JOINT COMMITTEE ON JUSTICE, DEFENCE AND WOMEN'S RIGHTS díospóireacht -
Thursday, 24 Jun 2010

EU Directives on Combatting Child Sex Abuse: Motions

Chairman

The purpose of today's meeting is to discuss the following motions: a proposal for a directive of the European Parliament and of the Council on combating the sexual abuse, sexual exploitation of children and child pornography; section 8 of the Criminal Justice (Amendment) Act 2009; and Post-Release (Restrictions on Certain Activities) Order Scheme 2010. A briefing has been circulated to members.

I welcome the Minister for Justice and Law Reform, Deputy Dermot Ahern, and his officials. We will have a briefing from the Minister followed by a question and answer session on each motion and I call on him to begin.

Minister for Justice and Law Reform (Deputy Dermot Ahern)

The proposal for a directive on sexual abuse, sexual exploitation and child pornography is very similar to a previous proposal for a framework decision which was published by the European Commission last year but which lapsed because it did not come into force prior to the Lisbon treaty.

Under Article 3.1 of Protocol 21 of the Lisbon treaty, Ireland may notify the President of the Council of the European Union that it wishes to adopt and take part in the application of the draft directive within three months of the date of publication. In the alternative we must opt into the measure after it has been adopted, but in that event we will not be able to influence the content of the measure. The three-month notification period expires on 30 June. We have decided to opt in.

Article 1 sets out the aim of the directive, which is to establish minimum rules concerning the definition of offences and sanctions in the area of sexual exploitation of children and introduce common provisions aimed at preventing such crime and providing protection for its victims. Article 2 contains definitions for the purpose of the draft directive.

Articles 3 to 6 set out the main criminal law provisions and specify the lowest maximum sentences applicable for the various offences. Article 3 requires member states to make the intentional sexual abuse of children punishable. Article 4 addresses sexual exploitation of children and makes it an offence, inter alia, to recruit or to cause a child to participate in pornographic performances or in child prostitution. Article 5 sets out the offences concerning child pornography. Article 6 addresses the phenomenon of sexual grooming on the Internet and makes it an offence for an adult, by means of information and communications technology, to meet a child under the age of consent for the purpose of engaging in sexual activities with the child or of producing child pornography. Article 7 provides that member states shall ensure that instigating, aiding or abetting the commission of any of the offences under Articles 3 to 6 shall be punished.

The intention of Article 8 is to exclude consensual sexual activities in which children may be involved and which can be regarded as the normal discovery of sexuality in the course of human development from the ambit of offences established by the draft directive. Article 9 defines aggravating circumstances for the purposes of the draft directive and obliges member states to ensure that, where one or more aggravating circumstance is present, penalties are more severe than for the basic offences.

Article 10 obliges member states to take the necessary action to ensure that offenders may be temporarily or permanently prevented from engaging in activities involving regular contact with children. Article 11 is a standard provision providing for the liability of legal persons and Article 12 specifies the sanctions to be imposed on legal persons. Article 13 is a non-punishment clause which provides for the possibility of not prosecuting or imposing penalties on child victims for their involvement in unlawful activities as a direct consequence of having been subjected to child pornography or prostitution offences.

Article 14 seeks to ensure that the investigation and prosecution of offences will not be dependent on a report being made by the victim and that criminal proceedings may continue where a victim has withdrawn a statement. It provides for the prosecution of certain offences for a sufficient period of time after the victim has attained adulthood. It also requires member states to make effective investigative tools available to the competent services, including the possibility of using covert operations.

Article 15 seeks to ensure that the rules of confidentiality imposed on certain professionals who work with children do not constitute an obstacle to the possibility of those professionals reporting any reasonable suspicion of abuse to the competent authorities.

Article 16 sets jurisdiction rules over the offences established by the draft directive. It provides that member states shall take the necessary steps to ensure that extraterritorial jurisdiction is not conditional on a requirement for dual criminality or a report by the victim in the place where the offence was committed. Articles 17, 18 and 19 comprise measures for general assistance and support to victims and specific protection to victims in criminal investigations and proceedings.

Article 20 provides for risk assessment of the danger of repeat offending by persons convicted of offences covered by the directive. Article 21 requires member states, subject to safeguards, to block access by Internet users in their territory to Internet pages containing or disseminating child pornography and to take all necessary measures to ensure the removal of Internet pages containing or disseminating such pornography.

Article 22 is a repeal provision and Article 23 proposes a transposition period of two years. Articles 24 and 25 are standard provisions dealing respectively with reporting arrangements and entry into force. Article 26 provides that the directive is addressed to the member states in accordance with the treaties.

Deputy Charles Flanagan

I welcome this motion and the proposal for a directive of the European Parliament and Council on combatting sexual abuse, sexual exploitation of children and child pornography. I am pleased we have opted in and I very much welcome this approach. Reports such as the Ryan report have shown that as a State we have failed to protect children in the past. Tragically, we continue to fail children so what is required is a firm and tangible commitment to tackling child sexual abuse. This is a concrete way in which to proceed and we should learn lessons from past mistakes.

From what the Minister stated, the central plank of the current proposal is that the best interest of the child must be the primary consideration. If we look at the stark reality of advanced technology, the Internet has given the sexual exploitation of children a cross-national element. The UN estimates that 200 new child abuse images are placed on the Internet each day.

