mental ages of the person against whom the complaint was made and the complainant.".
This amendment deals with the area where delay in making a complaint of a sexual offence prevents the prosecution of that offence. Ordinarily, a person has a right to an early trial and the deprivation of that right may entitle him or her to apply to the courts to prevent any further steps in a prosecution. Clearly, this is unsatisfactory where the delay has been caused in whole or in part by the person against whom the complaint has been made. This is particularly poignant in child abuse cases. At present, the matter is left to the discretion of the courts. There have been many cases in which an alleged abuser has evaded justice by taking an injunction by way of a judicial review of the decision of the DPP to prosecute, on the basis that there has been a lapse of time which precludes him getting a fair trial. The Supreme Court has in one case recognised that special circumstances may arise in the case of allegations of sexual offences, particularly offences against children. At present the tests applied relate to domination or threat or intimidation. This is something which needs statutory direction. I suggest that the tests applied in such child abuse investigations and prosecutions should be statutory rather than judicial. The test I propose is a likelihood that the conduct of the person against whom the complaint has been made or the relationship between that the person and the complainant caused or contributed significantly to the delay. It will be seen that specific but non-exhaustive examples of relationships which would be deemed likely to have caused or contributed significantly to the delay are given, namely a position of trust or authority, somebody being in loco parentisor a marked difference in the actual or mental ages of the alleged perpetrator and the complainant.
This is not academic, it happens regularly. Either a decision is made by the Director not to prosecute because of lapse of time in child abuse cases or a person against whom serious allegations have been made takes a civil action in the courts to stop a prosecution by the DPP on the grounds of delay. I know of several cases where a delay or lapse of time has been used by alleged abusers to successfully stop prosecutions. Delay is a feature of child abuse cases in that children or young adults do not report abuse until they are out of the control of the person who has abused them. It is wrong that delay can be used by such a person to halt a prosecution because they have contributed to that delay. They have been in a position of power or control over their victim. Many victims who have written to me feel devastated because a decision has been made by the DPP not to prosecute due to delay and the events have taken place over a period of time long past. They have not been consulted. Even if a decision has been made by the Director to prosecute and the Garda want the case to go ahead, that person can take a civil case to judicially review the decision of the Director and in many cases they have been successful. There is a need for direction to be given in the prosecution of child sexual abuse cases.
It is doubly unfair that the alleged accused can halt a prosecution through skilled lawyers and by proving that due to lapse of time they cannot get a fair trial, whereas there is no parallel right for a victim to challenge the decision of the DPP not to prosecute. In other words, the balance is tipped in favour of the person against whom the complaints have been made. He may challenge the decision of the DPP to prosecute, whereas the victim cannot challenge a decision of the DPP not to prosecute. This is unfair and is a loophole which is being used by paedophiles to avoid prosecution. I have spoken to many victims who feel that this has to be changed. Delay in child abuse cases should not be grounds for stopping the prosecution. The prosecution will have to prove a case beyond a reasonable doubt. All those matters should go to the court of trial. It should not be given as a gift to the person. The delay that he has enjoyed as part and parcel of the abuse of a young person can be used to his benefit by stopping the prosecution. That is the point of this amendment and I look forward to the Minister's response.
We must start from the fundamental premise that the DPP in examining a file regarding an indictable offence, irrespective of its seriousness, must be motivated in his decision as to whether that case should proceed by one factor only, which is the likelihood of the case succeeding, and if the DPP is of the opinion as an experienced lawyer that the case will not succeed the question arises as to whether the resources of the State should be wasted in pursuing such a case. The powers conferred on the DPP are extremely broad and serious and have to be considered in great depth. In dealing with offences the DPP has to give consideration to the facts as they are presented to him and have regard to the criminal law of the land. It is my fundamental belief that the DPP will always proceed with a case where he believes that there would be on balance a successful prosecution. I do not believe that the fact there was a delay alone in the complaint being made would sway the DPP against taking a case unless he was of the opinion that the delay was of such a magnitude that the prosecution would not be able to substantiate its case. I am also of the view that the DPP will go ahead with a case if he feels on balance that it will succeed as opposed to being 70 or 90 per cent correct. Although I sympathise with much of what Deputy O'Donnell said I am not sure that the enpowerment conferred on the Oireachtas by this amendment to delimit the powers of the DPP is either practically or even theoretically sensible. I do not believe that the Director would decline to institute criminal proceedings by reason of a delay only if he were of the opinion that the case would succeed notwithstanding that the delay existed.
The amendment again seeks to impose restrictions on the DPP's discretion regarding the prosecution of certain serious sexual offences. I have great sympathy for the number of cases, some of them well documented and given high profile in the media, where people, 20 or 30 years later, have been able to face up to something which happened to them when they were children and they find that the prosecution cannot be taken when they have accused somebody of abusing them as children. Deputy O'Donnell's amendment deals only with certain serious sexual offences and there is no attempt to restrict the DPP's discretion in respect of other serious offences such as murder or manslaughter; huge trauma is caused when a prosecution does not go ahead after someone is murdered.
I have a number of concerns with this amendment and Deputy O'Donoghue has mentioned some of them. The amendment is based on the assumption that the DPP refuses to prosecute for serious offences simply because there has been a time lapse since the alleged crime. I do not believe that is the way the DPP exercises policy with regard to serious sexual offences. On an earlier amendment we talked about the possibility of the DPP being able to come to the relevant committee and talk about general policy issues and it would be valuable and beneficial for the DPP of the day to explain the policy basis on which he decides whether the circumstances are right to allow for a prosecution to be taken.
