Criminal Justice Bill 2016: Second Stage

Question proposed: "That the Bill be now read a Second Time."

Minister for Justice and Equality (Deputy Frances Fitzgerald)

I pleased to present this Bill to the House. The purpose of this Bill is to strengthen our bail system to make the law as effective as possible in protecting the public against crimes committed by persons on bail while also safeguarding the rights of the individual. The programme for Government commits to the preparation and fast-tracking of legislation aimed at: providing for stricter bail terms for repeat serious offenders; strengthening Garda powers to deal with breaches of bail; increasing the use of curfews; and introducing electronic tagging for those on bail where requested by gardaí.

There are important objectives, which I hope command support in this House, which will increase protection for the public and victims of crime but which can be achieved while also respecting the rights of those facing criminal charges. The scope of the Bill was expanded during its passage through Dáil Éireann to allow a number of other important amendments to be made. This necessitated a change to the Title of the Bill from the Bail (Amendment) Bill to the Criminal Justice Bill, but it remains for the most part a bail Bill and I would like to focus initially on those aspects of the Bill.

The presumption of innocence is a fundamental principle of our criminal justice system. Flowing from that principle, every accused person has the right to liberty until and unless he or she is convicted of an offence. This right is guaranteed by our Constitution and the European Convention on Human Rights, but rights are not absolute and they do not exist in isolation. The State has a right and a duty to protect individuals from those who have no respect for law or justice. Our Constitution recognises the need to balance the right of an accused to liberty with the right of individuals to be protected from serious crime. It allows the courts to refuse bail to a person charged with a serious offence where it is necessary to prevent the commission of another serious offence by that person. The existing Bail Act 1997 implements this constitutional provision. However, the Bill before the house is a timely strengthening of our bail laws.

The Bill forms part of a wider programme of criminal law reform which includes the recent legislation providing for consecutive sentences for repeat burglaries, and the Victims of Crime Bill currently before the Dáil.

I will now turn to the provisions of the Bill and outline what is proposed. I will begin with the new provisions added to the Bill as it passed through the other House. Sections 2, 4, 11 and 12 of the Bill were all inserted on Committee Stage in Dáil Éireann and are all related so I will deal with these together. These amendments are technical in nature and, in general terms, are designed to preserve the legislative intent in provisions enacted in 2011 and 2014 and to address an anomaly that has arisen around commencement of the provisions in question. There is nothing new being provided for here, merely technical drafting adjustments to ensure that the legislation concerned can be operated as originally intended.

Section 5A of the Criminal Justice Act 1984 concerns the well-established right of a person in Garda custody to access legal advice and is aimed at clarifying the circumstances in which questioning may proceed, notwithstanding that a suspect has not yet had an opportunity to consult with a solicitor. The amendments in question are essentially concerned with the application of section 5A to the detention provisions of three statutes, namely, the Offences against the State Act 1939, the Criminal Justice (Drug Trafficking) Act 1996 and the Criminal Justice Act 2007.

Section 3, which was also inserted on Committee Stage in the Lower House, amends the Criminal Justice (Public Order) Act 1994 in order to give the Garda Síochána the statutory power to detain intoxicated persons who have been arrested for a public order offence. To date, gardaí have relied on a presumed common law duty of care to intoxicated persons to justify such detention but this is an unsatisfactory situation and should be placed on a statutory footing. I have been asked to do this by the representative associations and the Garda Commissioner. The new provision allows the Garda Síochána to detain intoxicated persons who have been arrested for an offence under the 1994 public order Act and who, but for this new provision, would be released. Such persons can be detained for a period not exceeding six hours where the member in charge of the Garda station in which they are in custody is of the opinion that they are intoxicated to such an extent as to be considered a danger to themselves or others if released.

The provision also allows release prior to the expiration of the six-hour detention period. This will ensure that persons are released once they are no longer considered a danger to themselves or others. A similar provision is contained in section 16 of the Road Traffic Act 2010.

