Léim ar aghaidh chuig an bpríomhábhar
Gnáthamharc

Dáil Éireann díospóireacht -
Wednesday, 4 Apr 2007

Vol. 635 No. 2

Criminal Justice Bill 2007: Report Stage (Resumed).

Bill recommitted in respect of amendments Nos. 43 to 170, inclusive.
SECTION 24.
Debate resumed on amendment No. 65:
In page 18, between lines 20 and 21, to insert the following:
24.—In this Part—
"Freedom of Information Acts" means the Freedom of Information Acts 1997 to 2003;
"law terms" refers to the four periods (to wit Michaelmas, Hilary, Easter and Trinity) of prescribed sittings for the Superior Courts, as defined in Order 118, rule 1 of the rules of the Superior Courts;
"the Register" means the Register of Sentences established by section 4;
"the Service" means the body established by the Courts Service Act 1998;
"time already served" means the period of time, prior to conviction, during which the convicted person was detained in custody without bail.".
—(Deputy J. O'Keeffe).

When the debate adjourned earlier, we were discussing a register of sentences. A number of options are open to us on the broader question of sentencing guidelines. In continental Europe under the civil law system, which is somewhat more structured than our system, minimum and maximum sentences are provided for. In general under the common law system, it is for the Judiciary to decide within certain maxima what sentence is appropriate. I agree with Deputy Jim O'Keeffe that it is not satisfactory for individual courts to operate so much in isolation from each other. Consistency requires a collective effort. It is important for us to have a means of harnessing what I believe is good will on the part of the Judiciary towards making that effort to achieve consistency. The Denham committee, which I mentioned earlier, is an important forum in which to address the issue.

It appears to be implicit in some of the reports I have read recently that if something is going wrong with sentencing it is the function of the Director of Public Prosecutions to appeal to the Court of Criminal Appeal sentences with which he is unhappy. If it is going wrong, it is not fair to ask the Director of Public Prosecutions to appeal all these cases to get it right. There is a tendency in some areas, and it is by no means prevalent, to do some hand washing and say that if there is a major problem, the Director of Public Prosecutions would be appealing the cases and that since he is not appealing a significant number of cases, there is not a significant problem. There is a significant problem with consistency of sentencing.

Although it might have been reassuring to somebody in my position to watch the "Prime Time" programme a few nights ago, in which a jury was more severe in its attitude than the Judiciary appears to be in respect of a number of specimen cases——

I would not like to appear before a few of them.

——it is a fact that judges deal with a huge volume of cases. We generally do not allow juries to determine penalties. If one is faced with a murderer on one day and on succeeding days with a rapist, a burglar, an assaulter, a white collar thief, a child abuser and somebody in court on a child pornography charge, it allows one to see the broad mass of humanity and to see crimes in a more general context.

One is inured to it.

The point can also be made that judges get tired and worn out with the volume of crime with which they must deal and that they lose the freshness of anger and dissatisfaction that people facing the issue for the first time would have. The truth lies between the two positions. That is the reason I do not believe we should have a system of selection of penalties by juries or that we should always assume that the penalty agreed on by, for example, an audience of 100 in an RTE studio would necessarily be the correct penalty. By the same token, we cannot assume the contrary, that is, that whatever the Judiciary decides in every case is always right. That is an equally extreme point of view and is not correct either.

I am strongly of the view that it is necessary for the Judiciary to create databases and a common consciousness, to provide information, to receive input from outside and to study issues collectively, not just individually. I am not talking about judges reading The Irish Times over their cornflakes and coming to individual views, but about holding seminars on, for example, the extent of the drugs problem in Ireland and the modus operandi of drug gangs. They would assess such issues by reference to collective self-education. I do not like the notion of judicial training, as if judges are a group of circus animals who can be told to do things and respond in certain ways by having a political whip cracked at them. However, self-education is not simply a matter of musing quietly on the ways of the world based on the caseload that comes before an individual judge. There is a requirement that the Judicial Studies Institute should engage in collective deliberation and discussion about what is the appropriate response to a particular form of crime.

The all-party committee on sexual offences heard valuable evidence on some aspects of the criminal law. It was an educational process. The Judiciary organises conferences but I believe that process must be dynamised to ensure that judges really engage in collective discussion about, for example, what it is appropriate to do with a 23 year old man who rapes a girl and what is the fair approach to that issue. It does no harm to consider hypothetical cases in the context of actual cases. I am not asking the judges to behave like robots but to step up massively their collective activities in these areas. It does not infringe on their independence. Collective action by the Judiciary to bring about cohesion in its approach to sentencing is hugely important.

I do not wish to spend too much time on this issue but I will make a final point. There is a view expressed in today's newspapers that the role of the Judiciary in criminal law is purely as arbitrator in an adversarial process, but that is not the case. It is the case when judges are adjudicating in an adversarial process, but sentencing is not an adversarial process. Sentencing is a process where the judge is the instrument of criminal justice. It is not a matter of asking what the prosecution and the defence consider to be the appropriate sentence and deciding between the two. That is a wholly wrong model of the function of a criminal judge in the common law system.

It is the function of the Judiciary, affirmatively, to select appropriate penalties. It is also its function, in this context, to protect society and to uphold public confidence in the system of law and public cohesion in the face of crime. Furthermore, it is its function to hold open the prospect of rehabilitation and to deal with cases not only on an individual basis, because all offenders are different, but also on a collective basis, because all offences fall into broad categories and ranges.

There appears to be an idea that it is somehow impossible to bring to the sentencing process a dynamised, active, collective approach by the Judiciary, and that judges are individual, autonomous units who operate independently of each other, but I do not accept that proposition. I believe there is a collective responsibility on the part of judges — I do not mean this critically — to confer widely with each other and to come to consensus views on a sustainable, cohesive approach to sentencing policy. It is not the case that the traditional view of the judge as the arbiter between contending sides applies in the sentencing process. Judges are integral to the protection of everybody's rights under the Constitution, most particularly societal rights and the rights of individual victims.

I have a different approach from the Minister. It is not the job of the judges to provide a database any more than it is their job to provide a courthouse. It is the job of the Executive and the Oireachtas to provide the means by which the judges do their job. One of those means is the provision of courthouses, the other is the provision of databases or registers of sentences, which is what I propose in this amendment. I accept that the judges should have an input and that the Denham committee can have an input, but it is not up to that committee to supply a database or a register of sentences. It does not have the resources to do so. That is a matter for the Executive.

I do not approve of open criticism of judges, some of which I have heard from the Minister. It might be populist but it is improper. That is not to say that judges should not be answerable for their role. It is for that reason I support the establishment of a judicial council. It has not yet been established, but it will be. I followed the proceedings of the Curtin committee and have no doubt about the need for such a council. However, that is another day's work. I am talking about all this in the context of consistency of sentencing. I also firmly believe it is the one area which really undermines public confidence in our criminal justice and judicial system. This is something about which we must be absolutely careful. It is also something for which we have an answer, but the answer lies with us, be it the Executive or the Oireachtas.

The Minister mentioned the role of the DPP. The DPP has a role, but we cannot expect him to go beyond the role we have given him, which is provided for in legislation, except in one respect. We have given the DPP a role from the point of view of appealing on the grounds of leniency in certain circumstances. I envisage that if we have consistency of sentencing, this role would only be used in very limited circumstances. The one additional role I want to see the DPP play is in respect of sentencing. Whatever about the Bar Council, whose guidelines in respect of the prosecution approach to sentencing are wrong, the DPP should arrange in every case to make a plea in prosecution if he considers it appropriate, without being asked by the judge, which is the current situation. I am not talking about the DPP demanding 20 years, as they do under continental courts. Rather, he should point out particular issues which are of an aggravating nature and which would be at the higher end of the guidance I wish to come to next.

It is mainly the job of the Executive, but with the support of the Oireachtas, to establish guidelines, as other common law countries have done. This is our job from the point of view of trying to ensure this consistency. We should establish the tariffs and guidelines. This is what happens in other countries so why do we not do it?

The public has an interest from the point of view of ensuring, as far as possible, that hardened criminals are sent away. That is its main interest. I saw the RTE programme on the matter and like everybody else, I would not like to be judged by the panel in respect of a sentence. It was a cross-section of opinion. They want hardened criminals to get tough sentences.

How do we achieve that and how do we achieve fairness and consistency? I very much push the approach about which I am talking, beginning with this amendment and the register of sentences, and following it with pleas at the sentencing hearing, particularly from the DPP, guidelines and an explanation from the judge if he or she goes outside the tariffs or guidelines.

The other point where I differ somewhat from the Minister is in respect of judicial training. Everybody needs training, not just animals in the zoo. Anybody who wants to do a job properly needs ongoing training. We have it in the Law Society from the point of view of continuing training. I imagine it exists at the Bar, but I am not as sure. Everybody needs to continually upgrade their skills and keep in touch with changes.

Again, we have a role here. I am all for judges having meetings, including, on occasion, those in pleasant surroundings. I have no problem with that, but, again, it is for the Executive and the Oireachtas to ensure proper facilities are available from the point of view of judicial training. It exists in other countries so why does it not exist here on a formalised basis?

I accept the criticism in respect of the way in which my amendment is drafted. The Minister effectively suggests that my amendment and I are too perfect. I plead guilty. I have been too prescriptive in respect of amendment No. 66.

Pleading guilty to being perfect — I thought I did that.

I am glad of the source of the accusation. I would be quite prepared to accept, provided the enabling provision was there, that the detail is probably something that would be better spelled out in regulation. This is all the more reason to start, as was rightly pointed out by the Minister, with certain basic things on a register, subject to the development of the appropriate technology. One would not start with all the details in amendment No. 66 because it would take quite some time before one developed the technology to include any of those.

This is the right way forward. I cannot bring it any further at this stage. I hope I have convinced everybody that this is the way forward from the point of view of a register and guidelines. Without any great hope that the Minister will do anything about it in the short time left to him in office, I can only say this should be put on the Statute Book at an early date and I hope, with others, to be in a position to ensure this is done.

I am very conscious of time. We have three hours in which to reach very important parts, including this part because the Minister has moved a great distance from his original proposal in respect of sentencing. We need to deal with the Minister's amendments and tease them out.

Having said that, I will make a few important observations about the debate we have had and try to do so without being seen to talk about any particular cases. We must examine an issue — I will not say it is a difficulty — with the operation of the Court of Criminal Appeal. Certainly, judges in their courts are looking over their shoulders to some extent at the decisions of the Court of Criminal Appeal. Some say that this is the way it should be, but the Court of Criminal Appeal is not a fixed court. There is not necessarily consistency coming from that court, depending on its individual make-up.

I do not know instantly how we are going to solve that, but it is an issue we must resolve. If there is to be an appellate court that is setting down the pattern of sentencing, that in itself must be consistent. We must achieve this. I am concerned that judges are now saying that if they had their way, they would give what they would deem to be an appropriate sentence but, having regard to the decision of the Court of Criminal Appeal in a similar case dealt with by them, they will not give a sentence they deem to be appropriate. This is an issue which we must address in some way.

We come back to the issue I raised this morning and again in respect of one of my priority questions, namely, judicial standards. I do not have any difficulties with using the phrase "judicial training" because other professions are trained. What used to be called teacher training colleges and are now called colleges of education provide training. Training in a professional capacity is no bad thing, we should not shy away from it and one does not need to say it is analogous to training circus animals. It is professional training to have consistency, understand what is required and apply broad experience from others to it.