The DPP does not have the facility to make known the policy reasons for not taking cases to court. Lack of knowledge leads people to assume wrongly that the passage of time is the only reason the DPP does not prosecute a case when a person, after 20 or 30 years, has had the courage to be able to make accusations. The DPP must take into account whether there is a possibility that a prosecution can proceed. If a long time has passed, that calls into question whether a reliable witness is available to take part in a trial. The DPP must also take into account whether the passage of time has removed the possibility of an effective prosecution. The fact that the person against whom the complaint is being made may have contributed to the delay should not be a ground to compel the DPP to take an action, regardless of all the surrounding circumstances, particularly the reliability of evidence.
I do not have a role in directing the DPP in what he might do but I have raised this issue with him in informal discussions, mentioning that newspapers say he refuses to prosecute only because of the passage of time. He has made clear to me that his deliberation on whether a prosecution should go ahead is much wider than the issue of whether there has been a delay. If the overall evidence in a case is weak, I do not know whether it is of any great benefit to the traumatised parties who might like to see someone prosecuted, to give them a day in court with a weak case, rather than the DPP deciding, however painful it might be to do so, that he cannot get a conviction. I do not think there is any point pursuing a prosecution for the sake of it.
However, I am greatly concerned about the seriousness of some allegations made in cases where a long time has passed. I am satisfied the DPP takes into account everything available to him when deciding. He is a caring person and understands the huge trauma caused when someone finally feels he or she can take a case, but the DPP must decide a prosecution cannot go ahead. I am concerned about this amendment restricting the DPP. He must have great latitude and discretion but if we begin to restrict that it may come back to haunt us and prove not to be satisfactory.
I note the provision in subsection (2) which appears to prevent the court reviewing a decision of the DPP to prosecute in respect of an offence. This subsection states that the director shall not decline to institute or be liable to be restrained from instituting criminal proceedings. There must be a doubt about any provision of this sort which attempts to oust the jurisdiction of the courts. They have already set down standards of fair procedure and principles with regard to the right to a fair trial. I doubt they could be excluded totally from reviewing a decision of the DPP. Under the circumstances I cannot accept this amendment.
The Minister touched on something when she said we do not know the basis or criteria on which the director makes decisions. They are not published as they are in Britain, for example. If one inquires of the Crown Prosecution Service about the basis for decisions across a whole range of offences and the criteria for proceeding with prosecutions, one is given the published criteria for different categories of offences.
The problem is that we have no input or knowledge of how decisions are made and in some cases the decision not to prosecute is inexplicable, particularly in sexual abuse cases. Further, the victims are never consulted and no reasons are given. It might happen that a local garda would unofficially tell the victim or the victim's parents about the decision not to prosecute. The process is exclusive of the victims, most of whom do not want retribution but rather to be believed and treated with courtesy. The prosecution service is not responding to the needs of victims, who are part and parcel of the criminal justice system which could not operate without co-operating victims who assist as witnesses in prosecutions.
We do not know on what basis the director decides to launch a prosecution in a particular case. The Supreme Court said that such decision of the DPP need not relate exclusively to the probative value of the evidence before him. It went on to say that many other factors may be appropriate and proper for him to take into consideration.
We should have a dialogue with our prosecution service and I would not wish to personalise this with the current Director. This is an administrative matter to do with prosecution policy in which this committee has an interest. One of the most important arms of our justice system is the prosecution service, which should be efficient and understood by democratically elected politicians. If we had an annual report and a courteous, informative dialogue with the Director, it would go a long way to dispel the speculation and ease the hurt experienced by victims. In many cases they are excluded from the process and that cannot continue. The prosecution service should not be beyond the normal courtesies and standards in a democracy.
The purpose of this amendment was to raise delay as an example of the issues we wish to discuss with the DPP. We want to discuss the criteria on which decisions are made to prosecute, whether he needs more resources and whether he has resources at his disposal to deal with the backlog. We wish especially to mention child abuse cases —of which 4,000 are reported annually to the health boards — and we want to know whether some or all of these will be prosecuted and what extra resources will be needed to cope with that explosion of allegations. All these matters should not be left unaccounted for and we can ensure that without interfering with the independence of the Office of the DPP. I withdraw the amendment.
I thank Deputy O'Donnell; it was useful to air the points made today because they are matters of concern. Lest there be any misconceptions, I have received letters from people who have made complaints after many years delay and who praise the way individual gardaí have handled the cases. At no point in the system does the DPP deal on a one-to-one basis with the victims. I would not like there to be a perception that he meets victims and deals with them less than courteously. In recent years much more effort has been made to ensure that specially trained gardaí are available in all Garda stations and central district offices to deal with people who must provide this type of witness. There has been a huge improvement in the way people are handled; it must be a huge trauma for them to learn that a case will not be prosecuted. There may be instances where people hear such information in a haphazard manner. However, my information is that there is usually a one-to-one relationship in such difficult cases with a member of the force. I will examine the matter to ensure the system is working properly and that people hear in a caring manner whether a prosecution will be taken. They will also hear this information from their lawyers.
I move amendment No. 21:
In page 11, before section 14, to insert the following new section:
"14.—Section 10(1) of the Criminal Justice Act, 1984, is hereby amended by the insertion of the following in the last line thereof:
‘save that any period for which the person is not available to assist in the proper investigation of the offence by virtue of any challenge to the legality of his detention shall not be included in reckoning a period of detention for the purposes of subsection (9) thereof'.".