Section 5 expands the factors which a court may take into account in refusing bail where this is reasonably considered necessary to prevent the commission of a serious offence by the person. Section 5 specifically provides that a court may take into account the extent to which the number and frequency of any previous convictions of the accused person for serious offences indicate persistent serious offending by the accused. It also enables a court to take into account the nature and likelihood of any danger to the life or personal safety of any person or danger to the community that may be presented by the release on bail of a person charged with an offence punishable by ten years' imprisonment or more - in other words a very serious offence.

The decision to refuse bail will of course always be a matter for the court. These additional factors which the court may take into account will, however, constitute significantly strengthened guidance from the Legislature on the factors relevant to decisions on the granting or refusal of bail.

Section 6 of the Bill expands the number of conditions which may be set by a court in granting bail. A court has general discretion to attach conditions to bail. Section 6 of the Bail Act 1997 also lists specific conditions which may be imposed, for example, a requirement to reside in a particular place, report to a Garda station or refrain from going to certain places or having contact with certain people.

Three new specific conditions are being added to this list by this Bill: to refrain from direct or indirect contact with the victim of the alleged offence or any member of his or her family, which is an important provision; to refrain from driving a vehicle where the person is charged with a serious driving offence; and to observe a night-time curfew, whereby the person on bail could be required to stay in a specified place between 9 p.m. and 6 a.m. the following morning. These are very practical provisions.

Section 6 of the Bill also provides for the arrest without warrant of a person on bail in very carefully defined circumstances which respect the constitutional rights of persons facing criminal charges. Gardaí already have power to arrest a person on bail who is about to contravene a condition of bail, but only on a warrant of arrest issued by the court. Section 6 contains a limited but important power of arrest without warrant of a person on bail who has breached, is in the act of breaching or is about to breach, a condition of his or her bail and the immediate arrest is necessary to prevent harm to, or interference with, the victim, another witness or another person that the court has specifically tried to protect. These are very carefully defined circumstances.

Section 7 deals with electronic monitoring. The Bail Act 1997 was amended in 2007 to permit a court granting bail to make it a condition of bail that the person’s movements are monitored electronically. This provision has not been brought into force, largely because of concerns over how best to operate a system of electronic monitoring in a way that is sustainable and targeted. Section 7 therefore amends the existing non-commenced provision by linking electronic monitoring to an application by the prosecution. The objective is to ensure as far as possible that electronic monitoring is used in bail cases on a consistent and sustainable basis, and that it is focused on those cases where it will prove most effective. In this regard I should say that, in parallel with the passage of this Bill, a working group has been established to identity how best this provision might be operated, including the categories of offences or offenders most suitable for electronic monitoring and the making of contractual arrangements for the provision of this service.

Section 8 introduces an important new provision as regards the evidence which a court may hear when deciding on an application for bail. It will enable a court to hear evidence from the victim as to the likelihood of direct, indirect or attempted interference by the accused with the victim or a member of the victim’s family. Evidence may also be heard as to the nature and seriousness of any danger to any person that may be presented by the release of the accused on bail. The section also provides that, where the victim is a child under 14 or a person with a mental issue, such evidence may be given on the victim’s behalf by a parent, guardian or family member.

Section 9 of the Bill requires a court to give reasons for its decision to grant or refuse bail or to impose conditions of bail. The objective of this provision is to provide as much transparency as possible in the hearing of bail applications and the greatest possible understanding of decisions of court.

Section 10 inserts a new section into the Bill to add two additional offences to the Schedule to the Bail Act 1997. The Schedule to the Bail Act sets out the list of offences which, if punishable by a term of imprisonment of five years or more, are considered serious offences for the purposes of a bail application. The two offences which will be added to the Schedule by this amendment were both inserted into section 106 of the Road Traffic Act 1961 by section 17 of the Road Traffic Act 2014. They are effectively hit and run offences. The offences target individuals who seek to avoid sanction by leaving the scene of a road accident having killed or injured an individual. A person guilty of such an offence is liable, under the Road Traffic Act, to a fine or to imprisonment of up to seven years in the case of injury and up to ten years in the case of the death of a person. These are a very serious offences and, as such, are appropriate for inclusion in the Schedule to the Bail Act.