A specialist report was produced at UCC and researchers there played a prominent role in combatting the spread of child pornography rings through Combating Paedophile Information Networks in Europe, COPINE. That project was founded in 1997 and is based in UCC. Is it possible for the Minister or the State to do anything to expand the project and develop it further?

Operation Amethyst is the Garda operation that led to more than 100 arrests of those suspected of downloading child pornography in 2002. What is the current position on Operation Amethyst? How many similar operations take place on an annual basis? What are the results? I note we have signed but not yet ratified the European Convention on the Protection of Children Against Sexual Exploitation and Sexual Abuse. The convention will enter into force internationally on 1 July. What are our proposals in this regard? Is there a delay in our proceeding from signing to ratification?

We do not have a specific offence of child sexual abuse. A person may be charged with rape, sexual assault, aggravated sexual assault or with one of the specific offences that relate to children but there is no specific offence of child sexual abuse. Is there merit in having such a specific offence on our Statute Book? I thank the Minister for allowing us the opportunity to debate the matter.

Deputy Pat Rabbitte

I will speak now to save the Minister responding twice as there is no dispute between us about this necessary measure. I support the motion and I support the decision to opt in. Obviously, this is a growing cause of concern. I welcome these measures. I am particularly interested in Articles 6 and 21. I am sure the Minister has been receiving e-mail traffic on this matter, as we on this side of the House have, from parents and citizens who are concerned about the growth of this phenomenon. They have been raising questions with us about the technical feasibility of addressing the use of the Internet and the networking of websites now available for the downloading of images and the production of child pornography. Articles 6 and 21 refer. Article 21 states that subject to safeguards there is capacity to block access by Internet users in their territory to Internet pages containing or disseminating child pornography. People have contacted me looking for guidance on the technical feasibility of doing this. Some of their queries arise out of recent court cases and television programmes showing this is a growing phenomenon in our jurisdiction. The extent of users in this jurisdiction as established during a survey of only one month is quite shocking. I do not know what information the Minister's officials may have available in regard to the effectiveness of the measures envisaged in those two Articles.

Deputy Dermot Ahern

I thank Deputies for their support for this directive. It is such a broad and important measure the Department, despite being under a time constraint in this regard, sought significant advice from across several Departments, including the Department of Health and Children, the Garda Síochána and so on. I was very much of the view from the beginning that this is a directive in regard to which we should opt in on the first occasion rather than opt out with a view to opting in at a later stage under Protocol 21 of the Lisbon treaty. Members will be aware that we indicated in a declaration when we received the Protocol to the Lisbon treaty that we would opt into and be as positive as we could be on these issues. I mention by way of an aside that since the passing of the Lisbon treaty EU meetings in the area of GHA are interesting in the context of the UK and Irish Protocol 21 whereby we can opt in and opt out on a case by case basis. I was in no doubt that in this regard we had to opt in to be part of the discussions leading to the ultimate drafting of the directive. I thank members for their support in that respect.

The question of whether the UCC project should be expanded was raised. It is open to that group and others to apply for EU funding. There is EU funding available to proceed. On operation amethyst and all the other investigations, a unit within the Garda Síochána is tasked with domestic violence and sexual abuse cases. A large element of its work is the issue of child abuse and offences against children. Deputy Flanagan asked about our position in regard to the Council of Europe convention. In 2006, we drafted a Bill dealing with the issue of sexual exploitation and the criminalisation of trafficking. The resulting Criminal Law (Human Trafficking) Bill 2007 was enacted in May 2008. The provisions of that Bill offer further protection to children against sexual abuse and exploitation. Deputy Flanagan stated that there was no specific legislation on to these issues. Section 6 of the Criminal Law (Sexual Offences) (Amendment) Act 2007 provides for a 14 year maximum penalty for the offence of meeting a child or travelling to meet a child having groomed the child on at least two previous occasions for the purpose of doing anything that would constitute the sexual exploitation of the child. The penalty on conviction on indictment of this offence is a prison term not exceeding 14 years. The Joint Committee on the Constitutional Amendment on Children has also come up with proposals on a change in law in respect of sexual offences against children. This is being examined by the Minister of State, Deputy Barry Andrews. Legislation in this respect is being prepared.

On the issue of blocking of the Internet, members will be aware of the existence of the Office of Internet Safety which deals on a voluntary basis with service providers. It has been up and running for some time and I will shortly launch its annual report. The office has been successful. There is also within my Department a unit which deals with all the leading Internet service providers in the country which are part of a voluntary code and practise in terms of dealing with pornography on websites. It is working well. The directive articles referred to by Deputy Rabbitte are those which caused some difficulty in the Department when we were discussing whether to opt in to this directive at this stage. In this regard, the directive will require countries "to take the necessary measures to obtain the blocking of access by Internet users in their territory to Internet pages containing or disseminating child pornography." We have discussed with the Garda Síochána, members of the Internet Safety Advisory Council, other stakeholders and the Office of Internet Safety the possibility of introducing Internet filtering. A number of lobby groups in the digital media area have expressed some difficulties with any blocking of the Internet. I accept that they are not in favour of child pornography or pornography on the Internet.