I am intrigued that the Minister said the Judiciary needs a common consciousness in respect of it. This sounds vaguely like something out of the 1960s. How we going to get this?

I am a child of the 1960s.

Maybe he is a child of the 1960s. I thought when the others were wearing their flares and flower power outfits, the Minister was wearing his FCA uniform, so he was out of step even then.

That was Deputy Gormley.

Was he in the FCA?

We need to recapture that issue in a way that, as I said, has been off the agenda since the former Chief Justice's report on this in 2000. I do not wish to spend any more time on it. The net issue we must deal with is the need for a common database. I am impressed by the argument put forward by Deputy Jim O'Keeffe that this is something that should not be ad hoc and that one should not take an approach that says “right lads, you are the professionals and if, by chance, you agree it and can input it into it and sure we will even give you a few bob to do the technology for it”. Having a look at what are common practices and similar cases, what colleague judges have decided in these matters and what body of sentences has been built up should be part incrementally over time of the service provided by the Courts Service to the Judiciary in a modern professional democracy. If we are not going to accept it in this legislation, we will accept a model like this very shortly as a proper function of the Courts Service, although it may not be as ambitious a model ab initio.

I will mark Deputy Howlin down for the next round.

I would like to make one final comment. The Minister said that he did not want the DPP to be catapulted into a parallel judging system, as his role is to appeal constantly. I provided another role for the DPP and I want to highlight it now simply to keep it in the mix. Where there is interference with the jury and that interference becomes apparent afterwards, there must be some mechanism whereby such a wrongful decision can be adjusted. Another issue is where there is compelling new evidence for very serious cases, but I do not want to go off on a tangent again.

I do not want to delay this, but I would like to respond to Deputy O'Keeffe. The Courts Service is a unique body. It is mainly run by the Judiciary and it is independent of the Department of Justice, Equality and Law Reform. It is responsible for servicing the courts system, for getting the databases together, for producing annual reports and for collating statistics. That is its function.

Who sets its budget?

I think the service has its own Accounting Officer, but the Department provides it with a block Vote every year.

Do its officers say what they need, or does the Minister tell them what they are getting?

There is an Estimates process. They come to me and they get a block Vote. The chief executive of the Courts Service is the Accounting Officer. In case people think that the Executive still runs everything, gets all the information and leaves it on a shelf, I would like to say that this is not so. The Department of Justice, Equality and Law Reform does not do that anymore. That is all done by the Courts Service, which is independent of the Department. The only issue is resourcing.

The Minister sets its task under the Act. Its duties are defined by this House.

I accept that. I was just making the point that the Judiciary is not acting as a group of amateurs when running a data project of its own. That is its function. One of the key functions of the Courts Service is to inform the Judiciary on what is going on. The old-fashioned notion that the Department does everything and the judges are helpless does not exist anymore.

Is the Minister saying that the judges or the Courts Service or both should establish this register?

Yes. Nothing is holding them back. One of the functions of the Courts Service would be to assist the Judiciary in this matter.

Do we not set those functions in law?

The Denham committee is not some notion that occurred among judges in St. Stephen's Green one afternoon. They run all of these things and are quasi autonomous in this area. They collectively decide whether to sponsor Dr. Coulter's report and so on. They do not come to me looking for money for these things.

Before the DPP was given a right of appeal against unduly lenient sentences, there was a provision that somebody could have his or her sentence increased on appeal, but the only appeal was at the instigation of the accused. When that was the case, nobody ever said that it was for the prosecution to demand sentences. It was clearly understood that it was the personal responsibility of the trial judge at the time to get it right. In those days when the DPP had no right to appeal, it was all the more reason for the judge to get it right. If the sentence was unduly lenient, nothing could be done about it at all.

I am counselling the House not to go down the road where the judges should retire to being independent arbiters between two conflicting views. That would be a heinous error. Part of the job of a judge is to be an independent arbiter between two sides at that stage of the case, but an equally serious part is to take on the role of defending the Irish people's constitutional rights by punishing crime in an appropriate way. It is not just a question of being between two contending views. The judge must take on the personal responsibility to get the appropriate sentence.

There is a deep philosophical trend emerging which states that if the judges are getting it wrong, the DPP should tell them. That is not right. It is for the Judiciary to get it right in the first instance and on appeal. Judges will not approach cohesion and consistency if they do not sit down together and discuss hypothetical cases, if they do not generate the database we mentioned, if they do not keep each other informed of what they are doing and if they do not take collective responsibility for this area of law which is their responsibility alone. I am passionate about this because there is a tendency to say that every individual case is different from all other cases and all judges are free to do what they think, as there is an appellate process to correct them if they get it wrong. That is totally unhistorical. When imposing sentence, it is the function of a judge to defend Irish society from crime. He must impose a sentence that commands public confidence and there is no escaping that obligation. He cannot say that the media and the politicians are all wrong and he is all right. Judges are independent, but part of their independence is that they owe a duty to Irish society to get their decisions right.

Is the Minister in favour of a prosecution's submission on sentencing, which is a basic part of my approach?

Like the Deputy, I do not believe that a prosecutor should demand 18 years or something like that. If the Courts Service developed a corpus of data, it should be open to a prosecutor to draw to the attention of a judge precedents from the Court of Criminal Appeal, as well as the general pattern of sentencing in an area. It should be reasonable to put those points before a judge.

Should he not now be able to highlight aggravating factors?

I tend to agree with the Hogan report that it is unsatisfactory for a prosecutor to say that we have heard all the weeping stuff, but we should remember A, B, C and D.

The Bar Council is blocking that.

It is not a Bar Council issue.

While Members are allowed to come back on amendments, we might be better to stick to the rules and let the Minister conclude.

I will be brief. I do not think that speech is an aggravation or necessary. When imposing sentence, a judge should have obtained from the Garda the effects on the victim, the antecedents on the accused and he should have the facts of the case fairly clearly in his or her mind. A judge does not need speeches to remind him or her of that. We do not have to go down the road where people are demanding this or that penalty, but we need a common understanding by the Judiciary of principles that should apply to the sentence.

Nearly 20 years ago, I was a barrister in The People (DPP) v. Tiernan, which dealt with the reduction in a 21 year sentence for rape. From memory, I think it was reduced to 16 or 17 years. In that case, the Supreme Court stated that rape was such an offence that it demanded an immediate and substantial prison sentence in every circumstance, except in highly unusual circumstances which the court could not imagine. That was a principle, but I do not know what has happened since because we now have suspended sentences.

I made my pitch. The Tánaiste takes a different philosophical approach from mine. Although we may not be 100 miles apart in our objective, I believe that there is a better way of achieving it. We will have to agree to differ on that. I agree with him on the issue of rape and the decision of the Supreme Court. Rape is one of the most heinous crimes imaginable and anybody convicted of rape should automatically have a custodial sentence imposed. That would be a starting point in dealing with rape. However, I feel the counsel for the prosecution should have a duty on sentence to point that out to the judge. We must agree to differ on this point.

We have had a good debate on these issues and there are other amendments to consider. Perhaps we can discuss this further on Report Stage. I will not press the amendments.

Amendment, by leave, withdrawn.
Amendments Nos. 66 to 68, inclusive, not moved.

Amendments Nos. 70 to 83, inclusive, are technical alternatives to amendment No. 69, while amendment No. 171 is related. These amendments may be discussed together.

There is nothing technical about these amendments; they are substantial.

I move amendmentNo. 69:

In page 18, to delete lines 21 to 44, to delete pages 19 and 20 and in page 21, to delete lines 1 to 11.

This amendment proposes to delete section 24, which deals with sentencing in its entirety. However, I will deal first with amendments Nos. 70 and 80, which are alternatives to amendment No. 69.

Amendments Nos. 70 and 80 propose that the provision that section 24 applies to offences specified in Schedule 2 should include an exception in the case of "an offence under section 2 of the Illegal Immigrants (Trafficking) Act 2000 unless the offender in committing the offence acted for the purpose of making profit". It is preferable that we should have a Bill dealing specifically with human trafficking rather than attempting to deal with the issue by stealth.

Members on this side of the House, as well as some Deputies on the other side, have been pushing for legislation on human trafficking for several years. In the absence of such legislation, it is difficult to ascertain whether this section should stand. There are instances, for example, where a person may have assisted another in good conscience, rather than for personal gain, to enter the State and avail of its protection and sanctuary. I understand what the Minister is trying to do here but I am not sure it is appropriate. Those who are involved in the trafficking trade, which is essentially modern day slavery, deserve the harshest possible punishment. However, the imposition of mandatory sentencing may lead to the criminalisation of people who have acted in good conscience. It is inappropriate to deal with such persons through these provisions. Separate legislation is required.

Amendment No. 69 proposes to delete section 24 in its entirety. The Minister admitted earlier that a working group on sentencing outcomes is engaged in ongoing work. Would it not be better to await the report of this "judge-led initiative", as the Minister described it, before introducing legislative provisions on sentencing? I do not know the timeframe within which this working group must report; it may be open ended. It is only after we receive its report that we should consider what is appropriate to include in legislation.

I have made the case during debates on other legislation that mandatory sentencing is ineffective and inoperable. Experience in other jurisdictions shows that mandatory minimum sentences do not necessarily reduce the incidence of drug related crime, drug supply or drug abuse. Many of those in our prison system are drug abusers. It is they who are most likely to be subjected to this provision because they are the people most likely to re-offend.

I do not condone such reoffending. However, it is incumbent on us to ensure there is adequate investment in rehabilitative and support services for prisoners who are drug abusers when they enter jail. We must ensure they are drug-free when they leave. Otherwise, we face the prospect of increasing numbers of those convicted of crimes related to their drug habit returning to prison. I do not excuse such crimes, but far more must be done before we go down this road. Supports must be put in place to ensure the rate of recidivism is reduced to a level similar to that in the rest of Europe. It is only when we have achieved such a reduction that we should consider the provisions proposed in this Bill for re-offenders.

There is a danger that the imposition of mandatory sentences may discourage some accused persons from pleading guilty, which is helpful to both the court system and the victims in ensuring a speedier trial. There is no inducement for persons charged with a crime to engage with the justice system in this regard because they know they will, on conviction, be subject to three quarters of the maximum sentence for a second offence, for example. There is no leeway to encourage accused persons to co-operate with the courts.

The Human Rights Commission, the Irish Council for Civil Liberties and others have raised this issue in the context of the accused's right to a fair trial. A mandatory sentencing regime means that the sentence is already decided before the person is even brought before the courts. Questions have also been raised as to whether sections 24 and 30 in particular would withstand the test of a constitutional challenge from the perspective of proportionality. The Minister does not like opening the way for barristers to receive even more money. We should do everything we can to ensure this legislation is not subject to constitutional challenges that tie up the courts.

I have made my arguments on mandatory sentencing before. I know where the Minister is coming from and I do not agree with him. The Human Rights Commission and the Irish Council for Civil Liberties have pointed to elements of case law that are relevant to this issue. I am interested in the Minister's opinion on some of these. For example, they refer to the comment by Ó Dálaigh CJ in Deaton v. the Attorney General:

... It is inconceivable to my mind that a Constitution which is broadly based on the doctrine of separation of powers... could have intended to place in the hands of the Executive the power to select the punishment to be undergone by citizens. It would not be too strong to characterise such a system of Government as one of arbitrary power... In my opinion the selection of punishment is an integral part of the administration of justice and, as such, cannot be committed to the hands of the Executive.