A Chathaoirligh, these are clear and focused provisions which will enhance the powers of courts in deciding whether to grant bail, and which will improve the legitimate control which courts may exercise over those who are granted bail. They will enhance the protection of victims of crime and those at risk of crime, while respecting the rights of those accused of crime. They strike the right balance in improving the law on bail, and I hope they will get support across this House. I look forward to hearing the views of Senators.

Senator Paul Daly

I welcome the Tánaiste to the House and thank her for her synopsis of the Bill. Fianna Fáil welcomes and will be supporting this Bill aiming to strengthen the bail laws because we believe that the existing bail laws are far too lax. There have been many serious crimes committed by people on bail. The figures are frightening and startling, when one goes through a brief synopsis of them. CSO statistics state that in the last four years 84 people have died at the hands of people on bail, an average of eight people per annum, coupled with the fact that in the last decade 285 people are suspected of committing sexual offences while on bail, including 18 last year, along with 124 suspects accused of kidnapping while on bail.

The highest number of crimes committed by suspects on bail fall under offences against the Government, justice procedures and organisation of crime, at a total of 70,169 in the last ten years. Theft-related offences are the second most common at 54,492, followed by public order offences at 48,966. In total, 246,843 crimes were committed in the last decade by suspects on bail, the equivalent of 474 crimes per week. People reading these figures and statistics who have an issue with strengthening the bail laws would have to seriously question themselves.

I will not go through everything the Minister has gone through, section by section in the Bill. Under section 5 the fact that the court can take into account the number and frequency of previous convictions and the likelihood of danger to a person or a community, or relating to previous incidents, in refusing or placing conditions on bail, has to be welcomed.

With regard to section 6, increasing the range of conditions attached to bail, prohibiting the accused from making any contact with the victim or victim's family, or prohibiting driving in the case of a road traffic offence, and affording An Garda Síochána the power to arrest without warrant, is a very important condition but also a very tricky one. Senator McDowell and others here would be more legally-minded than I, but it is hard, even with the new Bill, to justify or to be confident that one is legally correct in arresting anybody who one presumes has the intention to offend. What is stated in the Bill is that the intention of committing further crime allows for arrest without warrant. I would be sceptical and wary about that section.

Section 7 allows for electronic monitoring as a condition to be applied on application from the prosecution. I welcome this provision and electronic monitoring is something I advocate. I would like to ask the Minister however, if the financial resources will be available if and when this Bill becomes law and the Judiciary and An Garda Síochána decide to enforce this monitoring. We have had some use of electronic monitoring in the past at exorbitant expense, so I ask the Minister if the resources will be made available for its introduction.

In section 8, it is welcome that the court can consider evidence from the victim before offering bail.

This is where interference is most likely to be highlighted concerning the accused, when evidence can be taken from the victim. In general, the Bill is to be welcomed with amendments, which include the change in public order legislation with regard to the detention of intoxicated people. Hitherto, gardaí were in a vulnerable position whereby they had to use the presumed common law of duty when detaining people whom they considered a danger to themselves or society due to intoxication. Now, however, by virtue of the fact that this provision will be introduced in the legislation, gardaí will be legally entitled to apprehend somebody for up to six hours. That must also be welcomed as it takes gardaí out of that precarious position.

We will be supporting the Bill, which is welcome. It is long overdue because, given the statistics, it is frightening to see the level of crime, devastation, destruction, pain, sorrow and grief that has been caused by people while on bail. In many cases the State gets the blame when crimes are committed by those who have been convicted and are then released on bail.

I welcome the Bill and thank the Minister for attending the House.

Senator Michael McDowell

I welcome the Minister to the House. I have no particularly strong views on this legislation in terms of finding any major fault with it. However, I think a couple of points should be made.