I refer members to recent media reports which arose out of a freedom of information request from my Department from the Digital Rights Ireland lobby group. There were suggestions in the media that the Government was seeking to censor the Internet when in fact what it was examining was the possibility of Internet blocking to address child pornography. I was inundated with a significiant number of abusive e-mails from people interested in this area who suggested I was doing something that no other country in the world was doing, namely, trying to block the Internet. When I inquired in the Department what all these e-mails were about I was informed they related to the Department's preparations in regard to an opt in or opt out of this directive and its examination of Internet blocking of child pornography.

There appears to be some ambiguity in regard to Recital 13 to the directive which appears to suggest that different mechanisms could be used to achieve this end. It states: "Different mechanisms can be used as appropriate, including facilitating the competent judicial or policy authorities to order such blocking or supporting and stimulating Internet service providers on a voluntary basis to develop codes of conduct and guidelines for blocking access to such Internet pages." The first option mentioned, that of facilitating the competent judicial or policing authorities, appears to suggest at least the possibility that legislation would be required. The other option of supporting Internet service providers on a voluntary basis appears to envisage a situation where they are encouraged to voluntarily introduce blocking. In the Office for Internet Safety there is a significant element of voluntary blocking already when it is brought to its attention that its service is being used for illegal purposes.

Chairman

We will move on to the second motion, section 8 of the Criminal Justice (Amendment) Act 2009.

Deputy Dermot Ahern

This is the Criminal Justice (Amendment) Act.

Chairman

Yes.

Deputy Dermot Ahern

I thank the committee for taking these resolutions from the Dáil and Seanad. The purpose of the resolutions is to provide for the continuation in operation of section 8 of the Criminal Justice (Amendment) Act 2009 for a period beginning on 23 July 2010 and ending on 30 June 2011.

I brought forward the measures contained in the 2009 Act to take further action to address the increasing levels of violence by gangs involved in organised criminal activity. I wanted, in particular, to target those who direct the activities of criminal gangs. However, given the nature of any organised criminal activity, it was also important to target those who participate in these activities.

The Act came into force on 23 July 2009. It primarily provided for the trial of organised crime offences in the Special Criminal Court unless the DPP directs otherwise; the creation of a new offence of directing or controlling a criminal organisation; an increase in the maximum penalty for the offence of participation or involvement in organised crime; the court, with regard to all organised crime offences, to be able to draw inferences from failure to answer questions, failure to account for movements, actions, activities or associations; and an increase in the penalty for the intimidation of a witness or juror from ten to 15 years imprisonment.

The committee will no doubt be aware that the provisions which I brought in under the 2009 Act, together with the Criminal Justice (Surveillance) Act 2009, have been invaluable to the Garda Síochána in tackling organised crime. There are a number of cases before the courts at present against persons arrested for the offences of directing the activities of a criminal organisation and for participating in the activities of a criminal organisation.

Section 8 of the 2009 Act is the subject of these resolutions. It is aimed at ensuring that organised criminal gangs cannot interfere with the court process to influence the outcome of cases. This is achieved by providing for the trial of these offences without a jury. For this purpose the section declares that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to certain offences.

Section 8(4) provides that the section shall cease to be in operation 12 months from the passing of the Act, that is, 23 July 2010, unless a resolution has been passed by both Houses of the Oireachtas resolving that it should continue in operation for a further period to be decided in the resolutions.

Section 8(6) provides that before a resolution to continue section 8 in operation is passed, the Minister shall prepare a report, which shall be laid before both Houses of the Oireachtas, on the operation of the Act in the period under report. I laid such a report before both Houses on 22 June 2010. In addition, and as a courtesy to you, Chairman, and to the party spokespersons, I also forwarded copies of the report to you and to them directly.

The section provides that certain organised crime offences under Part 7 of the Criminal Justice Act 2006, as amended, are schedule offences for the purposes of Part V of the Offences against the State Act 1939. This means that the Special Criminal Court will hear prosecutions for the offences in question. However, the Director of Public Prosecutions may still exercise his power to direct that the offences should be tried in the ordinary courts.

In summary, the four offences covered by section 8 are set out in Part 7 of the Criminal Justice Act 2006, as amended. They are section 71A — directing the activities of a criminal organisation, section 72 — participating in or contributing to certain activities of a criminal organisation, section 73 — committing a serious offence for a criminal organisation, and section 76 — liability for offences committed by a body corporate.

I will not take up the committee's limited time with a detailed description of the offences — more detail on them is included in the appendix to the report.

Organised crime continues to present a significant problem in the State as there are a number of criminal gangs which continue to engage in serious offences. There is, unfortunately, plenty of evidence of the willingness of these gangs to engage in murder, armed robbery, kidnapping, drug smuggling, counterfeiting and other serious offences.

In passing the 2009 Act, I do not think anyone expected instant results. Given the nature of organised crime, the investigation and prosecution process can be lengthy and difficult, particularly given the power that criminal gangs hold over those who are involved with them. The 2009 Act has been in operation for just under a year at this stage and while there have been arrests under the relevant sections of the Act, no cases have yet come before the Special Criminal Court. This does not, however, invalidate the reason for having such a provision available for use in appropriate circumstances.

The use of the Act to date serves to highlight the considered approach of the Director of Public Prosecutions and vindicates the way in which the provision is constructed, allowing him, and him alone, to exercise his power to direct that cases should be tried in the ordinary courts.

The Garda Commissioner is of the view that this provision is likely to be required for some time to come. I must have the utmost regard to the views of the Garda authorities in matters such as this. It is absolutely essential to ensure that the Garda has at its disposal the best possible range of powers to face up to organised criminal gangs.