In The State (Healy) v. Donoghue, Henchy J. stated that the Constitution, by virtue of Articles 38.1, 40.3.1°, 40.3.2° and 40.4.1° “ necessarily implies ... where guilt has been established or admitted, of receiving a sentence appropriate to his degree of guilt and the relevant personal circumstances”. That is one of the issues, that there needs to be proportionality and it needs to be taken into account rather than in each case the sentence is already decided under this section. Other points have been raised on the issue of sentencing. I urge the Minister to reconsider deleting this section.

We have not had the debate that should have taken place on this issue in the preparation of this legislation or the time between Second and Committee Stages. If we had taken more time it would have been interesting to hear the views of various interested groups. That is the way we should approach judicial legislation of this magnitude. There are many different parts of this Bill that need to be teased out in greater detail. Thankfully the Bill has been recommitted, but it is a pity we do not have sufficient time to debate it because once it is passed we will not come back to it.

It is not often I fully agree with our Sinn Féin colleagues, but certainly I am in total agreement on the issue of adequate time to debate the approach in section 24.

Are we open to a coalition then?

That is a step too far. Section 24 is a concept that was pulled out of the blue by the Minister and it is a matter for him to stand it up, not in a tabloid headline but on whether the approach adopted is the appropriate one for inclusion in our criminal justice system. My basic approach is that it is necessary for the Minister to show that what he is proposing will have sensible, good, practicable outcomes in stemming the tide of criminal activity. That is what most of us would be interested in, drawing possibly on similar approaches in other countries, because we have not had the benefit of advices, consultative documents or submissions in committee or otherwise on this approach. The nearest we get to it is, perhaps, watching the "three strikes and you are out" approach in the United States of America. The Minister has a responsibility in objective terms to support the wisdom of including this approach. If he has an approach that stands up I will back it, but the onus is on him because he has produced this argument to convince the House that this will be an additional weapon in the fight against serious crime, which will have a practical outcome.

It is clear there is no point in introducing such a measure if it is going to fall on constitutional grounds. That is an issue that needs to be examined in light of some questions that have been raised.

Other aspects arise in regard to the section and the amendments tabled thereto. This is a section that deals with minimum sentences for repeat offenders. I am advised there is a lacuna in the section in that in calculating the seven year period to which repeat offending gives rise, the lengthier sentence, the period of imprisonment for the first offence is excluded. It appears to mean that offences committed while in prison would not attract the new sentencing regime. If the proposal is to go ahead the provision should be amended so that it should apply to any offence committed during the period of imprisonment for the first offence and for seven years after the release of the offender. That is a gap that should be closed if we are to proceed with this approach.

Before I return to the basic point, I want to know what prompted this measure and why the Minister considers that the element of judicial discretion in sentencing should be removed in this situation. What is the benefit to be achieved from the point of view of our criminal justice system? This is harking back to our previous debate on the whole issue of sentencing. This is in a situation where we have no register of sentences or database in this jurisdiction. That is the starting point. We cannot have a proper analysis of the levels and effectiveness of sentencing penalties as of now. We do not have the database so we cannot give an analysis as to the benefit or otherwise of the levels and effectiveness of sentencing penalties. In a sense we are in the dark on that issue. The failure to put such a system in place is as much a serious impediment to a rational approach to the adjustment of maximum sentences by the Oireachtas as it is to the assessment by the Court of Criminal Appeal of the appropriateness of the sentence imposed in any particular case.

We are all looking at the "debate" on sentencing and to a large degree we are affected by tabloid-like expressions of outrage at particular sentences — that is understandable — and, as I mentioned earlier, the appropriate and justifiable ministerial attacks on courts and judges.

The genesis of this section goes back to the press release of 13 February which states that the new sentencing regime will apply to persons convicted of "firearms, drug trafficking or other offences associated with gangland activity" who reoffend within seven years. My immediate reaction to the Minister's press release was, hear, hear. I am in favour of that and I want to join in the effort to stop those who are involved in firearms, drug trafficking or other offences associated with gangland activities. I agree with the Minister on that. Let us be blunt about it, this section makes no mention of gangland activity, although the press release did. Many of the offences scheduled to the Act probably will be committed by people with no connection to gangland activities. Offences such as causing serious harm, threats to kill or cause serious harm, false imprisonment, burglary, blackmail, all of which are serious, are by no means always associated with gangland activity. There is a confusion as to the objective in so far as that objective is translated into the actual framing of the section.

We have overlooked who may be caught by the terms of this section. There is no doubt that the prime people who will be caught are the first in line, not the gangland people, but drug addicts. I will not go on record as having huge sympathy for drug addicts, particularly those who use dreadful means to feed their habit, but at the same time I do not associate drug addicts with gangland activity, at least not automatically.

As I understand it, having spoken to people who practise in the field, in some instances drug addicts may be attempting to come to terms with their addiction. I gather that there is some success rate there but maybe we do not have sufficient support facilities to help them. Such support should be available for those who are attempting to come to terms with their addiction. It might be that the just man may fall a few times on the route while dealing with the addiction, so is it proper to lump him off to jail for ten years in such a situation? Let us be frank about it — despite the best efforts of governors and prison officers the level of support available is inadequate.

Contempt of court by intimidating witnesses is one of the most disturbing features of gangland activity, yet this aspect is not covered by the section. As I understand it, that is not treated as a serious offence under it. The Minister has, and always has had, my support in genuine efforts to cope with serious crime, particularly gangland crime. Overall, however, the blunderbuss approach is not the way to deal with serious crime and gangland crime in particular. We need a more calibrated approach which will distinguish between those who, on the one hand, commit crimes because their circumstances are desperate and pathetic and, on the other, hardened criminals who are motivated by avarice and do not care for anyone else in society. Members of the latter group will commit any heinous act, including murder, to achieve their objectives.

I am not opposed in principle to what the Minister is trying to achieve but I am concerned that this section will not achieve the objective he has outlined. I am also concerned that people, although I will not categorise them as innocent, who do not fit into the category of those we are after — the tough, hardened gangland criminals — particularly those who may be making an effort to mend their ways, may fall foul of these provisions. Above all, my real concern is that because of the broad brush or blunderbuss approach being adopted, the provision will not end up having any significant, practical effect on those we are really after — the toughies or hardened criminals. They are the guys I want to nail, but the approach the Minister has outlined does not give any assurance that they will be nailed.

May I come in after the Minister has explained his amendments?

I thank Deputies Jim O'Keeffe and Ó Snodaigh for what they said. The purpose of this section is as set out in the original scheme of the Bill which, as Deputy Jim O'Keeffe stated, sounds right. We must ask, however, whether this is the right way to do it. I am conscious of the fact that we began with the proposition that anybody who got a one-year sentence was walking into this repeat category. I came to the conclusion that if these were serious offenders and were getting one-year sentences, the threshold was clearly too low before this response would be triggered. I believe, therefore, that a five-year offence distinguishes burglaries or aggravated burglaries from run of the mill offences into which people might blunder.

There is another point, however, which is that burglaries are not what this legislation is about. There may be serial burglars, and burglary can be committed in broad circumstances. Burglary and robbery sounds terribly serious but, in fact, a mugging amounts to a robbery, so that is why I want to take them out.

Having listened to Deputies Ó Snodaigh and Jim O'Keeffe, I will have to go further in all of this, tying it down much more narrowly. That is because, although it is possible that a gang will engage in trafficking illegal immigrants, it is equally possible that somebody who had nothing to do with such things could get done twice for that kind of offence — or once for that kind of offence and once again for another offence.

Looking at the list, we have cast the net too widely. I would not like to call my approach a blunderbuss one, but there has been a scatter-gun approach to the category of offences with which we are dealing. Serious offences, including kidnapping, murder, the use of firearms or explosives, aggravated burglary, drug trafficking and organised crime offences, are most likely to be committed by gangland people. If that is what the Bill is all about, we should contract the number of offences more radically than envisaged by the amendments I have tabled. I do not regard the Constitution as some kind of inconvenient obstacle in all of this area.

I am glad to hear it.

I regard the Constitution as something that we all have to uphold wholeheartedly, as we understand it.

It is also our shield.

It strikes me that it is a reasonable approach to serious gangland crime that certain offences should attract substantial sentences if they, or offences of a similar category, are repeated. In that context, we should not be reluctant to provide a safety valve mechanism so that if the imposition of the three quarter sentence was gravely disproportionate, a court should not impose it. There is a proportionality obligation which is implicit from the case law cited by Deputy Ó Snodaigh.

I take Deputy Jim O'Keeffe's valid point about offences committed while in prison. If a person commits certain serious offences, is released and then commits another serious offence which falls into that category, in those circumstances, a person should know from the moment they leave jail for the first offence that if they ever commit such offences again they will face a heavy sentence. In other words, if they have done a serious term of imprisonment for a serious offence and commit a serious firearms offence on release, in those circumstances they will receive a very heavy sentence, as a matter of policy. That would be subject to the proviso that if it was grossly disproportionate it would not apply. If we are talking about the Oireachtas laying down policy guidelines, this is a policy guideline for the Judiciary.

If a person commits an offence in this category and comes back before the courts, having spent a long time in jail for an offence in this category, the norm is three quarters of the maximum, or ten years imprisonment, unless such a sentence would be disproportionate. People who have already been convicted of such offences will know that if they are caught again with, say, firearms in their cars, they must face up to the fact that they will be sent to prison for a long time, unless there is an excusing circumstance that makes this disproportionate.

With this in mind I am taking on board what is being said in this House and I appreciate the support for the principle of what is involved. This Bill seeks to lay down the rules for the guidance not only of the courts but of people contemplating getting involved in serious criminality. This applies particularly to those who have committed one serious offence because if they go back to that territory they can expect serious penalties. Such an approach would be in accordance with the scheme of the Bill as published.

Most people think robbery means only bank robbery but, unfortunately, robbery is also committed by a person who throws a victim against a wall and takes his or her wallet. As Deputy Jim O'Keeffe pointed out, such an act could be committed by a drunk or a crazed addict, rather than a person involved in gangland activities. With regard to causing serious harm, this offence does not require intent and can be committed by a person recklessly. In these circumstances we should not throw the net too widely.

If the principle of this is agreeable we should all understand that while gangs can engage in the distribution of child pornography, it does not necessarily follow that all child pornography distribution is done by members of gangs. I am now inclined to narrow the Schedule severely and to introduce the safety valve of proportionality. I wish to leave in place a clear guideline to the Judiciary that a repeat offence in this narrower category of offences should attract a severe penalty, unless it would be disproportionate.

This respects the Constitution, the roles of the Judiciary and so on. It also accords more faithfully to the scheme of the Bill as published than the comprehensive list of statutes mentioned in Schedule 2, which is too broad.

I am profoundly worried by what we are doing at the moment because the Minister's change of mind since last week is extraordinary. This would have passed last week on Committee Stage had we not had a change of heart and recommitted it. These matters are very serious because we are discussing a range of crimes that will have mandatory sentences for repeat offences. We have seen the shape of the amendments in the past couple of days.

I indicated it last week.

The Minister indicated what he was going to do last week but we have seen the shape of the amendments only in the past couple of days. The Minister proposed to change the sentence from one year to five years, which remarkably changed the character of this issue. Now he is talking about changing the Schedule beyond the removal of "burglary and robbery" to be replaced by "aggravated burglary" to something we do not yet know. I do not know the other delimitations that have been promised. We are on Committee Stage of the Bill and it will be concluded in two hours.