First, Senator Paul Daly mentioned the question of empowering gardaí to arrest people without warrant for a breach of bail conditions. We should draw some comfort from the fact that it is necessary for a garda to do that and that he or she should consider it is necessary to arrest the person immediately to prevent harm to, interference with or intimidation of the person in respect of whom the offence is alleged to have been committed, a witness to the alleged offence, or any other person specified in a condition referred to in subparagraphs (5) and (6), or subsection (b) of section 1. It is not therefore a power of arrest which is general; it is quite narrow and, in fact, may be too narrow. It is narrowly confined to protecting life and limb, rather than simply arresting people who have breached the terms of a bail bond and have not turned up at a Garda station. It does not apply in those circumstances.

As regards the issue of electronic tagging, the Tánaiste has indicated that this is something which was already visited in 2007 when I was Tánaiste. At that time, I recall having fairly substantial misgivings about the practicality of it. As Senator Paul Daly pointed out, electronic tagging is an expensive operation. In the UK, in particular, it has proven to be quite expensive and controversial because of the expense involved. Nobody should think that it is some great cure-all in respect of the crime rate. As I recall, it was something that was then introduced into the legislation on a facilitative basis, but not with confidence that it would make a dramatic difference to the crime rate.

We should be conscious that every person who is denied bail is remanded in custody to a penal or custodial institution. In present circumstances, the result is that somebody else is released because we have got to the point of saturation in our jail system. Therefore, the question of denying people bail pending trial is one of which we must be conscious. It frequently results in somebody else having the punishment that is provided for by the courts cut back due to pressure of numbers.

I would like to say one thing, although it is probably not solely in the Tánaiste's bailiwick. It is nonetheless something which we have to get our heads around, namely, that bail in Ireland is fairly liberally available in the context of the presumption of innocence. That is fair enough and nobody would want to attack those concepts too heavily, as long as the bail law is reasonable. One thing that increasingly worries me, however, and which was a cause of concern to me as Minister for justice, is the delay in the prosecution process which is huge and unjustifiable. It comes down to the presence of a different culture in Ireland whereby, because of our bail system, we tend to take a more relaxed view about getting on with cases. All of us feel anecdotally, looking at ITN, BBC or Sky News, that it feels strange to us that people are going to jail having been tried and convicted in the UK in a timeframe in which, in this jurisdiction, the criminal justice process would just be cranking up to deal with them.

The question of files going to the Director of Public Prosecutions, the investigative process generally, and the consideration of files that are sent to the DPP, seem to me to be dealt with in a far more leisurely way in this jurisdiction than abroad. I am not criticising anybody. This is not a party political point or even a political point, but it was something that concerned me ten years ago and still does now. There is a difference in approach in this jurisdiction which means that people who are prosecuted for serious crimes and granted bail, are frequently waiting two years before they have to face the adjudication of their offence, particularly for serious offences on indictment. That is not something we can live with forever. We should have a sense of urgency and determination to get court cases on early.

I also think that the criminal justice process is becoming elongated. When I started as a barrister, both defending and prosecuting, in the 1970s - it seems a long time ago now - cases were much shorter. Serious enough cases were dealt with in a day or two, whereas everything now seems to take a week. The amount of time the criminal justice system has allocated to the trial of offences has expanded. When I was Minister for Justice, I remember being concerned about that and setting up a group to rebalance the criminal law. It struck me then that the amount of protections, most of which were legitimate, we were putting in for the accused person in terms of access to documentation and evidence, put a huge strain on the prosecution process. Consequently, the prosecution of relatively small issues, such as burglaries, has become a lengthy procedure.

I do not wish to talk too much about recent court cases, but the amount of issues that are dealt with in the absence of juries at great length seems to be growing all the time. Our criminal justice system is losing a sense of immediacy.

I suggest to the House and the Tánaiste that we will now have to look at one single issue, which is the delay in and complexity of the criminal justice process. It is getting so complex that it is becoming unwieldy. The result is that public confidence is being somewhat affected in the way in which criminal justice is administered.

Senator Martin Conway

I join with my colleagues in welcoming the Tánaiste to the House. She is a regular visitor here to introduce forward-thinking legislation.