The amendment seeks to amend section 10 of the Criminal Justice Act, 1984, to close a loophole which was exposed in the recent attempts to investigate a murder. Under section 4 of the 1984 Act, a person may be detained without charge for up to 12 hours if this is necessary for the proper investigation of the offence in question. Under section 10 a person may be rearrested and detained without charge for a further 12 hours with the authority of a district judge who is satisfied that further information has come to the knowledge of the Garda since the person's release.
It will be recalled that in a recent case where a suspect in a murder investigation was arrested under section 10, most of the 12 hour period was spent in a legal challenge to the validity of his detention. Although the High Court in that case upheld the validity of his arrest, the 12-hour period was up by the time it reached that conclusion and, accordingly, the man had to be released. The amendment proposes that the clock should stop running during the period that the person who has been rearrested is unavailable to assist with the investigation of the offence because he is challenging the validity of his detention. The point of the provision permitting rear-rest is defeated if this loophole is not closed.
It should be noted that there is already a provision to stop the clock running in order to provide time for rest and medical attention. Everybody is entitled to the presumption of innocence, but the Garda was equally entitled to detain him to investigate the offence. However, it was unable to do so because of the loophole. I look forward to the Minister's response to this aspect which arose recently and which could be easily changed.
The period of detention generally requires attention. The Oireachtas already passed a provision allowing seven days detention under judicial review in relation to drug dealers and people may be detained for 48 hours under the Offences Against the State Act. However, a strong argument can be made for extending the period of time during which an accused person in a serious criminal offence may be detained. The current position is two periods of six hours and a rest period of eight hours, but in practice the 12-hour period, or two periods of six hours, is dissipated by virtue of the fact that people can insist on consulting their solicitor and other matters during that time.
Caution must be exercised in terms of extending the period, but a growing body of opinion inside and outside the Garda Síochána feels the time period currently available to it is insufficient in relation to the investigation of serious offences. In the context of the amendment, I ask the Minister to thoroughly examine the entire matter of detention.
My Department is concerned about what happened in the recent court case with regard to periods of detention under section 4 of the Criminal Justice Act, 1984. A review of the section has commenced and it is clear it only allows periods where a person is receiving medical attention or resting to be excluded from the period of detention. I intend to introduce an amendment on Report Stage in relation to this matter because it needs to be tightened up immediately. It was not the intention of those who introduced the 1984 Act to allow the 12-hour period to be dissipated in legal challenges. The point of the provision was to allow the Garda to question people and to get evidence. If the Deputy withdraws her amendment, I assure the committee I will return to this matter on Report Stage.
Regarding Deputy O'Donoghue's wider point about extending the 12 hour period, the length of detention was extended in the Criminal Justice (Drug Trafficking) Act. This legislation is now in place and I pay tribute to all those involved, including Garda, Customs and Naval officers, in the huge haul of drugs in Cork in recent days. Although I cannot go into detail, I also pay tribute to the local people for their involvement. The availability of the new drug trafficking Act was an important weapon in the hands of the Garda in bringing about the arrests. The period of detention was extended in that Act, but I cannot give a commitment that the element raised by Deputy O'Donoghue will be examined between now and Report Stage. However, I will consider it in the fullness of time.
I will withdraw the amendment on the basis that the Minister will introduce an amendment on Report Stage to meet the requirement.
I move amendment No. 22:
In page 11, before section 14, to insert the following new section:
"14.—In any case where a person who has been convicted of a criminal offence appeals against the sentence imposed therefor, the court hearing the appeal shall, before determining the appeal, invite the views of the prosecution in relation to the appeal.".
The amendment is prompted by my recollection of the decision in the sequel to the X case when the person convicted of the offence appealed his sentence and it was reduced from 14 to four years. All sections of the community were outraged by the court's decision to reduce his sentence. It was noted then that there was no role for prosecuting counsel to defend the sentence. While the defence counsel vigorously argued for a reduction in the sentence, there was no role for the prosecuting counsel or the State to defend it.
I recall a debate in the House about the sentence and the need for a review of the law. The then Minister of State at the Department of Justice, Deputy Burton, accepted that point. She indicated that the Department was examining the law in this regard to allow a role for prosecuting counsel to defend sentences. The amendment proposes such a role for the prosecution during an appeal against sentence. At present, the prosecution does not seek to influence the outcome of an appeal against sentence. This appears to be a matter of practice rather than law and it is no longer appropriate for a number of reasons.
The first is that the criminal process is conducted under the adversarial system. There appears to be no reason why an appeal against sentence should not be conducted under such a system also. It is odd that a defence counsel can vigorously advance mitigating factors on behalf of the defendant. In the X case strong arguments were made by the defence for reducing the sentence from 14 to four years, yet the State team was silent. It is not so much a matter of law but a code of conduct that State counsel do not get involved in defending sentences and this is wrong. If defence counsel is vigorously arguing for a reduction of sentence the State has to vocalise the need to defend the sentence that has been imposed. It was unfair that the State did not go the whole way in defending that sentence. The State, as a prosecutor, has a very real interest because it represents the people through the criminal process. It is not the judge's function to represent the State or to reflect community desires in particular cases. The State team has a role which should be advocated in court. I recall at the time there was huge outrage at the scale of the reduction of the sentence and the fact that it was revealed there was no effort made by the State to defend that sentence. I know we have amended our law to allow the State to appeal against lenient sentences. That is a good change in the law. I do not know how often it is used but a corollary of that should be the State defending sentences when someone appeals the severity of a sentence.