In the period under report, from the passing of the Act to 21 June 2010, there has been a total of 69 persons arrested under the provisions of sections 71A, 72 and 73 with a total of two charges being made under section 71A — directing a criminal organisation — and six charges for offences under section 72 — participating in or contributing to a criminal gang.

The arrests made also have resulted in charges being preferred to a range of other serious offences, including firearms offences, drug trafficking, threats to kill, theft, demanding money with menaces and aggravated burglary.

The Garda authorities devote considerable resources, from across the Garda organisation, to their efforts to tackle organised crime and they deserve our praise for the success they have had against a number of those involved in these criminal gangs. I compliment the Garda Síochána on its expeditious response to the most recent tiger kidnapping where it has been successful in recovering a substantial amount of the money taken two days ago. Without going into the details of the case, I understand a number of people have been arrested. The Garda Síochána deserves great credit in this and in other similar circumstances. It brings to mind the necessity for the protocols in place and that they be implemented in order that staff in the banks can be protected and, obviously, the criminal gangs cannot get their hands on money from the banks. The Garda Commissioner has made it clear time and again that there will be no let up in the action taken against these gangs. He has my and the Government's full support in that approach.

Let me be blunt about it — the thugs involved in organised crime are desperate people who will stop at nothing to avoid being brought to account for their crimes. Violence and intimidation are a way of life for these people and we have a duty to make sure that the criminal justice system can hold sway over them. To that end, we must ensure that in the most serious of cases where jury intimidation is a real possibility the law has the means available to bring serious criminals to account.

On balance, I consider that the period for which I propose to renew this section is a proportionate one. The 2009 Act provided for a period of one year for the provision to be in operation before its continuance in operation should be considered. The period now proposed, running from the current expiry date up to 30 June 2011, corresponds closely to that. If it is proposed to continue the provision in operation after that date the Oireachtas will again have to consider the matter.

Deputy Charles Flanagan

I am pleased to have the opportunity to speak on this motion of renewal in respect of section 8 of the 2009 Act, about which we had considerable deliberation and debate this time last year. It was very important legislation introduced by the Government. I said Fine Gael would support any legislative measures introduced by the Government to help bring an end to gangland and organised crime activity, in this State and beyond. It is somewhat aspirational for any parliament to suggest that organised crime could be brought to an end by legislation but I felt it was important to support the Government in this measure. However, it is now timely to subject the measure to a review. While the legislation has been used each month for the past 12 months, there has been no trial for any of these offences in a court without a jury. When we seek to renew the measure, we must look at the facts as presented over the past 12 months.

It is absolutely essential that organised criminal gangs do not interfere with the court process. To do so would be an insidious attack on the pillars of democracy. In the debate in the Chamber there were reports of jury intimidation but nobody has been charged or convicted of intimidation of juries. I wonder what information the Minister has in respect of ongoing activity on the part of the DPP to bring charges against persons who have been intimidating jurors. There were reports that members of the legal profession might have been engaged in passing on certain important information in the evidence-gathering process, leading to witness intimidation.

On behalf of Fine Gael, I support the renewal of this measure. It did not result in the type of legislative address to which the Minister committed himself at the time. We did not have a rush to the Special Criminal Court of gangland figures from throughout the State, as was anticipated. However, I am happy to support the Garda Commissioner when he says the provision is likely to be required for some time to come. I join the Minister in acknowledging the great role played by the Garda Commissioner and the Garda Síochána in the battle against organised crime. I acknowledge that the legislation has been regularly used but that this section has not been regularly used. Nevertheless, it should be renewed on the basis of the Garda Commissioner's advice. According to the Minister's report, no cases have been sent for trial by the Special Criminal Court in accordance with section 8 during the period in question but I am happy to accept what the Garda Commissioner says.

The Director of Public Prosecutions, who also has a very important role in the area of combatting organised crime, stated at a conference last week that gardaí often did not have enough evidence to send a file to him in respect of gangland killings. What are the evidential deficiencies to which the DPP referred? What measures can the State take to address the problem? It is essential to ensure a greater level of co-ordination among the Garda, the DPP and the Courts Service.

Fine Gael supported the legislation last year in accordance with the commitment we gave in 2007, following the entry into power of this Government, to support any reasonable legislative measures that would help combat organised crime. This section was an important part of that. I look forward to ongoing monitoring of the section and I thank the Minister for putting forward an appropriate measure last year that allows us to come back on an annual basis to review and, if appropriate, renew. In these circumstances, I am happy to renew.

Deputy Pat Rabbitte

In so far as this morning's developments suggest that the Garda Síochána is on top of the latest tiger kidnapping, I congratulate the Garda Commissioner and his people. I am not sure I understand why the protocols were not applied in this case. I am not sure what information the Minister has or feels he is able to give us but the fact that the Garda is following the intelligence and having some success is to be welcomed. I commend it on that.

I agree with the Minister on one thing relating to the motion before us, namely his point that organised crime continues to offer a significant threat in this State. There is a dispute between us on how to address the issue. Section 8 involves a declaration that the ordinary courts are inadequate for the effective administration of justice and the preservation of peace in this State. I do not believe that to be the case, nor do I believe that the ordinary courts are ineffective in the administration of justice. I do not believe in law-making which derives from the latest atrocity.