I find myself in the position of agreeing with my colleagues, Senators Paul Daly and McDowell. That is not unique because, unlike elsewhere, it often happens in this House. We are fortunate to have the current Tánaiste and Minister for Justice and Equality and the former Tánaiste and Minister for Justice, Equality and Law Reform in the House with their collective wisdom and experience in this area. I find myself agreeing strongly with Senator McDowell on the issue of delayed justice. It is often said that delayed justice is not justice at all. Our court system tends to be clogged up, and it and our justice system tend to take longer than probably would have been the case when Senator McDowell was called to the Bar, however many years ago that was. That is a symptom of lack of resources, the recession and various challenges, difficulties and complexities. This has all led to cases being delayed and taking much longer to deal with. The Cathaoirleach, with his eminent and significant legal background, would probably subscribe to those views as well.

This legislation is welcome and I cannot see why anybody would have a problem with it. There are challenges with regard to the electronic element of it. The cost implications are also significant, difficult and challenging. Bail legislation constantly evolves. If we are fortunate enough to be here in the coming years, we will find ourselves constantly changing and updating this legislation, not just to do the right thing but also to reflect the times in which we live. What would have been relevant a decade ago is certainly not relevant today and what is relevant today will certainly not be relevant in a decade. We will be constantly reviewing and updating this legislation, which will evolve on a continuous basis. I am sure that if Senator McDowell had his time as Minister for Justice, Equality and Law Reform, between 2002 and 2007, back again he would probably, on reflection, do things quite differently. I am sure that An Tánaiste will look back in ten years' time and say that she would have done things differently also. All a Minister can do, however, is deal with the set of circumstances before him or her at a specific time, take advice from the Attorney General and senior officials in his or her Department and present legislation which takes account of the relevant concerns and which is balanced in terms of reflecting people's liberty and so forth.

Senator McDowell is correct in noting that we have very liberal bail laws in the country. Other countries' bail laws are certainly not at all as liberal as ours but cases are dealt with much more quickly in those jurisdictions. It is a constant balancing act to try to do the right thing, to be fair to everybody and to allow natural justice to prevail across all categories. On balance, the legislation before us is extremely welcome. Do I believe it will be changed as time goes on? The fact is that it was altered in Dáil Éireann when it was debated there. The legislation was enhanced as a result of the changes made in the Lower House. The Bill is welcome but it is a work in progress. It will always, in essence, be a work in progress. I am glad, however, that there is unanimous acceptance that this particular work in progress is positive, that it strikes the right balance and that it is incumbent on us to pass it.

Senator Niall Ó Donnghaile

I never enjoy rising to disagree with my colleague, Senator Conway, even if in just a small, modest way. Tá fearadh na fáilte roimh an Tánaiste go dtí an Seanad inniu. The Tánaiste is very welcome. I have actually found the contributions from colleagues thus far very insightful. I agree with the vast bulk of the sentiments expressed in respect of and the practicalities relating to this Bill. Obviously, as the Tánaiste will be aware from previous discussions, our party has some concerns, which I do not believe are insurmountable. If we were to overcome them, it would greatly benefit and add to the legislation.

I will start by saying that Sinn Féin welcomes the opportunity to speak on this Bill. We note that the Garda Inspectorate recently raised with the Joint Committee on Justice and Equality the fact that gardaí are obliged to seek warrants in order to arrest persons who breached their bail conditions in the past. This Bill would amend the position in this regard, which is a welcome initiative. It is interesting that the Government has sought to listen to the Garda Inspectorate in this particular aspect of its complaint regarding bail but not where it complained that there was virtually no monitoring of suspects while they were out on bail. It has reached the point where the Garda Inspectorate has said that it doubts whether gardaí at many stations would even notice if a suspect failed to show up to sign in.