I have listened to the Deputy and I am not convinced the amendment is needed. I understand in an appeal against a sentence, the prosecution may make a submission. There is no evidence they have had difficulties doing so. Deputy O'Donnell's amendment only says the court can invite the views of the prosecution. It does not say that they have to give their views. Essentially the amendment covers what is there in practice. We have tried to see if there is any complaint from the prosecution. I do not know enough about the appeal trial in the "X" case to say whether the prosecution sought to make an appeal and was stopped but I can find no such evidence. In my review of the Law Reform Committee's report on sentencing, these issues are being considered. The Law Reform Commission, in its report, recommended against making specific submissions by the prosecution at the trial stage on the appropriateness of a particular sentence. It says in its view the facts of the case, the sentencing precedents and guidelines, if any, and the aggravating or mitigating factors should all speak for themselves. It should be quite unnecessary for prosecuting counsel to demand or seek a particular sentence. That report was just issued and it took about five years to produce. It produced a consultation paper in 1993 and has just published a full report.
If the Law Reform Commission is correct in saying it would not be appropriate for the prosecution to demand or seek a particular sentence then it would seem to follow it is saying it would be inappropriate to press the prosecution at appeal stage to give its views on an appeal of a sentence. That is what the Law Reform Commission says on this issue. I am considering this. The DPP is entitled to appeal, as has been said, to the Court of Criminal Appeal if there is an unduly lenient sentence where a person has been convicted. The prosecution has a role if it is unhappy with a lenient sentence although I cannot give the number of cases where it has been used. It has been used by the DPP. The prosecution can appeal but it is not always successful. The issues raised by the Deputy are under consideration along with the Law Reform Commission's report on sentencing. I am not convinced this amendment is necessary because the prosecution can do this as it stands.
I understand the Law Reform Commission's interim report in 1993 looked at sentencing and noted there was no tradition of interfering or influencing the court in sentencing. It is easy to forget the general outrage at the reduction of that sentence from 14 to four years with no advocacy by the State or determination by the State to defend that sentence. The only thing the Court heard were the mitigating factors to reduce the sentence on behalf of the defendant. I remember how badly everybody felt at the time. We can look up the Dáil record. The Minister of State Deputy Burton said she was looking into the possibility of introducing a role for the State in defending the sentence similar to the principal we have legislated for, in that the State would have a role in appealing a lenient sentence. The State should be involved in going the full way with the victim in a case, defending the sentence imposed if it is appealed. If defence counsel gets in a brilliant line of reasoning — that the person's business is destroyed or the sentence would be terribly prejudicial — the State should be able to speak for the victim and show why the Court gave a 14-year sentence. There is space for the Minister and the Department to revisit cases. Hard cases are good ones to revisit because when such a reduction of scale of sentence was handed down, given the facts of that case — the accused had pleaded guilty and had blamed others up to the last minute — it was an unfair sentence and everyone agreed on that. The State let the victim down in that case and in future cases the State should be there to defend a sentence. It says in the code of conduct for the Bar that counsel should not attempt to influence the court in relation to a sentence. That flies in the face of something we have legislated for here, having legislated for the State team, if it is prosecuting, to appeal against a lenient sentence. Defence counsel is influencing the court when it argues for the defendant's sentence to be reduced. This does not ring true. It looks unfair and as if there is an imbalance in favour of the accused and against the victim. I ask the Minister to look at the matter again.
Is Deputy O'Donnell saying that in the Court of Criminal Appeal that there is no victim impact assessment? I thought there was.
In the "X" case, although I do not want to go back to particular cases, it was the case that there was no defence by the prosecution on the issue of sentence. It would have heard the victim impact earlier in the trial but this was an appeal on sentence. At that point the State team had nothing to say. All we heard was the defence team saying the sentence should be reduced and it was substantially reduced. There was no voice for the reasons for the heavy sentence.
The amendment has been withdrawn but Deputy O'Donnell's amendment, with respect, would not make it obligatory on the prosecution and it might respond by not taking up the invitation. What the Deputy is saying might have some validity if the amendment stated that the prosecution was obliged to make a submission but the amendment only says "the court hearing the appeal shall, before determining the appeal, invite the views" but does not say "and compel" the prosecution to give those views. As it stands, there was nothing to stop the prosecution from making a case in the "X" case. It just did not do it.
There was a tradition that the State does not defend the sentence. That is what I am asking the Minister to look into.
I have already given a commitment to look into it. That is why I am not accepting the amendment because it does not fulfil what the Deputy wishes.
You have the draftsmen. If the political will is there you should not nit-pick about my draftsmanship. I think the Minister is clear about what I mean when I say that, at the moment, there is a tradition of the State not defending the sentence on appeal whereas the defence counsel will vigorously argue for a reduction. It was demonstrated in the X case, a celebrated case. Everybody is familiar with the facts. At that point there was a promise in the Dáil that this matter would be looked at. This promise has not been met and that is the purpose of my amendment. The Minister is nit-picking when she says that my drafting is not up to scratch. She knows what I mean.
There is a widespread public perception that it is the function of a prosecutor in a criminal trial to go in with all guns blazing and to be as biased as possible against the accused in order to get a conviction by hook or by crook. That is not so. The function of a prosecutor is to present the evidence fairly and clearly. Having said that, there is also a misconception about sentencing policy by the Judiciary. I have called for minimum or mandatory sentencing for certain very serious offences for the simple reason that, irrespective of who makes the arguments, more often than not the court must have regard for the legal precedent when imposing a sentence. We had a very eminent judge in a recent horrific case say that he wished he could impose a heavier sentence but that he could not do so because there were certain matters which he had to take into account in accordance with legal precedent. If one is speaking about imposing certain sentences for certain offences, then let it be known that, irrespective of who says what or when, judges' hands are tied. That may seem an extraordinary statement but it is true. If one wishes to change that, then one introduces a system of minimum or mandatory sentences for certain very serious offences. With due respect to Deputy O'Donnell, though I sympathise with what she is trying to achieve, much of what she has said may be academic.
