I thank the last two Deputies for their thoughtful contributions to this debate. I noted that in dealing with the bail issue Deputy Byrne studiously avoided the question of holding a referendum. In his proposals to improve the law on bail it is glaringly obvious Democratic Left does not support the holding of a referendum. It is interesting to reflect on Deputy O'Donoghue's speech on this Bill last week and the remarks attributed to the Tánaiste in The Kerryman on 2 February 1996. It is obvious that despite the shouting, roaring, rí-rá, ruaile buaile and the histrionics engaged in by the Minister to the effect that the Government parties are not divided on this issue and that newspaper reports written by responsible journalists were fabrications in so far as they quoted Labour Party Ministers as saying a legislative response was preferable to a referendum, the reality is there is not tripartite support for a referendum on bail. I understand how people could honourably oppose the holding of such a referendum, but either the bail law is perfect as it is or it needs to be changed.
The Supreme Court's decision in the O'Callaghan case was unwise. In effect, it guarantees that any person arrested and accused of a serious offence will be set at liberty pending his trial unless, as a matter of probability, there is evidence to suggest that he will either not turn up or that he will interfere with the proper conduct of the trial by interfering with the evidence of witnesses and the like. That guarantee is not available in any other common law country. Ireland is the only country in which the right to trial in due course of law and the constitutional right to liberty of the individual have been interpreted as giving an absolute guarantee to an accused person of his right to liberty unless, as a matter of probability, he fails one of two tests.
The Supreme Court in 1966 might have felt impelled by some liberal policy to go a little further than the law had ever gone before. There is a neat logic to the O'Callaghan case but that type of logic is detached from reality. When one is in a world where people are committing successive crimes as a way of life, where there is a low detection rate and where a general attitude prevails among a certain cohort of people of a particular age group from which crime emanates that prison is not a deterrent, a liberal bail law is mistaken.
I have argued before and I still believe that it would be an absurdity to address the issue of bail without addressing the prison service. One would end up emptying the prisons of those who have been convicted and replacing them with those who might or might not be convicted pending trial. As Deputy Byrne pointed out, in the present context of lengthy delays in criminal trials if would be equally absurd to imprison many people for a long period of time when, in the last analysis, they might be acquitted. Nobody can restore, in any real way, civil liberties to an individual who has been wrongly deprived of his liberty pending trial. I hope we will not create a situation in which we will have to start handing over compensation to those who have been wrongly deprived of their liberty.
This Bill provides, without any assault on the presumption of innocence or a question of there being preventive detention, that a person who goes bail for somebody else — thereby guaranteeing that he or she will turn up for the trial and will not interfere with witnesses — and who stands to forfeit the bail money if the accused breaches the two basic O'Callaghan conditions should, in certain circumstances on the application of the prosecutor, also be made to stand surety for the good behaviour of the accused person while awaiting trial. The sense of that provision is simple. Heroin addicts who support their habit by daily break-ins and muggings might find it very difficult to avail of the fiction of the presumption of innocence when they cannot persuade anybody close to them to even guarantee for a sum of money that the person will not commit a further offence while awaiting trial. People in such circumstances suffer no intrusion on their constitutional rights if they cannot convince anybody close to them or on whom they would normally rely in such circumstances to be bailsman and to act as guarantor for their good behaviour.
It is relevant that in Scotland the law already has that effect. It can be made a condition of granting bail in Scotland that one will not commit a further offence while on bail. That provision is not widely used because there is a discretion to refuse bail on wider grounds, such as existed here before the O'Callaghan case. Nonetheless, there is a precedent in a neighbouring jurisdiction for the refusal of granting bail in cases where somebody is likely to commit a further offence through the mechanism of making the surety liable to forfeit the bail if the accused abuses his bail to commit further offences.