We have to proceed with great care in this area. The steps we take to bring in new legislative proposals are not always logical and based on the evidence. The Minister referred to two things I remember very well. When we advanced the question of making it an offence to direct the activities of a criminal organisation with one of the Minister's predecessors, Mr. Michael McDowell, his position, presumably supported by departmental colleagues, was that it could not be done. When I brought in a Private Members' Bill on Garda surveillance the Minister's immediate predecessor, Deputy Brian Lenihan, said he was sorry that he was unable to support the Bill because "it would alert the criminal fraternity to Garda techniques". Yet, we have done a volte face on both of these things. Directing a criminal organisation is now a crime. The Minister told us on numerous occasions that the Garda surveillance legislation is a useful tool in combatting crime. This is not like mathematics whereby one works out a formula and comes up with a solution. These are decisions and judgment calls that are made. I accept the Minister has more information available to him on this matter than I do. However, I continue to have grave reservations about a declaration that states that the ordinary courts of justice are incapable of effectively administering justice in this State. I am reminded that the terrible atrocity in Limerick last year that resulted in this Bill being produced has subsequently been dealt with effectively by the ordinary courts. The person responsible for that crime is now behind bars on the basis of a confession. It was claimed at that time that we could not address this atrocity without these special measures. Well, we did. I am glad we did and I congratulate the Garda Síochána for doing so.

The Minister's report, which he was required to lay before the Houses of the Oireachtas in respect of this matter states: "While there have been a number of arrests during this period for offences contrary to sections 71(a), 72 and 73 of the Criminal Justice Act 2006, as amended and some prosecutions are pending in relation to these offences, the Director of Public Prosecutions has exercised his power to direct that none of these should be sent forward for trial by the Special Criminal Court.” That is all we have to go on in terms of evidence. The DPP has used the power conferred on him in the legislation to direct that none of these should be sent forward to trial by the Special Criminal Court. I welcome if other sections of the legislation are useful to the Garda Síochána. My reservations are focused on this abandonment of trial by jury and the declaration that this is necessary because the ordinary courts are not fit for purpose in this regard. I do not know who is responsible for this. The Minister has on previous occasions when I put this to him denied that he is responsible for the plethora of headlines at the time, including that as soon as the ink was dry on the legislation there would be countless numbers of gangland killers rounded up and processed by way of this legislation. This has not happened. We can only deal with the report before us.

Claims were also made about jury intimidation at the time of the passage of the legislation. I have checked with colleagues and others at the criminal Bar and they cannot point me in the direction of trials that have collapsed owing to jury intimidation. They say it is true that there have been instances of witness intimidation. Under this legislation one must still produce witnesses. Witnesses still have to present in the Special Criminal Court in the event that this section is ever used. One cannot obviate the necessity for witnesses in that regard. I hold a position of some conviction on this issue which I believe to be logical and genuine deriving from the information before me. We have enacted the legislation. The Ministers has stated the Garda regard it as a useful tool and that there are prosecutions pending but none has been sent for trial before the Special Criminal Court. Perhaps this will happen in the 12 months ahead. I am as anxious as anybody around this table that gangland killers and the leaders of criminal gangs be locked up. If it helps in that objective, I will not divide the House on the matter today. However, I wish to put on the record my reservations and reasons for them. They are reservations borne out by advice available to me from the Criminal Bar.

Senator Denis O’Donovan

I, too, add my voice of support for this measure and note that it is only in the most extraordinary of circumstances that this provision will be used. It is good that numerous cases have not been sent forward for trial to the Special Criminal Court. I presume the measure will be only used as a last resort. The provision is worthy of retention. It is frustrating that each year this matter must be brought before the Oireachtas. It might perhaps be more appropriate if it were done every two or three years. However, I am sure there are valid reasons for doing so annually.

Perhaps the Minister will confirm if there are cases pending that are likely to end up in the Special Criminal Court and, if so, how many? I compliment the Garda Síochána and the Commissioner on the excellent job they are doing. Criminal gangs have in recent years become very sophisticated, dangerous and cunning. The Garda Síochána has had a remarkable level of success in dealing with them. Had it not been successful in dealing with them our streets would no longer be safe. The Garda is doing an excellent job and must be complimented on doing it. This measure should be retained. If only one serious criminal is put behind bars over the next 12 months as a result of this provision it will be worthy of retention.

Deputy Dermot Ahern

On the tiger kidnapping issue, there is no doubt that in recent times where the protocols have been used the operation has been successful from a Garda Síochána and bank point of view. It is safe to say that where the protocols have not been used to their fullest there have been problems. The question often asked — I have asked this of the banks and could ask it of them again in relation to more recent incidents — is how it is that large sums of money can be brought out of a bank by one individual. This is a matter the Garda Síochána and banks discuss on a regular basis, in particular subsequent to the meeting I had with the bank authorities. There are regular meetings between management at Garda Síochána level and the banks to ensure this is no longer possible at any bank branch. It is easy for us in the quietness of a committee room to say that people should comply with protocols but often people are put under extreme pressure. God only knows how any of us would respond. Those protocols are not there primarily to stop money getting into the hands of criminals. They are there to protect staff so that if everybody complies with them, this avenue of tiger kidnapping will be at an end. If criminals see that despite the best efforts of the Garda Síochána and the banks and their employees these are still successful they will be seen as something that can be used time and again. We have been very fortunate in the excellent work carried out in recent times in that quite a number of very substantial tiger kidnapping events were successfully thwarted but that is not always the case.