My comments were not in the interest of nit-picking but we are dealing with statutory law. If the Deputy's intention in her amendment is to change the current practice, where the prosecution does not come in where there is an appeal against a sentence, then adopting her amendment will not do that. That is all I am saying. In agreeing with any of the Opposition amendments or my own, I, as the Minister who has to prepare the law, must be sure they are doing what we want them to do. It would also be beneficial to raise the points the Deputy made with the DPP when he comes to a committee. If it is a matter of practice or policy in its broadest sense that the prosecution sits by as an appeal goes ahead, then that is something which can be changed. It does not need an amendment to the law to do that. We should guard against being terribly prescriptive about some of these issues where it is only a matter of practice which has grown up as opposed to a flaw in the legislation. My understanding — and I am correct in this — is that there is no difficulty for the prosecution intervening. It is just a practice and that is a practice which the lawyers can change.
I withdraw the amendment.
Amendment No. 29 is consequential on amendment No. 23 and both may be taken together.
I move amendment No. 23:
In page 11, before section 14, to insert the following new section:
"14.—(1) Any person who has in his possession, whether lawfully or not, a controlled drug for the purpose of selling or otherwise supplying it to another, in contravention of regulations made under section 5 of the Misuse of Drugs Acts, 1977 and 1984, with intent to obtain substantial monetary benefit shall be guilty of an offence.
(2) For the purposes of this section ‘substantial monetary benefit' means a payment of £10,000 or more whether made in money or goods or otherwise.
(3) A Court or jury as the case may be shall be entitled to hear in evidence the opinion of any Garda or Customs Officer as to the street value of the controlled drug in question in any case notwithstanding any rule of law or evidence to the contrary.
(4) Section 15(2) of the Misuse of Drugs Act, 1977 shall apply to an offence under subsection (1) of this section.
(5) In any proceedings for an offence under subsection (1) of this section, where it is proved that a person was in possession of a controlled drug he shall be presumed, until the court is satisfied to the contrary, to be in possession of that controlled drug with intent to obtain substantial monetary benefit.
(6) A person found guilty of an offence under subsection (1) of this section shall be liable on conviction to a fine of such amount as the court considers appropriate and/or at the discretion of the court to imprisonment for life or to such lesser period, subject to the provisions of subsection (7) of this section, as the court shall determine.
(7) Where a person (other than a child or young person) is convicted of an offence under subsection (1) of this section, the court shall in passing sentence specify as the minimum period of imprisonment to be served by that person a period of not less than 10 years imprisonment.
(8) The power conferred by section 23 of the Criminal Justice Act, 1951, to commute or remit a punishment shall not, in the case of a person serving a sentence on him on conviction of an offence under subsection (1) of this section, be exercisable before the expiration of the minimum period specified by the court under subsection (7) less any reduction of that period under subsection (9) of this section.
(9) The rules or practice whereby prisoners generally may earn remission of sentence by industry and good conduct shall apply in the case of a person serving a sentence passed on him on conviction of an offence under subsection (1) of this section and the minimum period specified by the court under subsection (6) shall be reduced by the amount of any remission which he has so earned.
(10) Any powers conferred by rules made under section 2 of the Criminal Justice Act, 1960 (including that section as applied by section 4 of the Prisons Act, 1970), to release temporarily a person serving a sentence of imprisonment shall not, in the case of a person serving a sentence passed on him on conviction of an offence under subsection (1) of this section, be exercisable during the period for which the commutation or remission of his punishment is prohibited by subsection (8) of this section unless for grave reasons of a humanitarian nature, and any release so granted shall be only of such limited duration as is justified by those reasons.
(11) A prosecution for an offence under subsection (1) of this section shall not be commenced without the consent of the Director of Public Prosecutions.".
This amendment would provide for a new form of criminal offence for dealing with a controlled drug with intent to obtain substantial monetary gain. The purpose of this amendment is to provide for a minimum sentence of ten years imprisonment for any person found guilty of dealing in controlled substances. The substantial monetary benefit is defined as a payment of £10,000 or more, whether in money or goods. The amendment also stipulates that a person found in possession of controlled substances or, to put it in plain language, illegal drugs, would have to satisfy the court that the controlled drug was not in his possession with the intention of obtaining substantial monetary benefit. The onus of proof is shifted from the State to the individual in possession. The amendment also prevents the temporary release of a person convicted of such an offence.
In the context of this amendment may I join with the Minister in warmly congratulating the Garda, the Customs and the Navy on the massive haul of illegal drugs in Cork. That seizure is a tribute to the authorities. However, it underlines the seriousness of the problem we have. It underlines the fact that, like it or not, there is a considerable amount of drug trafficking off our shores, within our territorial seas and our country. It is time for the European Union to recognise that fact and to help us establish a European coastal protection unit in this country to combat this dreadful scourge. It is of fundamental importance that we indicate through tough legislation that any person who is convicted in this country of dealing in drugs for substantial monetary benefit will suffer the consequences, and that those consequences will be extremely tough.