I engaged in this debate, like others, because we wanted to send out a message on gangland crime, but the message must be clear rather than disjointed. We agreed, regarding some of the points I raised last week, that we need to approach the Bill again on issues such as jury intimidation and manifestly unjust acquittal, and I think this matter falls into that category.

It is a lot to ask of the Minister but I request that he not proceed with section 24. We will return to a criminal justice enactment shortly because we have unfinished business, including other issues that have been raised by the Hogan committee and have not been captured by these proposals. We must make this legislation as solid as possible as it would indicate that we are listening not only to opinions in this House but also to external views. This issue is important but it is not mature enough in our thinking to justify it becoming the law of the land a week from now when it passes through the other House. I ask the Minister to park this issue on the basis that there is an understanding of what we seek to achieve. There is a narrow range of offences that are clearly gang-related. Is it possible that a murder with a firearm would be classified as gang-related but a murder with a baseball bat or knife would not? We must think these things through carefully.

The Minister's original press release on this section refers to instances where a person who has been convicted of firearms, drug trafficking or other serious offences reoffends — the two crimes mentioned are firearms and drug trafficking. The Schedule, however, presents a much broader template. It enabled one very distinguished barrister to speak about a serial offender breaking into a school and stealing a rubber. Such an offence would be covered by this, though I cannot imagine a person receiving 12 months imprisonment for such a crime. Notionally, it could happen. We must think about this more carefully if we are to achieve what we want to across the benches, that is, to be coherent, strong, clear and logical. This is an issue we need to return to. I ask that we do not find ourselves compelled to divide on it, though we will be close to that point if the Minister does not accept what I ask and park it as part of the further package.

As the Minister pointed out succinctly in his opening comments, criminal law is a rolling programme, not an event. One cannot simply present a package and expect it to remain sufficient. There will be a rolling programme of modifications required as crime changes and the manipulators of criminal law seek to find loopholes. We must do our best to stay one step ahead.

I know it is a lot to ask of the Minister on the hoof, but I request that he not proceed with this section so we can have clarity on delimiting the offences that will be captured by it and will know exactly what the saver clause that he has mentioned entails. I have only heard of this clause and we have nothing before us to explain how it will be formulated and presented. It would give robustness to the remainder of the Bill if we parked this for inclusion with other serious, important and largely agreed measures that need to be examined when the pressure of the dying days of this Dáil is not on us. We could do this if we were in a normal committee and had weeks, rather than hours, to deal with it.

I agree with the Minister and Deputy Howlin.

The Deputy will have to make up his mind.

We are discussing a criminal justice matter. The changes referred to by the Minister would vastly improve the section. The original section, as I highlighted, takes a blunderbuss approach which would be ineffective, would not achieve the objectives outlined by the Minister, which I support, and would probably be unconstitutional. The new approach has a much better chance of standing up constitutionally and being effective in achieving the objectives outlined.

I would still like the offence of witness intimidation included in the section. It is the only addition I would make to the list of offences, although I am not certain how best this could be done. It is crucial in the context of taking on criminal gangs.

I am impressed by and support Deputy Howlin's proposal. At 4 p.m. last Thursday, we completed Committee Stage without having had an opportunity to discuss these issues or refine the provision. It is possible that, on reflection, the approach could be further improved, particularly be taking advice from people who clearly want to give it.

We have a form of words.

I do not dismiss any lobby on this issue. The Oireachtas has established bodies such as the Irish Human Rights Commission which have a role and function in highlighting issues that may make us uncomfortable at times but need to be highlighted. I have spoken to genuine individuals from the Bar and Law Society who have highlighted genuine concerns, not least regarding this provision.

Due to the Minister's change of stance on the question of having further debate and the considerable improvements made to the original proposal, it may be that, with more time, the section could be further improved and made more finely focused and effective. For these reasons, I believe Deputy Howlin made a good point.

The Deputies will appreciate the Bill will proceed through this House, go before the Seanad and return to the House.

Will it come back to the House?

Yes. I do not want to do something which is unconstitutional or unworkable. I do not want to have window dressing which does not have much practical effect. I suggest to Deputies that while the purpose of the section has general support, we need to address the question of whether it will be effective in achieving its aim. I propose to review the section and if I can recalibrate it to make a sensible and worthwhile provision, in other words, if it is worth the bother, I will do so. If I cannot do so, it will be no skin of my nose to agree with Deputy Howlin and return to the section on another day. I am not in a position, on the hoof, to come to a judgment on this matter at this point, as suggested by Deputy Howlin. If I was genuinely convinced the provision should be abandoned, I would do so immediately.

As the Minister will appreciate, it is difficult for Deputies to make a judgment when we do not have a scheme before us.

I accept that. If I recalibrate the provision, I will return to the House with the recalibrated version. I do not want to discard it on the hoof on the grounds of difficulty without consulting my colleagues in Government, whom it would be a courtesy to inform of any proposed change in this matter, and ensuring that a recalibrated section with a narrower focus is worth having in place. If it is not worth having, saving my face is a rather dubious exercise and I do not propose to have something pointless on the Statute Book. The approach I propose to take is to examine this section as it goes through the Houses and either recalibrate or abandon it.

Will the Minister introduce a further amendment for tomorrow to change or abandon the section?

I do not know if I am allowed to table an amendment for tomorrow to abandon the section.

I am sure we can reach an agreement with the consent of the House.

We can recommit.

I do not believe we can recommit a second time. The Minister has asked a question on his position. May he table an amendment for tomorrow on Report Stage and, if necessary, withdraw it?

The Chair cannot rule in advance.

If the Minister produces an amendment, even one which is not formally part of the proceedings, Deputies can agree that it may be tabled in the Seanad and formally introduced in the House later. We will find a way around the problem if we take an agreed approach. On that basis, I am prepared to pass the ball back to the Minister to give him a chance.

The Minister indicated at the start of the debate that he would listen to Deputies and in fairness to him he has done so. In re-examining the section I ask him to consider a number of cases other than the two I cited to highlight the issue of proportionality and demonstrate that penalties should not be arbitrary. Other circumstances must be taken into account to ensure we do not fill more jails. We will probably need three or four prisons of the size proposed for the Thornton Hall site if the section is enacted.

As I stated, this legislation is being rushed. It is crazy that at this point, to all intents the concluding Stage of the Bill, it is proposed to remove or substantially change a section. My opposition to mandatory sentences has not changed but at least if the Minister were to proceed in the manner he has suggested, the legislation might become more measured and focused, which is his stated intention.

If the section enters into force, will it operate retrospectively? Will it affect those who have been sentenced for the crimes to be listed in the Schedule? If so, will it be necessary to make all such persons aware that circumstances have changed and they will face a different, substantial penalty if they engage in the types of activity cited in the legislation? It should be noted that such persons face stiff penalties as matters stand. The difference is that sentences would be predetermined. The Garda and the Courts Service should be able to bear this out. People who are caught for a second offence are often more susceptible to turning State's evidence against fellow gang members to avoid prison. In that instance, there is no incentive if it is stated in the Bill that one must serve three quarters of the maximum for a second offence. We need to be careful we do not prevent somebody from getting a conscience or at the least from being too afraid to go to jail for a second time. Information from such a person would be liable to help us prevent further crime.

The DPP would probably have to weigh this up but if we are too prescriptive, certain matters would be prevented by such black and white legislation. I thank the Minister for at least reconsidering the section. We can come back to it.

Amendment, by leave, withdrawn.
Amendment No. 70 not moved.

I move amendment No. 71:

In page 18, line 27, to delete "12 months" and substitute "5 years".

Amendment agreed to.

I move amendment No. 72:

In page 18, line 28, to delete "who commits" and substitute "who is convicted on indictment of".

Amendment agreed to.

I move amendment No. 73:

In page 18, between lines 39 and 40, to insert the following:

"(2) Subject to subsection (3), where a person (other than a person under the age of 18 years)—

(a) has been convicted on indictment of an offence specified in Schedule 2 (in this section referred to as “the first offence”),

(b) has been sentenced to imprisonment for a term of not less than 12 months in respect of that offence, and

(c) who commits an offence specified in Schedule 2 (in this section referred to as “the subsequent offence”)—

(i) while serving the sentence of imprisonment, or

(ii) during time remitted from that sentence of imprisonment,

the court shall, in imposing sentence on the person in respect of the subsequent offence, specify as the minimum term of imprisonment to be served by the person, a term of not less than three quarters of the maximum term of imprisonment prescribed by law in respect of such an offence and, if the maximum term so prescribed is life imprisonment, the court shall specify a term of imprisonment of not less than 10 years.".

This amendment improves the section. The Minister has had the opportunity to study it.

It can all be captured by the Minister's response.

If the Minister is not happy to accept it as it stands——

I will reconsider it.

I will withdraw it on that basis.

Amendment, by leave, withdrawn.
Amendments Nos. 74 and 75 not moved.

I move amendment No. 76:

In page 18, between lines 41 and 42, to insert the following:

"(a) section 2 of the Criminal Justice Act 1990;”.

The general rule is that where a person is convicted of an offence in the Second Schedule and within seven years commits another offence, then the sentence for the second offence must be at least three quarters of the prescribed maximum. That is the general position under subsection (1). However, as we know, in regard to mandatory sentences, subsection (2) identifies the firearm and drug trafficking offences where there is already a mandatory minimum sentence procedure in place.

Amendment agreed to.
Amendments Nos. 77 and 78 not moved.

I move amendment No. 79:

In page 19, line 16, to delete "Subsection (1)“ and substitute “Subsections (1) and (2)”.

My colleague, Deputy Perry, has associated himself with this amendment, which concerns a sea fisheries issue. Fishermen cannot have much to do with the gangland criminals we are targeting in this section. I might return to the issue on Report Stage. Has the Minister a note in this regard?

The problem is we have lots of notes.

We are confused by them at this stage. I may return to the amendment on formal Report Stage.

Amendment, by leave, withdrawn.
Amendment No. 80 not moved.

I move amendment No. 81:

In page 19, lines 36 and 37, to delete all words from and including "committed" in line 36 down to and including "years)" in line 37 and substitute the following:

"of which a person (other than a person under the age of 18 years) is convicted on indictment".

Amendments Nos. 81 to 83, inclusive, are consequential on amendment No. 72 in so far as they refer to convictions on indictment rather than commission of offences.

Amendment agreed to.

I move amendment No. 82:

In page 19, line 43, after "respect" to insert "of a conviction on indictment".

Amendment agreed to.

I move amendment No. 83:

In page 20, line 7, after "of" to insert "a conviction on indictment of".

Amendment agreed to.
Question proposed: "That section 24, as amended, stand part of the Bill."

We have a problem with this section. We are not sure but if we disagree at this stage——

On the basis already discussed, it may stand part of the Bill for the present.

Subject to the caveat we have already entered.

While we have the aim of a more finely focused and calibrated section, we will let it through at this stage.

Question put and agreed to.
SECTION 25.

We move to amendment No. 84. Amendments Nos. 85 to 92, inclusive, are alternatives. The amendments may be discussed together.

I move amendmentNo. 84:

In page 21, to delete lines 12 to 45, to delete page 22 and in page 23, to delete lines 1 to 39.

Amendments Nos. 84 and 89 to 92, inclusive, are in my name and relate to crime prevention orders. At present, before a convicted person is released, it is often possible for the person to be granted temporary release. During that period, the person is usually subject to something similar to what the Minister proposes in that the person is not allowed to associate with certain people or get involved in certain activities.