I was very measured in everything I said on how this legislation would be used. We drafted it in such a way that it would be the DPP, and only the DPP, who would decide on a case by case basis whether a case would go to the Special Criminal Court. The way it is drafted means in each case he has to make a positive decision that it is not a case to go before the Special Criminal Court. It is wrong to suggest, and I did not suggest it, that there would be an avalanche of cases before the Special Criminal Court arising from the passing of the legislation. However, the legislation has been used very extensively and in each case that has gone to the DPP, the DPP has had to make a determination on whether there is a likelihood of jurors being intimidated.

To Deputy Rabbitte in particular I state that with all due respect to the criminal bar they are not the people who ultimately have to go on a jury or give evidence. One has only to listen to the testimony of people such as Mr. Steve Collins who time and again goes out publically, under significant pressure it has to be said as he has 24 hour Garda protection, and instances quite clearly his family and other people involved in cases. If my memory serves me correctly he also instanced a major trial in Cork involving him and his family which collapsed as a result of juror intimidation.

It is a bit naive to accept there is intimidation of witnesses but no intimidation of jurors. Gardaí tell me that on a regular basis in some of these high-profile trials individuals clearly belonging to gangs but not involved in the case as such go into court and stare out jurors in such a way as to put particular jurors under pressure.

To come to Deputy Flanagan's issue on whether anyone has been prosecuted, it is far easier to prove intimidation of a witness because witnesses have given statements previously and they then go to court and perhaps recant. This has happened on many occasions which is why we had to change the legislation. My predecessor had to change the legislation to allow a trial judge to accept the recanted evidence of people who had come forward and given statements. It is far easier from a prosecution point of view to ground a prosecution on intimidation of a witness. Intimidation of a juror is far more insidious and is such that the Garda Síochána has clearly indicated that it is done on a fairly regular basis with regard to gangland crimes.

Deputy Flanagan raised the issue of evidential difficulties. The entire problem with gangland crime is that these people have a grip on the very people who are potential witnesses whether in the immediate geographic area in which they operate or whether they are gang members who will not come forward. One of the grave difficulties gardaí have had with gangland crime is that the people they bring in are put under the fear of God because the minute they are brought in they are pinpointed and targeted whether or not they give gardaí any information. The very fact they were brought in by the Garda may generate a response from the gang on the basis of a feeling they may have turned informer and provided information.

In the surveillance legislation and the Criminal Justice (Amendment) Act we have endeavoured as much as possible to remove the civilian element of proving these cases. That is the idea of surveillance now being allowed. I accept what Deputy Rabbitte stated on his Bill. The principle was right but we could not accept the Bill. The view was taken, particularly under my leadership in the Department, that given this ever-increasing difficulty with gangland crime in specific geographic areas where these gangs hold sway the more we can remove the civilian element of the proof of prosecution against these people the better. Being able to produce surveillance in court as part of proof would obviate the necessity to bring forward civilian witnesses. The Criminal Justice (Amendment) Act has the potential to allow the evidence of gardaí to be accepted in very limited circumstances and, if the DPP so directs, to remove jurors from the scenario.

That was the principle behind those Acts and getting them passed as quickly as possible. I do not accept the suggestion that these are unnecessary. We do not state that the courts are inadequate to try cases generally. It is only with regard to specific cases where there is very hard anecdotal evidence that witnesses and jurors have been intimidated on previous occasions. I can put it no better than Deputy Willie O'Dea, who stated in the Dáil that people had come to him with jury summonses shaking like leaves because of the fear they would have to be part of a trial against people such as these.

Perhaps I took him up wrong, but I do not accept what Deputy Rabbitte stated on the murder of Roy Collins. One person has been found guilty on his own admission — and that is excellent — but at least one other person was directly involved on that occasion. However, it would be naive to think they were the only people involved. We have plenty of legislation on which to ground a prosecution against people who pull the trigger in these cases. Until we passed these Acts, we did not have legislation to get the people who direct the eejit to go out and shoot somebody. That is what this legislation is geared at; the lord who sits in the comfort of a house obtained from ill-gotten gains and directs all of these things.

Obviously, when the legislation in which there are significant legal issues was passed, it would take some time for the Garda Síochána to be trained in the use of this legislation. The Garda had to take legal advice on what proofs were necessary for all of these cases to put them before the DPP so that it would ground the prosecution, and it had to cross every "t" and dot every "i" in that respect. However, I think it is safe to say that there has been a plethora of use of this legislation, particularly in the past six months or so.

Just to give the committee an instance, I got a letter from the Garda Commissioner giving figures of arrests under these particular sections up to 31 May 2010, and the figure was 55. We then asked him for figures up to 21 June, and the figures have jumped from 55 to 69 over the space of 21 days. There is an ever more rapid increase in the use of this legislation.

Deputy Flanagan raises the issue of resources. This is one of the issues that we have looked at. The Garda has put significant resources into CAB and as the committee will be aware, I increased the resources year-on-year into CAB despite decreases in other parts of my Vote. We now have asset profilers trained by CAB who are working in each Garda division and they are providing a criminal asset profiling service on specific persons and suspects operating within their division. There is excellent local knowledge in areas around the country. There are 127 Garda asset profilers along with other Revenue staff in these particular locations.