We recognise that levels of crime which are not insignificant are committed by people while on bail. However, it is important that we look at this in a rounded manner and not simply base justice policy on crude tabloid headlines. The fact is that suspects would be monitored more effectively while on bail if the Garda had the resources to do so. Colleagues have already touched on the issue of resourcing. People would, of course, be less likely to be out on bail if their court cases were held promptly. That issue has also been touched upon. This is not something that can be addressed by simply having more legislation that will inevitably lead to greater levels of incarceration. It is fundamentally about using resources more effectively.

When the legislation was debated in the Dáil, there was extensive discussion around electronic monitoring and how it would operate. Electronic monitoring is not a substitute for evidence-based crime prevention measures. We are in favour of protecting the right to bail and the presumption of innocence within the legal system. We recognise that, by virtue of the numbers within the Houses of the Oireachtas, it is likely that electronic monitoring will become a feature of our criminal justice procedures. On that basis, we will engage in respect of the legislation and put forward amendments in an effort to make it better.

There was an attempt in the Dáil to remove the provision concerning the amendment of section 6 of the Act of 1997, under which a garda is given the power to arrest a person without warrant if the officer is of the view that the person is about to contravene a condition of their recognisance. Essentially, gardaí are being given a very wide-ranging power to deal with crimes that have not yet been committed. It may be that the potential crime is not going to happen, but as long as a garda thinks that it is, he or she is permitted to make an arrest. It should not be the case that powers of arrest are simply extended when there are no resources being put in place for bail supports and services. The particular provision is vague and needs to be addressed.

To return to the issue of electronic tagging, we will table amendments that are based on the Council of Europe's 2014 recommendations on electronic monitoring. It is absolutely essential that safeguards are put in place that will protect data accrued from the use of tagging. It is also essential that where monitoring is happening, it is carried out by a body on a not-for-profit basis. The Minister will know that just last week we passed legislation that sought to counter some of the very real and dangerous issues that exist in terms of accruing data and how it is handled and possibly misused and abused subsequently. There are issues here regarding Article 8 of the European Convention on Human Rights, which relates to privacy provisions. This is not some off-the-wall proposal. It is reasonable, necessary and proportionate in light of the technology-based world in which we now exist. We all acknowledge that danger. The Minister's response to these arguments in the Dáil was deficient to say the least. She has gone on record as saying that the Data Protection Acts 1988 and 2003 are sufficient. I beg to differ. If the amendments we table are not accepted, we may find ourselves recalling this lack of understanding of how data is used when there is an inevitable scandal in years to come. I do not say that to be contentious or confrontational; I say it because my party and I have very genuine concerns that what I have outlined could come to pass.

The Minister maintains that introducing an amendment which would prevent private operators engaging in monitoring on a for-profit basis would have an impact on how the system is currently overseen by the Prison Service. There is no law which says that the State cannot do this. There is absolutely no rule that says we must privatise and outsource everything. There are some things that simply should not be outsourced and this is one of them.

We will also table amendments to ensure that judges provide, in writing, reasons for their decisions. This is not a lot to ask. It is not an onerous task for the courts to provide something that makes available a record of decisions made in bail cases. This would be as much in the State's interest as in that of the defendant who is applying for bail.

If it is not possible to have it in all cases, it should at least be available on the request of the defendant. The useful suggestion was made in the Dáil that if a judge does not provide written reasoning for a decision, the audio recording of the judgment could be automatically transcribed. That would probably be a costly measure but we need to examine whether there is consistency in decisions on bail applications.

Several other areas of the Bill were not adequately dealt with in the Dáil and Sinn Féin will be tabling amendments to rectify these areas as indicated in Dáil debate. We ask that the Minister reflect on these issues and either accept our amendments at a later Stage or consider bringing forward amendments of her own.

Senator Frances Black

I welcome the Minister to the Chamber today and thank her for the opportunity to discuss the Bill. I support its passage to Committee Stage but there is considerable work to be done on it. The issue should be approached bearing in mind the basic principle that people are innocent until proven guilty, which is a fundamental bedrock of our legal system. As such, the decision to refuse someone bail is should be taken very seriously. In certain circumstances, such as when there is a real risk of further violent crime being committed, bail may be refused or agreed to on conditions. As a general principle, incarcerating someone before they are proven guilty should be an action of last resort.