When a person is sentenced, the judge takes into account all the facts and conditions. The idea is supposedly that when the person is convicted, he or she will go to jail, serve the sentence and pay his or her dues to society. However, I am of the view that imprisonment is meant to rehabilitate or, if need be, retrain a person so he or she would have a skill when coming out of prison. If enough time, effort and investment are put in to ensure this happens, such a person will not reoffend upon release.

There is concern with regard to the crime prevention orders as laid out in the Bill. The Irish Council for Civil Liberties raises a number of concerns and I have other concerns. By itself, the crime prevention order was not supposed to operate beyond the full term of the maximum sentence — my amendment No. 90 seeks to ensure this happens. The purpose of the order is supposedly to govern behaviour during the balance of the sentence up to the maximum. The ICCL has stated that the new orders would enable the courts to impose additional conditions on people who have already served a sentence and that breaching these conditions would be an offence. However, while one of the conditions might be to stay away from a certain location, to be in that certain location is not in itself criminal conduct.

The problem is we would create or criminalise the offence by taking that route. Similar to other areas of the legislation, we need to tease out the issues more. I have not heard any major clamour for this. The intention, obviously, is to prevent recidivism and to discover who reoffends, the reasons for doing so and ways to prevent them from doing so. This is important but, as I said earlier, we need to implement the first part of the project first, namely, to put the investment into education in jails and into support for those going through drug rehabilitation in our prisons. We need to put adequate supports in place so that when people leave prison they will have access to housing and additional support.

People who have served a long sentence will have lost many of their connections with society, family and friends and in many cases will be left on their own. I know the probation and welfare service has a role in this regard as well as other organisations. However, it does not have a big enough role or budget to ensure that people who fall off the wagon or who may be inclined to fall off the wagon are supported. The proposal in the Bill is a bit ahead of itself in this regard and we would need more time to tease out the issue.

Perhaps the Minister will outline in greater detail from where the proposal arose, other than coming as a result of one report. Will he also indicate whether there has been a clamour for such a provision? It seems similar to provisions in the draft legislation in England in terms of serious crime and serious crime prevention orders. If there are examples of how these work in another area or jurisdiction, they might help inform us better.

I welcomed the crime prevention order on Second Stage, but I have some questions on it. I am sure the Minister saw the article in today's edition of The Irish Times by a distinguished former Attorney General which cast serious doubt——

I saw it, but do not agree with it.

I am interested in the Minister's view on it. The former Attorney General calls them "crime prevention orders". The point is they are very vague in the structure of the Bill. What is the Minister's view on that? We need to address that because if there is a lack of guidance, what impact will that have on their constitutionality?

I feel crime prevention orders are good as a mechanism to deal with the situation. We talked about having post-release conditionality on the last occasion we dealt with the legislation. The notion we can have conditionality linked to early release, such that people will be debarred from certain areas at certain times for a certain period of time is good. However, I would have liked more time to think the issues through and to ensure it was presented more clearly and understood more fully.

The first amendment in my name looks innocuous and seeks to delete the word "an" and insert the words "a civil" in line 20 of page 21. The Bill reads: "the court shall consider whether to make an order ... ". I suggest this should be changed to "a civil order". I suggest this in order to replicate the language of the ASBO legislation and make it clear that it is a civil order of the nature of an injunction rather than a punishment. This is what we did in the case of ASBOs to make it clear that an additional punishment was not being given to an individual.

In passing, some members of the Law Library already call these crime prevention orders "super ASBOs".

That is what they are called in Britain.

Is that where the term originates? I only heard it for the first time during the week. These super ASBOs have a role, but they are probably too vague as proposed in the Bill and could be refined rather than abandoned.

Amendment No. 88 seeks to insert a right of appeal. The section does not currently provide for a right of appeal and is defective in that regard. I suggest that on page 22, after section 11, we insert a new section 12 to read: "(12) The offender or the prosecutor may appeal to the Court of Criminal Appeal against a decision of the court referred to in subsection (1) as to whether to make or not to make a crime prevention order or as to the terms of the order.” This amendment might capture the issue of an oversight in terms of the vague power conveyed. If there was a case where an unreasonable imposition was made, there would first be a requirement in justice for an appeals mechanism and, second, some mechanism for a second opinion on the terms of the crime prevention order, particularly if it was outrageously broad, unreasonable, overly burdensome or did not properly take into account certain factors in determining it. This would give people more confidence in the orders, would certainly do no harm to the concept and would make them more robust and just.

I like the idea of crime prevention orders but have questions with regard to their practical application and benefits. They are a good idea in principle. I would like to hear more about their practical application in the UK and elsewhere and the benefits derived there. There is a lack of direction in terms of how the section is framed. Questions arise as to what practical measures have been or are intended to be put in place to enable courts to decide whether to make such an order. What type of orders may be made by courts? Will probation reports be required? Will prosecuting gardaí be expected to advise the court or prosecuting counsel in respect of the matter? Who will instigate the process? We need more information on the process.

These orders seem to be an import from the UK, not that I hold that against them. However, we need to know more about them. Have they worked well there and what are the downsides? What difficulties have arisen in respect of crime prevention orders there? Have these orders been in operation elsewhere? These are issues that must be considered. As Deputy Howlin mentioned, there has not been any debate, informed or otherwise, on the practical benefits of crime prevention orders.

Some areas of this section need further consideration. Perhaps the entire section should be given more detailed consideration.

Section 25(2) states:

The court may specify in a crime prevention order such conditions as it considers necessary for the purposes of ensuring that while the order is in force—

(a) persons who are likely to be adversely affected by the presence of the offender are protected,

How is the court to ascertain that or who will instigate it? Is a victim entitled to come before the court and say he or she will be afraid when the person comes out of prison on remission, early release or otherwise? I am in favour of the victim having a voice and role in this situation but I am not sure about the mechanics involved in bringing the views of the victim to the attention of the court to trigger the imposition of such an order.

If we had proper time to tease this out in detail many other points would arise but one that stands out is that throughout the section there is reference to notifying an inspector of the Garda Síochána, and I am not sure why. I am mindful of areas such as the Beara Peninsula in my constituency which is virtually the size of County Louth but where there is no inspector of the Garda Síochána. I recently brought to the Minister's attention that there were only a sergeant and a garda operating in the area.

That will change shortly.

I am glad that, as a result of pressure, the situation has changed. Despite this, however, while there are a sergeant and four gardaí in Castletownbere and one other garda in Adrigole there is no inspector. The inspector crops up in every section where there is a reference to a member of the Garda Síochána.

I am sure this will have no relevance in Beara, because thankfully the people there and particularly those who will vote in the next election will have nothing to do with criminal activity. Outsiders, however, might come into the area.

I am interested in the Tánaiste's response to the general issues and the specific points I have raised.

In the course of the Criminal Justice Bill we provided for partly suspended sentences. The court in those circumstances can sentence a rapist, for example, to ten years' imprisonment, five of which would be served and five of which would be suspended on whatever conditions the court established, one of which might be that the rapist not go near the victim. That would be a straightforward case.

In regard to people who receive a full sentence the question arises as to whether the court should have the right to make a preventive order for the period after the person has served a term in prison. This would impose necessary conditions to either protect persons who are likely to be adversely affected by the presence of the perpetrator, or keep the perpetrator on the straight and narrow after his or her release. It is analogous to a partially suspended sentence and its purpose is to enable courts imposing a lengthy sentence, subject to the maximum possible sentence, to impose a condition post-release of a kind that is considered reasonably necessary for either of those purposes. That is a reasonable proposition because it has a deterrent effect, and a reassuring effect for the victims of crime.

This is not mandatory but if a court imposing sentence says that a person has been seriously involved in the drugs trade it can provide that he must notify the Garda of his whereabouts when he is released. This is similar to the requirement that sex offenders notify the Garda in certain circumstances of their whereabouts. It enables the court to impose on an individual receiving a prison sentence a post-release obligation which will keep some tabs on the individual without putting him in prison or holding a suspended sentence over him, and give the Garda some handle on that person. It is not wildly controversial and does not ask the courts to do anything they could not do if they were minded to structure a suspended sentence through that method.

I take the point that there does not appear to be a direct right of appeal but under section 13 there is a right to vary it and we might provide for a right to appeal against a refusal to vary the order. I do not envisage the prosecution appealing against a refusal by the courts.

Section 13 covers the court that made the determination.

If a judge were to impose an unjust set of conditions as can happen——

I take the Deputy's point that maybe we should do both. I agree. It could be improved by having some form of appeal against it.

Surely there would be a right to appeal against the original order which would probably be a combination of custody plus crime prevention.

Deputy Howlin, working on the analogy with the ASBOs, referred to this as a civil order. It is an order consequent on a conviction which distinguishes it from an ASBO. It is like a criminal bankruptcy order.

Is it not then an intrinsic part of the punishment?

It would be better to see it that way. That is why I am not attracted to the Deputy's amendment calling it a civil order. In those circumstances it would be better to make it appealable as the condition of a suspended sentence is appealable to the Court of Criminal Appeal. It would be more logical to deal with it as an order consequential on a conviction and make it appealable.

Will the Tánaiste introduce an amendment to that effect?

Yes. This is not constitutionally infirm for vagueness.

When Attorneys General differ.

If we were not to proceed with section 24 I might be attracted to widening the Second Schedule to cover rape offences, which have nothing to do with gangland offences, so that it would comprehend them as well. Crimes are sometimes committed such as shooting at a neighbour or members of a family over a land dispute or rapes where the victims are in terror for a long time and even when the offender is released, they are still in fear of him or her.

Is there a case for including rape anyhow?

Yes, but I do not wish to include rape among gangland offences because I would be up to my ears in it.

Somehow or other the Minister should find a way. Rape is the obvious instance in which the offender, upon release, should go nowhere near the victim.

The problem is they all relate to the same Schedule.

I must be on one side of the fence or the other in this Schedule.

Or divide the Schedule or draft another Schedule.

I will take that on board in taking a strategic view on the section.

What about the inspector issue?

If any member of the Garda is enabled to accept notification by an offender, the offender will say, for example, that he or she told Sergeant Clohessy at the fair in Castletownbere last week where he or she was living. There must be formality and, therefore, an inspector or superintendent should preform this function. The inspector route was chosen because his or her knowledge would be more localised.

A number of areas are not covered by inspectors.

Yes. The Deputy has spent half his life speculating on the outcome of the forthcoming general election. However, if the House was to be graced again by Paddy Jer Sheehan, perhaps the Beara Peninsula would be dripping in gardaí.

The Minister is suggesting the current Fine Gael Member for west Cork does not have the same interest in Beara. Sergeants should perform this function because they are deployed in every area. For example, the Garda deploys only two inspectors in my constituency, which is larger than many counties.

The Deputy's constituents are very law abiding.

Deputy Jim O'Keeffe is considering this issue from the perspective of Beara and south-west Cork. Sergeants do not necessarily have a geographical function whereas an inspector, in most cases, is responsible for an area. A sergeant may only be deployed in a station and he may not have a geographical responsibility.

There may not be inspectors in the area.

I have sympathy for the point raised by Deputy Jim O'Keeffe. Perhaps in this new modern era, a desk sergeant should be reported to by offenders who are released so that the notification would immediately be input into the system.

I will examine that suggestion.

The officer in charge of the Garda station in the area the offender resides could be used.

That would mean the information could be input into the system immediately and a garda tracking the individual could access the PULSE system.