Chairman

As we move on now to the last motion, I remind everybody that we must vacate this room by 11.15 a.m.

Deputy Dermot Ahern

The committee may recall that during the Committee Stage of the Criminal Justice (Amendment) Bill 2009, I accepted an Opposition proposal, from Fine Gael, that I would prepare a scheme specifying categories of restrictions and conditions that may be imposed by post-release orders for persons convicted under the Act. The draft scheme was laid before the Houses of the Oireachtas on 19 January 2010.

I am pleased to inform the House that a number of prosecutions are pending in offences under section 5, that is, directing activities of a criminal organisation, and under section 6, participating in or contributing to organised crime activities.

The draft scheme is self-explanatory. Article 1 is the title of the scheme. Article 2 states that the categories of restrictions that a court may impose under this Act are set out in the Schedule. The Schedule then lists the categories of post-release restrictions and conditions that the court may impose on sentencing.

Section 1 enables the court to impose restrictions on an offender's movements. There are exemptions to such restrictions in the case of a medical emergency. These provisions are modelled on section 101 of the Criminal Justice Act 2006 which allows a court to impose similar movement restrictions on persons convicted of specified offences. Section 6 of the Bail Act 1997 also contains similar provisions in this regard.

Sections 2 and 3 enable the court to require that an offender inform the Garda if he or she is travelling abroad for a period which exceeds seven days. These provisions are modelled on section 10 of the Sex Offenders Act 2001 and section 92 of the Criminal Justice Act 2006 which make similar provisions.

Section 4 enables the court to require that the offender notify the Garda of any change of name by him or her. These provisions are also modelled on section 10(2) of the Sex Offenders Act 2001 and section 92 of the Criminal Justice Act 2006.

Section 5 enables the court to require the offender to notify the Garda of any change of address. These provisions are also modelled on the two pieces of legislation to which I referred earlier.

Section 6 enables the court to impose restrictions requiring an offender to refrain from certain activities, or conditions regarding certain activities. This provision is specifically provided for in section 14 of the 2009 Act. It is broadly similar to section 30 of the Sex Offenders Act 2001.

Section 7 allows the court to impose restrictions on the offender associating with or contacting specified persons. It is modelled on section 6 of the Bail Act 1997.

Section 8 provides that an offender may not be prevented from contacting or associating with immediate family members.

I recommend the scheme to the Houses.

Deputy Charles Flanagan

I thank the Minister for introducing this matter. It was something that was proposed from this side of the House.

Obviously, this feeds into our dysfunctional prison system in so far as I believe, as I have stated previously, that we need a root and branch reform of our prisons. We need to go back to basics and the fundamental role and function of prison within society. We do not seem to have moved in any event since Victorian times, where prison was put forward as a place where persons might be kept to remove them from circulation for the safety of communities but they would be rehabilitated within the prison system which, clearly, is not happening. Unfortunately, over the years our policies have been the provision of ever more prison spaces, and that simply is not working.

Without entering into a full debate on the matter and making a lengthy submission on the matter — the Minister knows my views in any event — I believe we cannot continue to be proud as legislators, irrespective of who is in government but particularly the Minister, Deputy Dermot Ahern, and his colleagues over the past 20 years, that the nature of the prison policy has been no more than the provision of spaces, where the Minister states at a party Ard-Fheis that he provided X hundred more prison spaces and a round of applause follows. It is much more than that. We need to look at who is in prison, who should be in prison and what prison is for. I welcome what the Minister did in the Fines Act 2010 and other initiatives in terms of ensuring that prison is reserved for dangerous criminals.

If we take that as our first principle, then we must look at the type of issue of which the Minister speaks, namely, the type of orders and reception available where persons are being released, be it on temporary release or having completed a sentence.

Sadly, only this week in my town of Portlaoise I came across a person who was released from prison homeless into society and who, as soon as he was released, engaged in the type of criminal activity for which he was imprisoned in the first instance causing considerable difficulties for many. The relationship between the probation services and the prison system needs to be co-ordinated in a more meaningful way. In short, we will have an opportunity of addressing this by way of plenary session in the Dáil.

I am concerned about the monitoring. We have heard the Minister speak of electronic monitoring, pilot schemes and agreement in principle, but that has not happened yet. I would ask the Minister to ensure that the court may, as well as requiring an offender to avoid certain locations, premises, areas and people, address the matter of electronic tagging. I see every reason it can be successful. It is something that cannot be introduced overnight but it is something that we have been looking at for quite some time.

The main issue for me is agreeing the principle, but how will the provisions will be monitored? On the face of it, these provisions appear to be demanding in respect of the Garda resources, in terms of manpower and technology. Will the Minister assure the House that he is confident the groundwork has been done to allow these provisions take meaningful effect. I welcome them. It is the way forward, but it is only the start of what will be a sea change in the manner in which society views detention and custodial sentences.

The cost of keeping a prisoner in our prisons has been reduced. It was less than €100,000 and now, because of cost-cutting measures, particularly in the area of pay, that has been reduced. However, that is really not the issue. The issue is what we believe the role and functions of prisons to be in society. It is my considered view that the prison system is dysfunctional and requires root and branch reform.

Deputy Pat Rabbitte

The requirement to prepare this scheme is a useful one and I hope we will see success under the prosecutions pending under sections 5 and 6. I take no issue with the motion.