Nineteen ninety three is the last year for which we have figures available in relation to sentences handed down by the Irish courts for dealing in drugs. Approximately 73 cases were heard and the average sentence during that period was less than two years. It is accepted that the Oireachtas, as far back as 1977, felt that there was a very serious problem. Subsequently, imprisonment of up to 14 years was provided for. After that, recognising that the problem had become even more serious, the Oireachtas allowed for life in prison to be imposed for this heinous offence. Unfortunately, for reasons which I cannot determine, the courts have not handed down sentences commensurate with the view of the Oireachtas as expressed in two different pieces of legislation. This may be for reasons of legal precedent. In those circumstances I feel there is an unanswerable case for the Oireachtas to legislate. If an individual is going to deal in drugs for substantial monetary gain, he should serve a sentence of no less than ten years. He should not get temporary release from an Irish prison, though the usual remission rules would apply. This is the deterrent required to tackle a problem which threatens to engulf and overwhelm society. The marches taking place in certain parts of Dublin will be replicated in ten years in other cities and towns unless the problem is dealt with immediately. Because the problem is relatively contained we now have a unique opportunity of succeeding in our battle against the sale of illegal drugs. However, if that battle is not won within the next four to five years, I fear it never will be. I do not suggest that this is a panacea to the entire problem, but I offer it as a small though telling contribution to the battle against drug trafficking.
Amendment No. 29 is consequential on amendment No. 23. Deputy O'Donoghue raised this matter on a number of occasions, particularly during the debate on the Criminal Justice (Drug Trafficking) Act. I must repeat my statement about the concept of mandatory sentences. Successive Ministers for Justice have opposed mandatory sentences, except in cases of life imprisonment for murder. They have done so on the basis that it is more appropriate for the Oireachtas to fix maximum penalties and for the courts, having heard all the circumstances involved, to have the freedom to decide the level of sentence to be handed down.
There are times when everyone objects strongly to the level of sentences being handed down because we judge cases from information provided by the media. Everyone makes judgments regarding appropriate sentences based on what they hear because they do not always have access to the full court proceedings. As Deputy O'Donoghue stated, it is open to the courts to hand down a penalty of life imprisonment in serious drug trafficking cases. He also quoted figures from 1993 regarding the average sentence handed down. A serious drug trafficker will often be sent to prison for a much longer period than the average two year sentence to which Deputy O'Donoghue referred. However, the crime for which they receive a long sentence is over and above that of drug trafficking and may involve armed robbery, etc. Perhaps it is incorrect to state that the average sentence for drug trafficking is two years and infer that serious criminals are receiving very lenient sentences. As was stated in connection with the last amendment, the DPP has the power to appeal against unduly lenient sentences.
Deputies are aware that the Law Reform Commission recently issued its document on sentencing which is being studied, examined and debated by my Department and those involved in the judicial system. I have already received submissions from people which stress that mandatory sentences should not be introduced while others state that they should. There are good reasons which suggest that mandatory sentencing is not the correct way forward. I remain of the opinion that there are situations where the introduction of mandatory sentences might assuage the fears of those calling for longer sentences but they may lead to injustice. There may also be situations where a sentence longer than the mandatory term might be required but the courts would have their hands tied by the legislation. In those circumstances, I am not willing to accept the amendment.
Amendment No. 23 suggests that mandatory sentences would be handed down in circumstances where there was a payment of £10,000 or where the goods involved are valued at £10,000. There are occasions when quantities of particular drugs do not realise £10,000 but they might have a more damaging effect if sold to drug users and the general public. Such drugs might only be worth £1,000 but they might cause much more damage to the system. Judges must be free to make assessments regarding the potential damage to drug users of the drugs trafficked in certain cases. For example, a person might be prosecuted for possession of £10,000 worth of cannabis while another individual is charged with possession of £1,000 worth of heroin which could cause much more damage and lead to the users becoming involved in crime. The courts must retain some jurisdiction and independence to decide on the nature of the evidence put before them. If there is a mandatory sentence, that independence has been removed to a degree.
To some extent I share the reservations expressed regarding mandatory sentences. However, there is a very worrying pattern in the replies to parliamentary questions tabled by Deputy O'Donoghue in connection with sentences imposed for drug related offences. It is very clear that, during the two year period to which the Deputy's questions refer, sentences were imposed which are contrary to the intent of the Legislature. We must again inquire whether the State has a role in appealing lenient sentences. There is legislation on the Statute Book which states that the State can appeal against a lenient sentence. What better cases are there than those involving drug related offences for the State to take a vigorous role in appealing lenient sentences? If a one year sentence is handed down for an offence which carries a maximum of 14 years imprisonment, a subliminal message is transmitted to the criminal community that they will get off lightly. That is not the message the Oireachtas has determined should be given to those involved in drug trafficking.
I ask the Minister to reconsider this issue. I recently tabled a parliamentary question regarding the number of cases in which the State appealed lenient sentences; I believe this occurred in only three instances. Such cases would provide an ideal opportunity for the State to vindicate the rights of the citizen by appealing a lenient sentence imposed for a drug related offence.
I join with the Minister and Deputy O'Donoghue in congratulating the Customs authorities and the Garda for the seizure of cocaine in County Cork. This illustrates that we are making progress in dealing with the problem at supply level and that co-operation is needed. However, a pincer movement is required for effective action at community level. That is the next challenge now that we are coming to terms with the international dimensions of drug trafficking. People are very concerned about the problem at community level, however, where there is alienation among citizens.