My amendments seek to ensure appeals are permitted within a short period. A breach of these conditions is criminal conduct and the individuals involved should be entitled to free legal aid because, in this instance, they have been recently released from prison and they might not necessarily have the means to make an appeal against crime prevention orders. I remain to be convinced that these orders are well thought out. What is the difference between the restriction of movement orders provided for under the Criminal Justice Act 2006 and crime prevention orders?

I understand what is being proposed and I agree the orders should be used to prevent the victims of crime living in fear when the offenders are released but I presume approaching a garda would help people who feel they are being intimidated or somebody is stalking them or seeking retribution for the time he or she spent in prison. These orders are intended to ensure the perpetrators of the crimes do not live in the same district as their victims or do not interfere with them in any way. We need to be careful because people have the right to freedom of movement, particularly if they have served their time. The exception is sex offenders, particularly predatory sex offenders and child abusers. Their movements should be monitored and recorded to ensure they do not engage in further sex crimes.

Crime prevention orders sound good but, at the end of the day, the gangland figures at whom they are aimed could not give a hoot about being restricted in their movements and who they can meet because most of their activities can be carried out by telephone. The orders do not prevent people from visiting them and engaging in further criminal activity. I am not sure about such but I will withdraw my amendments on the basis that they can be debated again tomorrow.

Amendment, by leave, withdrawn.
Amendment No. 85 not moved.

I move amendment No. 86:

In page 21, lines 20 and 21, to delete all words from and including "the" in line 20 down to and including "imprisonment," in line 21 and substitute the following:

"the court shall, in addition to that sentence of imprisonment, consider whether it is appropriate to".

Amendment agreed to.
Amendments Nos. 87 to 92, inclusive, not moved.
Section 25, as amended, agreed to.
SECTION 26.

Amendments Nos. 94 to 100, inclusive, are related to amendment No. 93 and all may be discussed together.

I move amendmentNo. 93:

In page 24, line 12, to delete "25(10)" and substitute "25(11)".

Amendments Nos. 93 and 94 are related but the remaining amendments relate to Part 4. I would prefer to take the first two amendments only.

Is that agreed? Agreed.

Amendment agreed to.

I move amendmentNo. 94:

In page 24, line 15, to delete "25(12)” and substitute “25(13)”.

Amendment agreed to.
Section 26, as amended, agreed to.
SECTION 27.

Amendments Nos. 95 to 100, inclusive, may be discussed together.

I move amendmentNo. 95:

In page 25, to delete lines 10 to 46, to delete page 26 and in page 27, to delete lines 1 to 4 and substitute the following:

"27.—The Act of 1984 is amended by the insertion of the following two words "or mainly" after "solely" in Section 18(1).".

This concerns the section allowing inferences to be drawn in certain circumstances, representing a major shift in the law apart from the provisions of the Offences Against the State Act, which have been used only on rare occasions of late and has not been effective.

There needs to be a protection for people to prevent them from incriminating themselves. The Dean Lyons case is an example of how somebody can be coerced into incriminating himself. In other jurisdictions, in particular the United States, a person is allowed to have a solicitor present during interview. If television programmes about the US justice system are anything to go by, I do not know how the police ever get any convictions because solicitors tell their clients not to say anything.

People are wary of their answers being recorded and how they might look. They might have reasons for not explaining their whereabouts or for refusing to account for marks on their person or objects in their possession, which might be innocent or, perhaps, the result of an extra-marital affair which they do not want to put in writing or give as video evidence. Thankfully, videos will not now be as freely available or be used against individuals, as has happened. People have had to produce them for their crime bosses and I can envisage circumstances where men might have to produce them for their wives to explain why they were in a certain place at a certain time.

The interference with the right to silence and the right not to incriminate oneself is a concern and it has been raised in connection with inferences drawn from the silence of people brought before courts or interrogated under the Offences Against the State Act. I do not have time to go into great detail on this and to adduce examples from other jurisdictions, as I would like. Has any study been done on the consequences of people remaining silent or refusing to account for movements, marks on their person or objects in their possession? Has any study shown that reserving that right severely impedes investigations and prevents convictions in the courts?

All Members have a copy of the documentation of the Irish Council for Civil Liberties and the Irish Human Rights Commission, so I will not quote from it. Thankfully, it highlights their concerns, as is their right and obligation to do so. If we had more time, we could have gone into greater detail on their comments.

I urge caution on this proposal. My preference is for the section to be withdrawn to ensure we do not trample upon rights gained over many years and undermine protections for people against incriminating themselves or owning up to something they did not do. The potential for miscarriages of justice has been demonstrated in a number of cases not only in this State, but in others.

We are dealing with serious issues and it is important to have adequate time to tease out the implications of the proposals. The Criminal Law Review Group, under the chairmanship of Dr. Gerard Hogan SC, dealt with the issue of the right to silence in a 50-page preliminary report and, more extensively, in a final report containing 100 pages, so there are obviously many angles to the issues. It is also interesting that the proposals of the Minister do not seem to accord with the recommendations of the group, which raises questions.

The criminal law review group decided to leave until its final report the question of amending the law on existing practice, so as to permit comment by the prosecution and the trial judge on the fact that an accused has not given evidence at a trial. To make the issue even more complex, in the final report a majority of the group considered that neither the trial judge nor the prosecution should be permitted to comment on the failure of the accused to give evidence at his or her trial. Even within a very experienced and highly qualified group, there is a difference of opinion on that point.

In considering the issue of inferences we should have before us not just the views of the Criminal Law Review Group, the Irish Human Rights Commission and others, but also the view of practising lawyers outlining the benefits to be derived from an approach dealing with inferences. We are not starting from scratch; the Bill proposes to amend sections 18 and 19 of the Criminal Justice Act 1984. We are not talking about entirely new legislation but legislation that has been in place for more than 20 years.

What is striking about existing provisions and other measures in law relating to the drawing of inferences from silence is how rarely they are used, which gives rise to questions. Why are they so rarely used?

The reason is that the only person who may ask the question is the arresting garda under the 1984 Act, which is bizarre.

If there are practical difficulties, we should address them.

They are addressed.

That is an answer to one of the many questions I had on the approach. I am advised that provision is made in section 7 of the Criminal Justice (Drug Trafficking) Act 1996. Coincidentally, both Acts to which I refer were enacted while Fine Gael and Labour were in office. What use has been made of that Act and what benefit has it been in bringing to trial and convicting people? My advice is that when hardened criminals and gangland desperadoes are arrested, they remain silent. Provisions already exist, including under the 1996 Act, for drawing inferences from such silence. Why has that not happened already? If this legislation is to be of such benefit in the fight against gangland crime, what is the big difference between it and what already exists?

The provisions in the Bill do not seem to accord with the proposals of the Criminal Law Review Group. Why is this so? Do the proposals go far enough? I understand from the Criminal Law Review Group that any changes we make in this legislation should be accompanied by changes in the judges' rules. Why are we not doing so? It appears we are doing only half the job. The analysis of the review group was very thorough. I would be much happier with an approach that followed its recommendations. I do not understand why the Tánaiste has not proceeded accordingly. In the circumstances, I question whether the changes proposed will be effective in dealing with the fundamental objective of bringing serious gangland criminals to justice.

I will not rehearse the ground already well travelled by my colleagues. I approach this legislation as a non-lawyer and as a practical citizen. Some of the niceties of court bamboozle people. For example, a person who has heroin on the heel of his or her shoe might not give any explanation. The notion that he or she is not required to give any explanation strikes most people as odd. As Deputy O'Keeffe said, the Tánaiste needs to explain two things so that we can have confidence that we are moving in the right direction. While I do not wish to sound like a total Luddite in these matters, the right to silence seems to be a sacred cow that cannot be touched or tampered with. Changing it is almost regarded as being a fundamental assault on personal liberty.

In the past the House has modified that right in certain circumstances. The Tánaiste is now proposing that we broaden it to other offences while introducing more safeguards to balance it. Two questions, which have already been posed, need to be answered. Why is the Tánaiste not transposing the exact proposals from the Law Reform Commission? Is he confident that the proposals will have practical effect given that the law in this area in the past has not had the practical effect we would have wanted?

People claim that the right to silence is being changed. I invite the Tánaiste to set out clearly the changes proposed here. It is proposed that they would apply to proceedings related to an arrestable offence. Inference may be drawn from a failure to mention any fact relied upon in the person's defence in subsequent proceedings. Inferences may be drawn from failure to mention a fact at the time of being questioned, charged or informed which in the circumstances existing at the time clearly called for an explanation when so questioned, charged or informed. Failure to mention facts could arise during questioning, upon being charged or upon being informed by the garda that the person might be prosecuted for an offence.

These relate to the timing. When drawing an inference, the court or the jury can have regard to the time at which the fact is first mentioned by the accused. The Tánaiste talked about sequencing so that the judge or jury can have regard to the disclosure of the information. Failure to mention a fact can be treated as corroborative of other evidence but not convincing evidence on its own.

Tomes have been written on this area and we need to give as simple an explanation as possible to the public as to what is proposed. How does it change the clear and long-established right to silence and be protected from self-incrimination? Why is the provision necessary and why will it be effective? I invite the Tánaiste to present his argument in the clearest possible terms why this proposal represents the correct and effective formula.

Subject to some comments which I will make later, it has been the case since 1994 in England and Wales — I am not sure about Scotland — and since 1988 in Northern Ireland that inferences can be drawn from one's failure to mention certain facts, when one is being interviewed by the police, which one later relies on as part of one's defence. Does that trench from the right to silence? The right to silence has never been the absolute right that is contended for. When I went to King's Inns many years ago, for example, I clearly remember learning that if a girl had been raped, was confronted in the aftermath with the alleged rapist, identified him as the rapist and he remained silent in those circumstances, the jury was entitled to have regard to that in determining whether her accusation was true. That was part of the law at the time.

It moved from there to a proposition that no inference could be drawn from a failure to make a statement when in Garda custody. That was the situation up to 1984, when we provided for Garda detention for the purpose of questioning. That law provided that presence at a particular place or marks on one's clothing were circumstances where inferences could be drawn from the person's failure to account for them when asked about them in the course of interrogation, provided the questions were put to the person by the arresting garda. In the 1996 and 1998 Acts, the matter was moved further.

Effectively before 1996 it had to be the arresting garda.

The arresting garda had to put the questions.

I was a Member of the Seanad and I recall the debate in 1984. At the time, the notion of detention for questioning was novel.

Yes, and huge protection had to be provided. We have, in principle and in respect of drug trafficking and the Offences Against the State Act——

In the 1996 Act was there the same issue of the arresting garda?

I am not sure, I will check it. The 1984 Act provided for the arresting garda. We now have a different situation. First, videotapes are made of these interviews and, second, there is a different understanding of the right to silence. The right to silence, as I understand it, is a right not to be forced to incriminate oneself. It is categorically different from circumstances where if one advances a proposition at one's trial, somebody is entitled to draw an adverse inference if, when one was asked about that point beforehand, one said nothing. The adverse inference is that the explanation given is not true. If it is true now, why did the person fail to account for it when asked about it?

The question is when did the person make it up.

Yes. This is not a general proposition that a jury can look at an accused person being interrogated and staring at the wall and decide that if the person was innocent, he or she would say something. It cannot decide on that basis to convict. The person must be asked about a proposition which he is advancing in his defence. That is the difference. An inference can be drawn from his failure to mention it when questioned, where he later relies on it as part of his case. It is a somewhat different situation.