It is often stated at the Joint Committee on Justice and Equality, of which I am a member, that there are too many people in our prison system. This is particularly true when in the context of non-violent offences such as a failure to pay a fine. The “lock them up” attitude may be good for selling newspapers but it is not an effective or humane approach to making society safer. Caution is needed when discussing measures that could increase the number of people denied bail and thus incarcerated while awaiting trial.

Elements of the Bill such as the commitments to increased transparency are very welcome. The Bill would require a court to provide reasons for its decision to grant or refuse bail or to set bail conditions. I welcome this measure as a means of promoting transparency and openness in our judicial system. It is important that there is justification for decisions which are made.

I am concerned by other areas of the proposed legislation. Section 3 would expand possible bail conditions such as prohibiting contact with the alleged victim or revoking a driving license. However, the Committee on Justice and Equality has been given evidence of bail decisions being made in two or three minutes because of the volume of cases judges need to get through. In that context, time pressures may lead to blanket bail conditions that are not proportionate or necessary being handed out. This view tallies with research conducted by the Irish Penal Reform Trust which showed that people charged with low-level offences were often given several bail conditions, regularly similar to those accused of higher-level offences. In this regard, some of the suggested additional conditions are worrying, in particular the imposition of a night time curfew between 9 p.m. and 6 a.m. In some instances, such a condition may be warranted. However, if the Minister wants to expand court powers, she must ensure that the courts are adequately staffed and have the resources needed to wield those powers with due consideration. This question of available resources also touches on the issue that if people are denied bail, they must be brought before a court in a timely manner which was raised in discussion of the Bill in the Dáil. This principle is enshrined in international human rights law. If it is deemed necessary to make bail conditional or deny it in exceptional circumstances, the accused must have a trial within a reasonable amount of time.

I have strong reservations about section 4, which deals with the use of electronic tagging. I welcome efforts to have fewer people held in custody but this is very dangerous territory. The Council of Europe, which is the primary human rights body in Europe, has recognised this strategy but it has several important caveats regarding proportionality, proper regulation and respect for civil liberties. There is enormous potential for a system of electronic tagging to be abused. In principle, I have serious concerns with tagging people in this manner. Private security companies may be contracted to run electronic tagging schemes. Their primary motivation is profit as opposed to the rights of the individual or the welfare of citizens. That has been seen in terms of direct provision and could be seen in regard to this issue. In light of these concerns, I welcome the Tánaiste’s decision to establish a working group to specifically discuss this contentious point. We need to be mindful of whether it is morally right and whether it is effective.

My background is working with people who have addiction and substance abuse problems and their families. The biggest thing lacking in the Bill is that there is not enough consideration of proper support for people on bail. If we want to reduce crime and repeat offences and ensure that bail conditions are met, the right supports for people must be provided. Affected people are often in enormously difficult situations and from hugely underprivileged backgrounds. Crimes such as theft are often linked to drug addiction, poverty or alcohol addiction. It will not be as popular in the papers as being tough on crime but we need to push an evidence-based and humane approach to reducing crime. Bail supports that include measures such as drug treatment, addiction counselling and mental health provisions can have a huge impact. Such supports should be a central feature of the Bill but are currently absent from it.

In common with other Senators, I support the Bill going to Committee Stage but there is work to be done there. In particular in respect of the absence of the right supports, I am concerned that the Bill takes a punitive approach as opposed to a humane, genuine effort to reduce crime.

Minister for Justice and Equality (Deputy Frances Fitzgerald)

I thanks Senators for their contributions. Some critical points have been made. Senator Paul Daly and other Senators are concerned by the scale of offending that is carried out by persons on bail. That is an issue that needs to be addressed and I share those concerns. That is one of the reasons I have brought forward this Bill with its particular provisions.

It is clear from Senators' contributions that people are equally concerned that the rights of accused persons be respected. That is a balance I have tried to reach with the Bill. We want to make the law as effective as possible in protecting the public against crimes committed by persons on bail and also safeguard the rights of individuals. We must get that balance right. The Bill will give greater guidance to the courts, which is important.