Bail is being abused at present and we must face up to that fact. If this proposal is not the right one, a referendum is the only way to get around the problem. This proposal in any event does not prejudice whether there should or should not be a referendum. This Bill should be part of the law even if the Constitution is amended by the people to restrict the absolute right to bail. In cases where one knows in one's heart that people will avail of their liberty to reoffend, it is perfectly sensible to provide for a disincentive to their being granted bail. The most sensible way within our grasp at present is to create a situation where bailsmen should stand sureties for the good behaviour of the accused during the period of bail.
The present bail law is a joke. In the Dublin Circuit Court, as pointed out earlier today, one estreatment has taken place in circumstances where there have been hundreds of bench warrants issued for people who have broken their bail. The reason is that bail is fixed in sums which are so small that to have a court hearing as to whether I or somebody else, who has gone bail for an accused, should forfeit £200 is simply not worth the bother. That calls into question the amounts of money on which people can secure bail and the amounts of security offered. If hundreds of people abscond and do not face trial in the Dublin Circuit Criminal Court and in one year only one estreatment application is made, it is clear that the criminal has contempt for the disincentive of losing bail money. The prosecuting authorities, likewise, have no faith in the deterrent of forfeiture of bail as a real element in ensuring that people turn up for their trials.
I wish to deal with some of the points raised by the Minister in reply to Deputy O'Donnell. She said the provisions in the Bill allowing the Minister for Justice to make regulations for the general governance of the prison service and, in particular, section 30 which allowed the Minister to amend, adapt or repeal the antiquated system of prison legislation were, to use the Minister's phrase, "manifestly unconstitutional". If it is manifestly unconstitutional, I advise the Minister's advisers to search carefully through the Statute Book where they will find many instances of the same thing being done in statutes proposed by the State. There are many precedents for detailed old-fashioned legislation being supplanted by a modern regulatory regime, which allows the Minister of the day to make amendments to Acts of the Oireachtas in respect of hospitals and other matters, which are perfectly constitutional. Another matter one must bear in mind is that there is a presumption of constitutionality and any provisions such as section 30 of this Bill would be interpreted as permitting a limited power of amendment for the purpose of facilitating the regulatory power conferred by earlier sections on the Minister.
I am not impressed by people who say we should be slow to change our law of criminal procedure. I have experience of criminal procedure; I have prosecuted and defended cases in our criminal courts for about 20 years. The cases were both simple and serious. There are some aspects of our system of criminal law which are offensive to reason. One of them is that prosecuting counsel, when somebody comes into court and says for the first time that he has an explanation for the incriminating facts on which the prosecution relies, is not entitled to say: "Mr. McDowell, if that is your defence, why did you not mention it when you were arrested; why did you not mention it when you went to the District Court; why did not save yourself the bother of being tried on indictment for a very serious offence and risk your liberty if a simple explanation was available to you which you could have given to the police?"
As the law stands, one cannot ask that question or say to the jury at the end of a case: "If the story given by way of explanation by the accused is true, ladies and gentlemen, why was it furnished in the court for the first time? What do you think of his decision to hold his cards close to his chest until the day of his trial and to go through this procedure without once mentioning that he has a perfectly good defence to all this case?" If one cannot ask simple and obvious questions, which go through everyone's mind in a trial, of a jury when closing a speech for the prosecution or for the accused then there is something unreal about the system. I strongly believe our law must be changed so that it conforms with common sense. In a jury trial which is in accordance with the laws of evidence 12 people are asked to apply their common sense to the facts. However, one then says that they must engage in what must be for some of them fantastic mental gymnastics not to ask obvious questions about the case tendered by the accused and not to permit the counsel employed by the State to pursue obvious lines of inquiry in terms of cross-examination.