In the Murray case, the European Court of Human Rights considered the drawing of the inference to be unfair where the person in custody had been denied access to a solicitor for a critical period at the commencement of his detention. That is why the Bill provides expressly for a reasonable opportunity of access to a lawyer as a condition for the drawing of any adverse inference. I believe the Human Rights Commission has suggested that there should be a lawyer present at all times before an adverse inference can be drawn. That has not come from European jurisprudence and this island does not have a history of providing that a lawyer must be present throughout all interrogations. If we did have such a provision, by simply not having a lawyer a person could immunise themselves against the operation of this Bill. The Bill provides for reasonable access.

As Deputy Howlin said, the provisions for drawing inferences in this Bill contain more safeguards than the 1984, 1986 and 1998 Acts. The first condition is that the matter in question called for an explanation. Second, the person cannot be convicted solely or mainly on the inference. In other words, there would have to be a prima facie case of sorts, independent of an inference being drawn. Third, there is an explicit condition of reasonable opportunity of access to a solicitor.

In response to Deputy O'Keeffe's question about the 1996 Act, the Act refers to a member of the Garda Síochána, not the arresting member. This Bill is a well balanced set of proposals. It puts Ireland in a similar position to Britain under the 1994 Act. However, the British Act includes a measure which I have not included in this legislation. Perhaps a future Dáil will consider inserting it. In the English trial process since 1994, at the end of the prosecution case the trial judge informs the accused, in front of the jury, that there is a case to answer and that he is entitled to give evidence and not to give evidence. If he does not give evidence, the jury can draw whatever inference it considers appropriate from it. In case people think I am going out on a limb with this Bill, that provision is not part of this legislation. People might believe it should be, but it is not.

Another point should be borne in mind. Until the 1890s in England and the early 20th century in Ireland, an accused was not competent to give evidence in a trial. The 1924 Act in Ireland, which deals with failure to comment on an accused remaining silent, was passed in the context of a huge change in our criminal procedure. The accused was being made a competent witness, as was his spouse. Until then, an accused was not entitled, as of right, to participate in the trial process. I mention this because some people appear to think that since the dawn of creation the criminal law has always been the same and that the rights of an accused in a criminal trial have always been the same. That is not the case. The criminal trial process has changed dramatically and moved on with time. The accused was not allowed to testify at one stage and was made a competent witness at a later stage. Britain has now gone so far as to provide that if an accused does not take part, a jury can draw an adverse inference generally from that failure to testify.

There are two further questions. First, can the inference be generally corroborative of the prosecution case? Second, should the inference be simply related to the credibility of the accused, which is what I understand Dr. Gerard Hogan's committee sought? My view is that it is more appropriate to have our law in line with the law of Northern Ireland and Great Britain, and to state that it is corroborative of the prosecution case. Let us remember what we are now providing for in respect of section 29, which reads:

Where in any proceedings against a person for an arrestable offence evidence is given that the accused—

(a) at any time before he or she was charged with the offence, on being questioned by a member of the Garda Síochána in relation to the offence, or

(b) when being charged with the offence or informed by a member of the Garda Síochána that he or she might be prosecuted for it,

failed to mention any fact relied on in his or her defence in those proceedings, being a fact which in the circumstances existing at the time clearly called for an explanation.

This is crucial. It is not simply a question of where a person was the previous night. This is something which clearly called for an explanation from him or her when so questioned, charged or informed, as the case may be. The section states that:

The court, in determining whether a charge should be dismissed under Part IA of the Criminal Procedure Act 1967 or whether there is a case to answer and the court (or, subject to the judge's directions, the jury) in determining whether the accused is guilty of the offence charged (or of any other offence of which he or she could lawfully be convicted on that charge) may draw such inferences from the failure as appear proper; and the failure may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence in relation to which the failure is material.

Subsection (2) states: "A person shall not be convicted of an offence solely or mainly on an inference drawn from a failure to mention a fact to which subsection (1) applies." It must be a fact relied on in his or her defence. It does not mean the person must testify. It is a fact relied on in his or her defence, therefore, it is the credibility and truthfulness of the entire defence in the case, rather than the credibility of the accused, that is at issue.

I honestly do not see that this is a dramatic change in our law. I tend to agree with Deputy Howlin. Where somebody has been asked a question which demands an explanation at the time, refuses to comment but comes up with the self-same explanation at a later point, common sense demands that a member of a jury looking at that would consider this capable of undermining the allegation of fact being put before him or her at that point.

I find it very difficult to understand what is the objection to this. Juries operate under the rule of law. How is the presumption of innocence or the right to silence affected if somebody puts forward a fact in his or her defence in a case and, at a critical point in the investigation, failed to mention that fact? How are the rights of the accused in those circumstances curtailed or subverted if somebody can draw an inference from that set of circumstances that is adverse to the defence? I do not know and have never seen any cogent explanation for it.

There has been a knee-jerk reaction to this proposal. How is it right that one's presence at a particular place is something which could call for an explanation since 1984 and the presence on one's clothes of a mark or substance could call for an explanation but some other fact which is central to one's defence does not call for this explanation and no inference can be drawn? I do not see any logical reason, if the 1984, 1996 and 1998 Acts were justifiable in any shape or form, we should now say we will keep it narrowly confined to substances and location in a particular place and will not bring into the equation other things such as the money under the bed or a defence that the machine gun was left by the lodger the previous night and the defendant was not aware of it with the defendant producing the lodger from the previous night to tell the court he or she left it there. Why when the defendant was asked about it on the day did he or she not come up with this explanation? Why should a jury try a case with blinkers and why should the criminal justice process preclude common sense inferences being drawn from fairly straightforward sets of circumstances?

On a point of order, I am very conscious that we have 35 minutes left.

I do not want to go on at too much length.

It is very useful to have that discussion because many people outside did not understand this provision. I wish we had time to discuss every section.

I believe very strongly in this proposal and that it is reasonable. I will not go into the matter any further. I have listened with an open mind to much of the criticism that has been directed at it. Much of this criticism is conservatism, which defies common sense. It is simply a desire to leave everything as it is and a belief that everything is perfect as it is when this is not the case and where juries, properly instructed under the present law, must be told not to draw an inference in particular circumstances where anybody trying to apply common sense to the facts of a case would draw such an inference. That is all this proposal is about.

I have no problem with the principle involved here, but I want to elicit some further information. Why is it that the existing inferences have not been effective? I take the point that under the 1984 Act, it is confined to the arresting garda, but the 1996 Act was not so confined. Why has this not been effective? Why will the new provision be more effective in such a situation? I want to get effective and practical results from this.

Why is it that the recommendations of the expert group on criminal law reform have not been followed? Why has the Minister gone off on a solo run, having set up this expert group of people we all recognise, trust and respect? He has not followed its recommendations.

In respect of the additional proposals of the review group, why has the Minister not taken on board the proposal in respect of an issue touched on in an amendment of mine? This amendment proposes that there be changes and amendments as are necessary to the judges' rules and, in particular, to the form of caution given to persons to whom this part of the Act applies. Lastly——

I am covering that point in amendment No. 102.

The Minister is bringing in——

A new form of caution.

The Deputy has one as well.

The Minister has responded to that point, although we have not come to it yet.

We do not have time to get to it.

That is the point.

Strong points have been raised by people outside this House who are entitled to raise concerns. Some of them are recognised groups like the Human Rights Commission, while others are more loosely organised groups like groups of lawyers from the Bar Library. At the very minimum, would it not have made sense for us to have the opportunity to discuss the points raised by these groups with them before putting the Minister's proposals into the legislation? Would it not make sense to do so from the point of view of achieving an effective and practical outcome that will be of use and benefit in the fight against gangland criminals? Would it not have been more sensible to follow that course of action?

In respect of the views that have been expressed by people outside the House, they are entitled to those views. However, I find it very surprising that in all their letters to the newspapers and speeches on television, none of them pointed out that this has been the law in Great Britain since 1994 and in Northern Ireland since 1988. They made me look like some wild experimenter who was coming up with something that had never been tried anywhere else before. They did not give me credit, which Deputy Howlin has done, for bringing in safeguards here which were not present in previous measures put before the House in this general territory. I do not understand——

It might be of concern that the Minister is weakening the existing law. We have not had the opportunity to discuss that point.

The funny thing is that one would not have gathered any of that from the comments to which I have been subjected over the past week.

We have not had the time.

The Minister's situation is a matter of concern to the Minister. I am concerned that we get a good outcome and a practical, effective law.

Let us get on with it then.

That is why I do not reject views from outside. We should listen to them, question and consider them and then end up with as solid and effective law as possible. The difficulty is that we are largely expected to take the Minister's proposals on trust. In the light of historic performance, that is a little difficult to take.

Amendment, by leave, withdrawn.
Amendments Nos. 96 to 98, inclusive, not moved.
Section 27 agreed to.
Section 28 agreed to.
Amendments Nos. 99 and 100 not moved.
Section 29 agreed to.
SECTION 30.

I move amendmentNo. 101:

In page 30, to delete lines 6 to 47 and substitute the following:

"30.—Section 2 of the Offences Against the State (Amendment) Act 1998 is repealed.".

This section deals with the Offences Against the State (Amendment) Act 1998. A jury does not have the opportunity to draw any inferences because there is no jury. We get annual reports on the Act in this House. Some parts of it have never been used, while other parts are rarely used. The amendment repeals section 2 of the Act. The demise of that Act is long overdue. Security normalisation and dealing with repressive legislation was a requirement of the Good Friday Agreement, but we have not moved on it.

There are enough laws and sentences to deal with much of what this State had covered within the Act. We can deal with it within the normal courts system with all the rights and protections for those who are charged. Additional rights and protections are required for witnesses, victims and the system itself.

I get opportunities once a year to discuss the report on the Offences Against the State Act and since I have been elected, I have consistently made the point that the Act should be repealed in full. We have a Bill to that effect on the Order Paper. At some stage, we will hopefully have that debate and the Minister and others will support it. He has produced a number of laws in the past five years which have many of the same effects as this Act, albeit in front of juries of people's peers.

I do not support Deputy Ó Snodaigh's amendment.

I do not support it either.

Amendment, by leave, withdrawn.
Section 30 agreed to.
NEW SECTION.

Acting Chairman

Amendment No. 102, amendment No. 1 to amendment No. 102, and amendments Nos. 103, 161 and 162 are being discussed together.

I move amendment No. 102:

In page 30, after line 47, to insert the following:

"31.—(1) The Minister may make regulations providing for the administration of cautions by members of the Garda Síochána to persons in relation to offences.

(2) The regulations may include provision for—

(a) the form of caution to be administered to a person—

(i) at any time before the person is charged with an offence, on being questioned by a member of the Garda Síochána in relation to the offence,

(ii) when the person is being charged with an offence or informed by a member of the Garda Síochána that he or she might be prosecuted for it, or

(iii) in any other circumstances in which a caution is required, and

(b) the procedures that are to apply in circumstances where a person to whom a caution has been administered is to have the caution withdrawn and a different caution administered to him or her.

(3) Regulations under this section may provide for different forms of caution to be administered to a person in different circumstances and in different classes of cases.

(4) A failure on the part of any member of the Garda Síochána to observe any provision of the regulations shall not of itself render that member liable to any criminal or civil proceedings or of itself affect the admissibility in evidence of anything said by, or the silence of, a person to whom subsection (2)(a) applies.

(5) Regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations.

(6) Every regulation made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.".