Deputy Flanagan raised fundamental and topical issues that require a certain open-mindedness and responsiveness from the Department and the Minister that, to be honest, we do not get.

Thornton Hall is the high point of that lack of willingness to listen. We had embarked on this super-prison at enormous cost as the answer to the problems that we are meeting in the Prison Service. Financial circumstances have produced something of a re-think, but it is not fundamental.

The prison system is a powder keg, and that is especially true as it applies to Mountjoy. We are in the middle of taking evidence on that as a committee. There were some members of the prison visiting committee before the committee recently, and I am not sure whether we have had confirmation yet from the former governors, Mr. Lonergan and Ms Kathleen McMahon, who are coming before the committee to tell of their experience and advices in this regard. In the interim, it is clear that the Prison Service is under phenomenal pressure and the subject matter of this motion is not unconnected.

The limited time available is not the time to pursue this. Deputy Flanagan raised important questions, which to some extent we have been avoiding and which we need to address. I hope the clerk to the committee will be able to rearrange the opportunity for us to hear from the former governors of the Mountjoy complexes as soon as possible.

Deputy Dermot Ahern

On that latter point, I suggest in the interests of completeness the committee might also invite the replacement governor of Mountjoy who has taken up office in recent times.

I visited that prison in recent times and spoke to prisoners. I was open to speak to any prisoner who came up to me; it was not arranged. What I saw was in fairly stark contrast to what I have heard from some individuals. I am not saying it is ideal. That is the very reason the Cabinet has agreed to close ultimately Mountjoy. It is not suitable in the circumstances, in the middle of a city. There are measures being taken, particularly in the context of putting in preventative measures which were not put in heretofore, which will result in a dramatic turnaround in the level of drugs that get into Mountjoy.

I would like a utopian society where we would have no one in prison, but the fact is — it would be no different if the parties of the two Deputies opposite were in Government, either on their own or together, or with my party — there is a requirement for extra prison spaces. We have one of the lowest levels of prisoners per capita in Europe. I was in the UK and its per capita figure is at least twice ours, if not more.

Only those convicted of serious offences should be in prison, but by and large those in prison in any society would be required to be in prison. That is why we have made changes in recent times to take care of any perception that there are people languishing in prison for not paying debt or fines. The figures in that respect were somewhat exaggerated in that on a particular day a few months ago, before the passing of the Fines Act 2010, 0.2% of the prison population referred to fine defaulters.

With the best will in the world, many prisoners are not suitable for community service orders. We and the courts want to use community service orders on a more regular basis but the fact is that only a certain type of prisoner would be able to be dealt with in that respect.

Restorative justice is being used in two pilot areas. While on paper restorative justice is an excellent project, I understand that there are some significant issues, not least for the victims in that as part of the restorative justice project they are confronted by the person who offended. It may not be possible to use that measure on as widespread a basis as people would like.

Tagging sounds good on paper also and I hope it works out well in practice. In August, we will start to tag up to 20 prisoners and that pilot will determine how it will be rolled out in the future. There are quite a number of experts in this area, not only departmental staff or officialdom but also NGOs, who are not exactly certain whether this will be the success we feel it might be. We still require prison spaces.

Paramilitary crime and organised crime are at the top of my agenda but the next most difficult issue is overcrowding in prisons. We are endeavouring, as far as possible, to deal with it. Some 200 extra spaces will be created in Wheatfield prison and we will start the midlands project, creating approximately 300 spaces. We held discussions yesterday with the Department of Finance on the Thornton Hall project. The access road will be started in July and the new wall will be started either late this year or early next year. Fairly rapidly thereafter, we will start building one if not two major buildings to house 600 prisoners or more.

The way the figures are going, these spaces will be required. The success of the Garda Síochána and the fact that we have record numbers of gardaí, courts, judges and convictions contribute to this situation. In addition, people on all sides of the House called for longer sentences and the Oireachtas has passed successive Bills requiring longer sentences to be given. This means there is not so great a throughput from the prisons. In 1977 the average life term was 7.5 years whereas now it is almost 18 years. It does not take a rocket scientist to work out that the longer we keep people in prison the less space we will have. Maybe the Oireachtas should look at the implications on the prison population of passing Bills because they have significant resource implications. When we increase sentences, from ten to 15 years or five to ten years, it sends a signal to the Judiciary to be tougher on crime but that means fewer spaces in prisons, meaning we have to build more spaces. If anyone can come up with a silver bullet——

Deputy Charles Flanagan

It would be unfair of the Minister to characterise our position in that way.

Deputy Dermot Ahern

I often read comments stating that prisons are not always the answer and I accept that. It is unfair to say the prison system is crumbling. I have visited many prisons in the State and I am pleasantly surprised at the level of investment in training and education. I have been in foreign prisons and we are way ahead in the area of vocational training, educational training and medical facilities. The methadone clinic in Mountjoy Prison is the biggest in the State and is a state-of-the-art facility. Senator Bacik complimented the Prison Service on its facilities.

I thank the Deputies for the support they have given.

Chairman

Thank you, Minister. As we have now completed our considerations of the motions, in accordance with Dáil Standing Order 87 and Seanad Standing Order 72 the joint committee will report back to Dáil Éireann and Seanad Éireann to the effect that it has completed its consideration of the motions. Is it agreed that there should be no further debate on these matters by Dáil Éireann and Seanad Éireann? Agreed.

I thank the Minister and his officials for their attendance.