We have already breached that rule in the law relating to alibi. One cannot call alibi evidence — that is, evidence to the effect that one was not at the scene of the crime but was somewhere else — unless the State is given notice of it. The reason for this is that the State must be given a reasonable chance to challenge this exculpatory evidence and to investigate its veracity. One cannot simply ambush the State with evidence on the day of a trial. If this is fair in the context of whether one was geographically at the scene of a crime or somewhere else as in alibi cases, then other explanations which can be dragged out of a hat as a surprise at a trial or brought up at the fifty-ninth second of the fifty-ninth minute of the eleventh hour in the criminal process must similarly be subject to the common sense rule that at least some adverse inferences can be drawn from that very simple fact. One of the sections which deals with this issue was not drawn from imagination or thin air but was included in a Bill tendered to the Houses of the Oireachtas by the Department of Justice in 1984, that is the capacity to draw an inference from the failure to mention certain facts. However, it was withdrawn at the time as a concession to civil liberties. I am not against the making of concessions to civil liberties but this was an unwarranted concession and the law would be better if it were changed.
Likewise, it is an affront to common sense to say that an accused person need not open his mouth during the three weeks of a trial and at the end of the case to allow his counsel to attack the State's case while at no time is the accused liable to be called to give evidence nor can the jury lawfully draw any inference from his failure to participate in a trial. Under the 1924 Act no comment can be made about whether the accused did or did not give evidence. It is absurd that a judge, providing he complies with the presumption of innocence, can comment critically on this and point out to a jury that an accused person has not given evidence while the prosecution may not do so, may not ask any questions on the subject and may not say to the jury "If there was an innocent explanation to all of this one would think that you would have heard of it, ladies and gentlemen of the jury". Those antiquated laws belong to a bygone age and should not have any part in our modern jurisprudence.
This is the sort of thing which tends to tip the scales against fairness in prosecution. The people who are the prosecutors in most cases tried on indictment are as entitled to justice as an accused person. The time has come to reform our laws of criminal procedure to make them fair to the prosecution as well. One is not threatening civil liberties in any way if one introduces a law which accords with common sense and with ordinary people's sense of fair play and justice. I am not suggesting that Deputy O'Donnell would have been wise to include a section which provided that the previous convictions of an accused person should be capable of being dragged up against them in prosecutions, although many people think it is farcicial that a person with a record as long as his arm can pose as entirely innocent. However, it is a valuable safeguard as a jury would tend to believe that a person with five convictions must be guilty of the sixth offence. The proposals put forward by Deputy O'Donnell are reasonable and measured and are based on proposals in neighbouring jurisdictions. Some of these provisions are in operation in Northern Ireland and England and it is about time we began to address keeping the scales of justice fairly balanced between the prosecution and the defence. The Bill is not a tabloid approach to criminal law. Rather it seeks to make fairness operate where unfairness is perceived to operate at present.
Deputy Byrne said some provisions could be incorporated in Government legislation to modernise the criminal law. The Minister said she would introduce a criminal law Bill which would abolish the difference between felonies and misdemeanours, create a new form of arrestable offence, abolish the difference between penal servitude and imprisonment and do many other things in regard to the criminal law. That Bill was introduced in the House 30 years ago. I do not know how long it had been drafted before it was introduced but given the way things are done it was probably drafted five years previously. That Bill has sat on somebody's shelf for more than 30 years and there is no excuse for having left the criminal law in the state of intellectual slum into which it has fallen. I am shocked that it has taken 30 years to introduce legislation which would amend totally antiquated and insupportable legal distinctions and fictions. Why has the criminal law been left so badly unreformed? From time to time ad hoc measures are proposed but the entire process of modernising the criminal law seems to be unfashionable in the Department whose duty it is to keep it up to date.
The Bill proposes to deal with the prisons issue. The time has come to impose a statutory duty on the Minister for Justice to provide sufficient prison spaces to cater for those who are sentenced by the courts. The excuse offered by the Minister that the statutory duty to provide adequate space somehow ignores the right to give early release as an incentive to good behaviour is totally threadbare. The Bill merely provides that if the State is required by the courts to imprison people for a certain time and if, with good policy, there is a certain prison population, then there must be an adequate prison structure to accommodate those people. That is reasonable. The proposal to have an inspector of prisons is worthwhile as is the proposal to remove the Prison Service from the control of the Department of Justice. Although the Minister's response to Deputy O'Donnell's speech seems to suggest no final decision has been made on whether an executive office or agency should run the service rather than the Department of Justice, it is noteworthy that the Department was the preferred option in the five year plan for the management of the Prison Service published two years ago. I do not see any contradiction between ministerial accountability and making something into an agency of the Department. It is possible to do both as the policy document of the Progressive Democrats points out.