This amendment inserts a new section in Part 4 of the Bill. That part deals with the circumstances in which a court may draw inferences from a person's failure to account for certain matters, or matters which he or she fails to disclose and on which he or she later seeks to rely on in court. The new section provides that the Minister may make regulations providing for the administration of cautions by members of the Garda to persons regarding offences. By doing so, it implements a recommendation in the Hogan report that what amounts to a code of conduct for the questioning of suspects by members of the Garda should be governed by regulations other than the judges' rules, which first appeared in 1912.

The review group took the view that while it is true that the rules contain a good deal of practical common sense worth preserving, an overhaul and re-examination of the rules is overdue. This is particularly the case having regard to provisions in Part 4 of the Bill, which expand the circumstances in which a failure to answer a question may give rise to inferences. The proposed regulation-making power also allows the Minister to set out the procedures that are to apply in circumstances where a person to whom a caution has been administered is to have the caution withdrawn, or a different caution administered to him or her.

It is also necessary to have regard to the amendment that I intend to bring forward on Report Stage, concerning the need for the Garda Síochána to make a contemporaneous written note of interviews with suspects. My proposal stems from a recommendation of the Hogan report and is the type of practical recommendation that can be implemented without delay. In circumstances where interviews are being routinely recorded, it makes little sense to hinder the flow of a Garda interview by the need for the interviewing gardaí to transcribe the full interview into manuscript. This amendment will override the requirement currently in the judges' rules that a written note be made. A written manuscript will be required only where an interview is not being recorded. That will only arise where the suspect has requested that the interview should not be recorded. That change will require an alteration to the form of caution contained in the judges' rules. This can best be achieved by means of the proposal before us, which allows the Minister to make regulations governing the form of caution to be used by the gardaí.

Deputy Howlin's amendment seeks to insert a new subsection (4) in the new section. My amendment in subsection (4) provides that the gardaí will not be liable in civil or criminal proceedings by virtue alone of a failure to observe provisions in the regulations. The Deputy's amendment will repeat that.

Will the Minister explain what I intend?

Deputy Howlin also deals with the liability of a garda and I will await his comments before making my comment on it.

I welcome the formula put forward by the Tánaiste. There is case law in regard to decisions of the Court of Criminal Appeal where cautions were found to be defective. A formula should be devised. I am advised there are several statutory instruments or laws already enacted by the Oireachtas that require a member of the Garda Síochána to explain an issue in ordinary language.

To simplify matters, my amendment proposes that where the Minister prescribes a particular formula for a caution in a particular case, this will also be deemed to have satisfied the requirements of other enactments. This will mean that where this formula is applied, there is no need to offer the caution in a separate way to satisfy the provisions of a previous enactment. The purpose of the amendment is to capture that clearly and make it simpler.

I am anxious that we should have time to discuss periods of detention but I am not sure how this may be done. Would it be possible to allocate some part of the Report Stage debate tomorrow — even half an hour — for a continuation of Committee Stage?

I have no problem with that.

I have no difficulty with any practical arrangement to use the limited time available to best effect. We have used our time effectively today and that has been of benefit to the Bill. It raises the question of how best to use the remaining time and suggests how much better this Bill could be if the normal parliamentary time were available for its consideration.

I am glad the Minister is taking on board the proposals in regard to the administration of costs. The amendments I tabled were along the same lines. Amendment No. 103 seeks to empower the Minister to "make such changes and amendments as are necessary to the Judges' Rules and to the form of caution given to persons to whom this Part applies". Amendments Nos. 161 and 162 are similar.

The Minister's new proposals seem to satisfy the recommendations of the Hogan committee. I assume his formulations coincide with the advice of officials and are best designed to meet our intentions in this regard. On this basis, I will withdraw my amendments and support the Minister's proposals.

The Tánaiste has undertaken to consider my amendment. I will resubmit it on Report Stage.

Amendment No. 1 to amendment No. 102 not moved.
Amendment agreed to.
Amendment No. 103 not moved.
SECTION 31.

Amendments Nos. 104 to 114, inclusive, are related and may be discussed together.

I move amendmentNo. 104:

In page 31, to delete lines 3 to 47, to delete pages 32 to 34 and in page 35, to delete lines 1 to 14 and substitute the following:

"31.—(1) Section 27 of the Misuse of Drugs Act 1977 is amended by the deletion of subsection (3B).".

As far as I recall, we dealt with mandatory sentences for drug barons last year, but we are legislating for them again in section 31. I do not know what has happened in the past year to necessitate these changes. Perhaps it merely shows we did not get it right last year. Again, my objection relates to the imposition of mandatory sentences in general. I have made my argument in this regard and will not labour the point.

My amendment No. 106 seeks to ensure a more precise definition of "young person". The Minister's amendment No. 105 is similar and it seems to meet my intention. My amendment No. 107 is similar to the one I tried to insert last year in regard to mandatory sentences. It proposes that judges should have to take into account certain mitigating and aggravating factors. I have argued my case on this issue before and the Minister knows my position.

I do not want to get into a protracted debate on mandatory sentences for drug offences. I am strongly of the view that there should be a general tariff of ten years for serious drug trafficking offences. As I said at the Association of Garda Sergeants and Inspectors conference, I strongly believe that a sentence of seven and half years, taking account of standard remission, should be the norm for persons convicted of a serious offence. This seems so obvious to me that I do not know who disagrees with it as a proposition.

There are some who contend that drug mules and the smaller cogs in the machine should not be dealt with as though they are Mr. Big. However, Mr. Big requires the mules to operate in this manner. I do not like commenting on individual cases but I notice a particular judge made this point recently when he observed that if the smaller cogs did not participate in this activity, the Mr. Bigs could not do their business. This judge gave the defendant in question a ten-year sentence.

The constitutionally required escape clauses are in place. The reformulation of these provisions is necessary to state clearly the policy of this House, which is that, save in these entirely exceptional and specific circumstances, a person convicted of carrying drugs of a commercial quantity can expect to serve seven and a half years in prison on foot of a ten-year sentence. I do not know what is strange or controversial about this proposition.

I do not like being prescriptive. I recently made a speech in King's Inns in which I said I do not go for an absolutely rigid tariff. However, drug trafficking has such a horrific effect on Irish society and causes so many innocent people to lose their lives either through drug abuse or the activities of drug pushers that a sentence of seven and a half years for those who play a significant part in the entire operation is a reasonable deterrent. It is the type of sentence that public confidence in the administration of criminal justice requires. Save in circumstances on which I will not comment, lesser sentences subvert public confidence in the rule of law. That is the reality.

It has been pointed out in this House on many occasions that we do not have a rigid United States-style mandatory offence regime. There is an escape hatch from the norm for the Judiciary. The issue we must confront is whether we are entitled to have such a norm in place. Alternatively, is there some view of society we are collectively missing whereby lighter sentences should be the order of the day? I do not accept that the great majority of Irish people agree with this proposition. In this respect, it is not a question of the Legislature trespassing on the independence of the Judiciary.

It is a Legislature trying to establish a viable workable criminal law that brings home to the Irish people, potential criminals and people to observe the criminal justice system from outside that a ten-year sentence, which means seven and a half years in effect, is to be imposed in all except the most exceptional and specific cases as the sentence which a commercial level drug trafficker can expect to receive when he or she goes before an Irish court. That is a simple proposition and 90% of Irish people think that is right.

I will be brief as I am conscious that others wish to contribute. I told the Minister on the last occasion that I had changed my views in regard to mandatory sentencing on this issue.

I had a very rigid view that it should be for the courts to have the ability to make a discernment in each individual case but because I am now convinced that the issue of drugs is so pervasive, is all over the country and doing extraordinary damage to communities all over the country, that we need that wake-up call. I agree with the Minister that it is not simply the Mr. Bigs who can manipulate from prison cells, using mobile phones, or from Spain, Holland or wherever they are. They need a distribution system and it has to be confronted rigidly. I accept that because of the position we are in. I wish to make two points on this issue.

The new level the Minister is suggesting for a minimum ten-year sentence that must be served is €500,000 worth of drugs. There is a view, and it has come also from Government backbenchers to me, that might give the signal that the new level of acceptability is €500,000 worth of drugs and that volumes below that level should not be dealt with at that level of severity. I raised that point on Second Stage but I did not hear a response to it and it is something that causes me concern.

I am a convert to the view that we need a mandatory sentence for this offence. Normally I do not go down the road of mandatory sentences or of the "three strikes and you are out" or the "lock them up" approach, which in the prisoner's view is part of the American criminal justice system. I wish we had more time to tease out these issues but we have not, unfortunately.

Clearly tougher sentences are needed to deal with serious drug traffickers and serious drug offences. I support an approach that will involve such sentences. When I spoke about tougher sentences on the last Criminal Justice Bill and, in particular, the removal of the exceptional circumstances clause for a second conviction, the Minister initially indicated that he had major constitutional concerns. The phrase he used at the time was that his heart was with my argument but his head was against me. In regard to these proposals is the Minister satisfied they will stand up constitutionally and that the concerns he had previously on the case I was making for tougher sentences against drug offenders will stand up?

I wish to raise the issue of the length of time to be served. Do I take it that on the issue of a ten-year sentence that effectively, under the existing code of remission of sentences, it will be no more than seven and a half years, that the automatic remission will apply to the ten-year sentence?

My last point follows on the point raised by Deputy Howlin. From the point of view of consistency of law, how do we relate the approach we are adopting for the offence, now being created, for drugs valued at more than €500,000 with the approach in existing law for drugs exceeding a value of €13,000 and the mandatory sentences that still stand for such lower values? What consistency exists between the two legislative proposals?

I will not labour the point except to state that I welcome the fact that drug barons and drug dealers are convicted for ten years by judges, albeit infrequently, but I have a problem with taking away the discretion of the Judiciary. The more drug barons and drug dealers who are locked up, the better. However, I have a problem as to whether this will be effective and whether it will interfere with judicial discretion. On the point I made earlier in regard to sentence guidelines, I would be much more comfortable with that approach but I want to ensure that judges understand fully the effects of the drugs crisis. The Minister's commitment to this aspect is welcome if only it was backed up by the other tools required to tackle the drugs crisis in Ireland as a whole and that the local drugs squads and national drugs teams had the required resources to make a huge dent in this scandal.

On the figure of €500,000, the Attorney General has advised me that is a permissible proportionate barrier over which we could say the discretion cannot apply. I have approached it on that basis.

Could it apply in the circumstances?

I have approached it on that basis but I am mindful of the point Deputy Howlin has made, that is, that it may create a two-tier approach in sentencing and it may send out a signal that if drugs are not valued at more than €500,000, one is not in the big league.

I take that point. That is a matter I want to consider again with my Government colleagues. I am interested in the points raised on that issue because if it had that effect it would be counterproductive and would send out the wrong signal.

It cannot do both.

Exactly. I want to look at that issue very carefully. I have been contemplating for a few weeks whether the point Deputy Howlin raised on Second Stage is correct and I want to look at it.

In regard to the judge's discretion, the Bill clearly provides that where it would be unjust to do so for specific and exceptional reasons it need not be done. As far as I am concerned, that is sufficient latitude but there can be no doubt it is extremely dispiriting for the Garda, which finds a person with a few hundred thousand euro worth of cocaine, to see that person walk out of court or to get a one or two-year sentence. Public opinion and public confidence in the judicial system is damaged by sentences of that order. That is the point I am making.

Progress reported; Committee to sit again.
Barr