There must be a redirection in policing. When does the Minister expect to receive the new Garda Commissioner's proposals regarding a change in policing at community level to cope with vigilantism and the alienation of the people? Current policing methods are not satisfactory in dealing with the lower orders of drug traffickers and local pushers.
I am not sure you will get an answer today. We seem to have strayed from the import of the amendment.
If, as the Minister says, there is another substance which is far more lethal which is valued at less than £10,000 — it may only be worth £1,000 — and the court wishes to take a very dim view of that, this amendment in no way affects that. The court's discretion to impose sentences of up to life imprisonment will remain in respect of any drug trafficking offence. That is not an issue. Neither is it an issue if the court wishes to impose a greater sentence than ten years. I do not specify in my amendment that the court should leave it at ten years. All I say is that if the offence is one leading to substantial monetary gain, the sentence should not be less than ten years. If the court feels the offence warrants a greater sentence, it is open to the court to impose one. The amendment which I am pressing merely provides for a new offence in Irish law whereby any individual who deals in drugs to the value of more than £10,000 would be guilty of dealing in drugs for substantial monetary benefit and would suffer the consequences. Those consequences would be quite severe if this amendment were accepted.
On the basis that the same amendment was ruled out of order in the legislation dealing specifically with drugs, you cannot be surprised if it is ruled of order on this occasion.
Before Deputy O'Donoghue presses this amendment which has already been voted on and defeated — he is perfectly entitled to press it — perhaps it would satisfy him to know that, as a result of the Law Reform Commission report on sentencing, I am looking at mandatory minimum sentencing. People are not of one mind about this issue. Different lawyers will give very different reasons it should or should not be brought in.
I am aware of the intent behind this amendment. Perhaps Deputy O'Donoghue would allow me to look at the sentencing report and discuss it with the committee at a later date. I will be back to debate other legislation. I hope there will be an opportunity in this session, although I have not talked to the Whip yet about it, to debate that report. It has been a long time since these Law Reform Commission reports were discussed as reports rather than bits of reports. We need a full debate on sentencing and the Law Reform Commission's report is a good way of getting that issue onto the floor of the House. I ask Deputy O'Donoghue to consider withdrawing his amendment until we can revisit this issue when we are discussing that review of sentencing.
I would be very glad to consider that were it not for the fact that the Law Reform Commission came out against mandatory sentencing. There was even a suggestion that it would be removed in the case of murder. In those circumstances I regret that I must press the amendment. I feel very strongly about it, as does my party.
I move amendment No. 24:
In page 11, before section 15, to insert the following new section:
"15.—The expenses incurred by the Minister for Justice in the administration of this Act, shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.".
This is a standard provision and its insertion is necessary as a consequence of amendment No. 14 which provides for a seal in the District Court.
Amendment No. 25 has already been discussed with amendment No. 7.
I move amendment No. 25:
In page 11, before section 15, to insert the following new section:
"16.—The enactments specified in the Second Schedule to this Act are hereby repealed.".
Amendment No. 26 has already been discussed with amendment No. 16. You were non-committal then, Deputy, as to whether to press the amendment.
I move amendment No. 26:
In page 11, before section 15, to insert the following new section:
"15.—(1) Sections 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 of the Criminal Procedure Act, 1967 are hereby repealed.
(2) Where an accused person is before the District Court charged with an indictable offence the Judge shall, not later than the second appearance by the accused person before the court in respect of that charge, conduct an examination into whether the case is one which will be tried on indictment or by summary hearing.
(3) If, on the conclusion of the examination, the Judge is satisfied that the case must be heard on indictment (by reason of the election of the accused or the prosecutor in accordance with law or by reason of a finding that the offence is not a minor offence fit to be tried summarily) he shall forthwith send the accused person forward to the appropriate court for trial.
(4) A case which has been sent forward to the appropriate court for trial pursuant to subsection (3) of this section shall be listed for mention before the court of trial not later than 14 days from the date of the District Court order returning the accused person for trial.
(5) On the date upon which the case is first listed for mention before the court of trial, or on a subsequent date not later than 28 days from the date on which the case was first listed for mention before the court of trial, the prosecutor shall cause the documents specified in section 6 of this Act to be served on the accused.
(6) The prosecutor shall cause the following documents to be served on the accused—
(a) a statement of the charges against him,
(b) a copy of any sworn information in writing upon which the proceedings were initiated,
(c) a list of witnesses whom it is proposed to call at the trial,
(d) a statement of the evidence that is to be given by each of them and
(e) a list of exhibits (if any).
(7) Copies of the documents shall also be furnished to the Court.
(8) The accused shall have the right to inspect all exhibits.
(9) A prosecutor may cause to be served on the accused and furnished to the Court, not later than 7 days before the date for trial, or if after 7 days before the trial not without the leave of the Court granted after hearing an application by the prosecutor grounded on affidavit setting out the reason why the evidence was not previously served, a further statement of the evidence to be given by any witness a statement of whose evidence has already been supplied.
(10) On the hearing of an application of the type mentioned in subsection (9) of this section, the Court shall not grant leave to serve the further statement of evidence unless it is satisfied that there is a good and substantial reason as to why the evidence could not have been served earlier and that the interest of justice requires that the evidence be allowed.
(11) Section 20 of the Criminal Justice Act, 1984 is hereby amended in subsection (3) by the substitution of the following for paragraphs (a), (b) and (c):
‘by notice served by the prosecutor on the accused at the time of service of the documents required by section 15(6) of the Criminal Justice (Miscellaneous Provisions) Act, 1996.'.