In Britain the Home Secretary is politically responsible for prisons and the Director of Prisons Service is responsible for their day to day operation. There may well be unfortunate clashes between the two as to who is responsible for deficiencies in the service but it is far better for the public to know there are deficiencies than to have a Department that pretends there is nothing wrong and refuses to release any relevant statistics about the service it runs.
I do not like to criticise public servants for the state of our laws or the functions assigned to their Departments. However, there is something strange about a culture in which successive Ministers for Justice, nominally responsible for what happens in that Department, publish prison reports which are years out of date. That is wrong. If there is a duty to report on prisons annually, why is the report not published the following March? Why is it that the latest set of prison reports available is for 1993? The only reason is sheer laziness and inefficiency and a sense that it does not really matter when one reports as long the provisions of the statute are complied with at some stage.
If we were told the truth about temporary release and the rate at which the prison door revolves, there would be a public outcry. When asked about the matter it suited successive Ministers for Justice to say that it would cost too much and take up an inordinate amount of time to give a fair picture of what is happening in the Prison Service. Anybody involved in the process knows that people are granted temporary release. In practice there is a huge remission of sentences. On average, the granting of temporary release in respect of most non-politically high profile crimes, such as rape, ensures that offenders spend roughly 30 per cent of their allotted time in prison. That is just as much a scandal as the process of remissions granted by the Department of Justice at one stage; it is a parallel system of justice. Sentences are reduced not by reference to whether the needs of society are satisfied by the punishment of the individual offender but solely by reference to the arbitrary issue of whether another person needs the cell.
The Prison Service is badly managed. We have the highest ratio of prison officers to prisoners. State expenditure on prisons increased by 50 per cent in the last five years but it received little in return. There are more employees in the system than prisoners. In New Zealand there are half as many officers but twice as many prisoners. Ministers for Justice will be uncomfortable if called upon to answer why we allow our prison system to remain in this state.
This Bill was introduced by Deputy O'Donnell with a view to tackling the real issues which confront the Garda and the State in the fight against crime. From changing the law on depositions, bail and the way in which our Prison Service is run to changing criminal procedure, this Bill was designed to put together a series of answers to practical difficulties which face the State in prosecuting the war against the crime.
In contrast, the Minister has brought in a very worthy Bill against drug abuse and trafficking. I support the thrust of her Bill but can people spend three or four days in detention staring at a point on the wall without having to account for the fact that they remain silent? Can those who spend a week in custody come to court and explain, for the first time, why they were caught with this or that substance in their possession without any inference being drawn? Can they insist on every State witness giving evidence orally in the District Court which must be taken down in handwriting by the District Court clerk and given to them for their signature? Are drug addicts and drug barons to be given bail with freedom to reoffend? Will they be granted temporary release without public knowledge? Will they be held in an inadequate Prison Service without serving the full sentence allotted to them by the court?
It is all very well to bring in a high profile anti-drug trafficking Bill, the terms of which I support, but what about the right to silence, the fact that drug barons will not give evidence at their trial, that there will not be sufficient prison space for them or that, due to antiquated criminal procedures, it will take a year to get them to trial? When will anyone face up to those issues which are far more practical in the fight against drug trafficking than many of the issues for which the Minister has such high hopes in her Bill? If we do not face the practical difficulties and the problems in our system of criminal justice, what chance is there that such legislation will have a serious impact on the drugs issue? A Government which tenders legislation such as the Criminal Justice (Drug Trafficking) Bill, 1966, and says it will not have any of this will find out it is long on rhetoric and short on positive results.