(12) Section 20 of the Criminal Justice Act, 1984 is hereby amended by the substitution of the following subsection for subsection (6):
‘(6) A notice under subsection (1) shall be given in writing to the solicitor for the prosecutor.'.
(13) Section 20 of the Criminal Justice Act, 1984 is hereby amended in subsection (8) by the substitution of the following for paragraphs (a),(b), (c) and (d) of the definition of ‘prescribed period':
‘the period of 14 days from the service of the documents required by section 15(6) of the Criminal Justice (Miscellaneous Provisions) Act, 1966 on the accused person.'.
(14) (a) A trial of any offence specified in the Table to this section shall commence not later than 90 days from the date of the accused person's first appearance before the District Court unless a Judge of the High Court grants an extension of that period on the hearing of an application by either the prosecutor or the accused.
(b) On the hearing of any application for an extension of the time within which a trial must commence the High Court Judge shall not grant an extension unless he is satisfied by evidence presented on affidavit, or orally if directed by the Judge, that there is a good and substantial reason as to why the extension should be granted and that the interests of justice require that such an extension be granted.
(c) No extension granted on the hearing of an application under paragraph (b) of this section shall be for a period greater than 30 days.
(d) Either the prosecutor or the accused may make more than one application under paragraph (b) of this section.
(15) Either the prosecutor or the accused may, in respect of any case which has been returned for trial to a Circuit Criminal Court, apply to the High Court for an order directing the transfer of that trial from the Circuit Criminal Court to the Central Criminal Court.
(16) At the hearing of an application made under subsection (15) of this section the High Court shall not make an order transferring the case for trial unless it is satisfied that, by reason of the seriousness and complexity of the charge or by reason of there being a substantial point of law of public importance involved in the case, the interests of justice require that the trial be held before the Central Criminal Court.
TABLE
OFFENCES TO WHICH SECTION 15(14) RELATES
1. Rape.
2. Rape contrary to section 4 of the Criminal Law (Rape) (Amendment) Act, 1990.
3. Aggravated sexual assault contrary to section 3 of the Criminal Law (Rape) (Amendment) Act, 1990.
4. Robbery contrary to section 23 of the Larceny Act, 1916 as inserted by section 5 of the Criminal Law (Jurisdiction) Act, 1976.
5. Possession of a controlled drug for the purposes of sale or supply contrary to section 15 of the Misuse of Drugs Acts, 1977 and 1984.".
Amendment No. 27 has already been discussed with amendment No. 7.
I move amendment No. 27:
In page 12, after line 9, to insert the following new Schedule:
"SECOND SCHEDULE.
|
Number and Year |
Enactments |
|
(1) |
(2) |
|
40 & 41 Vict. c. 49 |
Section 12 of the General Prisons (Ireland) Act, 1877 |
|
54 & 55 Vict. c.69 |
Section 8 of the Penal Servitude (Ireland) Act, 1891 |
|
7 Edw.7. c.19 |
Section 1 of the Prisons (Ireland) Act, 1907. |
Amendment No. 28 has already been discussed with amendments Nos. 7 and 14.
I move amendment No. 28:
In page 3, line 17, after "MONEY LAUNDERING," to insert "TO MAKE PROVISION FOR THE AFFIXING OF A SEAL TO THE ORDERS OF THE DISTRICT COURT, TO ENABLE THE MINISTER FOR JUSTICE TO MAKE RULES FOR THE REGULATION AND GOOD GOVERNMENT OF PRISONS,".
Amendment No. 29 has already been discussed with amendment No. 23.
I propose the following draft report:
The Select Committee has considered the Bill, has made amendment thereto and has amended the Title to read as follows:
AN ACT TO AMEND THE LAW RELATING TO PROCEEDINGS IN CRIMINAL MATTERS IN THE DISTRICT COURT, FOR THAT AND OTHER PURPOSES TO AMEND THE COURTS OF JUSTICE ACT, 1924, THE CRIMINAL JUSTICE ACT, 1951, THE CRIMINAL PROCEDURE ACT, 1967, AND OTHER ENACTMENTS, TO GIVE EFFECT TO ARTICLE 11 OF THE COUNCIL DIRECTIVE 91/308/EEC OF 10 JUNE 1991 OF THE COUNCIL OF THE EUROPEAN COMMUNITIES ON PREVENTION OF THE USE OF THE FINANCIAL SYSTEM FOR THE PURPOSE OF MONEY LAUNDERING, TO MAKE PROVISION FOR THE FIXING OF A SEAL TO ORDERS OF THE DISTRICT COURT, TO ENABLE THE MINISTER FOR JUSTICE TO MAKE RULES FOR THE REGULATION AND GOOD GOVERNMENT OF PRISONS, AND TO PROVIDE FOR RELATED MATTERS.
Is that agreed?
Report agreed to.
Ordered to report to the Dáil accordingly.
I thank Deputies who have been here all day discussing this important legislation. I thank my officials, particularly Mr. Kevin Condon and Mr. Richard Ryan who have worked so hard on this Bill. This is just one of the Criminal Justice Bills I propose to bring to this committee before the next election. My objective is to introduce an annual Bill to incorporate the changes highlighted by Deputies on all sides of the House from time to time. This Bill started life about ten years ago but because we kept adding to it, it was put back. I thank everyone involved in bringing it here today and I thank the Opposition spokespersons and others for their contributions.
I thank the Minister and Deputies for ensuring we completed Committee Stage today. We look forward to discussing Report Stage of this Bill in the Dáil as soon as possible.
The Select Committee adjourned at 6.45 p.m.