The Bill is victim-centred. The Criminal Justice (Victims of Crime) Bill 2016, which will soon be dealt with on Report Stage, and the EU victims directive, which must be implemented, will bring about a sea change in the administration of justice and put much-needed emphasis on the rights of victims across the criminal justice system and agencies. The Bill is sensitive to the needs of victims, which is very important.

I take on board the points regarding the complexity of cases and the access to justice in a timely way made by Senator McDowell, particularly given his experience and expertise in this area. We need to examine how the complexity can best be dealt with and what initiatives can be taken to ensure justice is done in a timely manner. A number of initiatives I have taken will contribute in this area. One such initiative is support for the Courts Service IT requirements. That is very important and has been under-invested in in the past. Mr. Justice Peter Kelly is head of newly formed group examining court procedures, how they can be modernised and what lessons can be learned from other jurisdictions. He has begun that work and I am very grateful to him for chairing the group and initiating that review. It will be helpful.

There are other issues. Senator McDowell mentioned a culture around bail and it being something to which we have become used. The Senator is correct that that needs to be questioned. The time period for evidence gathering by the Garda needs to be examined. The Senator is not the only one who has noticed that timeframes of trials are very different in other jurisdictions such as the United States or the UK. That is a very real issue. We need to consider what initiatives should be taken to make a difference on this issue. We need to be more intolerant of the timeframes currently in operation.

There is much pressure on the courts also. I have been concerned by the question of resources for the courts. Extra resources have been allocated to the Courts Service.

There are also practical considerations such as the environment in which the courts operate, for example, the new family court building in Hammond Lane will provide far better facilities for family law cases, among others. We have not had the right conditions up to now. The criminal courts have a very good environment in which to operate now but there is work to be done on that as well.

Regarding an arrest by the Garda without a warrant, Senator McDowell made the point that it is circumscribed, and that it is very carefully laid out. An example would be where an accused person who has been prohibited from contacting a victim as a condition of bail pulls up outside the victim's house and there is clearly an intention to go in. Although the person has been told that he or she should not do so, it is terrifying for the victim. I do not think the victim should have to wait for the person to gain entry into the house, given the circumstances where there is an order that the person has been prohibited from contacting the victim. Depending on the history and the details and conditions of bail it is reasonable to say that if a victim is in a terrifying situation and makes contact with the Garda in those circumstances, it is one where that judgment will have to be made by the Garda and it is a reasonable one to have. Much of the Bill has come about from discussing with people who are involved in those issues day to day and their experience on the ground of what is needed.

A number of points have been made about electronic monitoring. The Senators are correct that it is not a panacea in terms of the issues we are talking about today but it is one element to be considered in certain cases. The group that we have established to look at the issue is examining what offences might be considered in terms of the best use of such monitoring. It is reasonable to allow private security companies to tender for the service as well, but it is not a blank cheque for them or anything like that. The measure must be used very carefully. It is the prosecution that can now ask for it. The measure will allow costs to be controlled and it can be imposed in cases where it is most likely to be effective. However, it is only one element of dealing with the issues we are talking about today.

Senators Conway and Black spoke about support and resources. There is much interesting work going on between the prison and probation services now to prevent people going into prison in the first place, but where there are repeat offenders and recidivist behaviour they target and work effectively with that group of offenders. For the first time ever there has been serious work in a focused way between the Probation Service, the Prison Service and the Garda. The results to date are very encouraging because of the very intense focus on repeat offenders and looking at all of the factors that are affecting repeat offending and recidivism. I expect we will get really good results from that as well as from the youth diversion programmes. We are putting more and more resources into such work. We are seeing the number of prisoners decrease and more focus on rehabilitation. That is important to consider where it is feasible. Where people commit serious crimes and it is clear that they need to be kept in prison that must be done to protect the public.

I thank Senators for their broad support for this Bill and I look forward to further discussion on it. Senator Ó Donnghaile said he had a number of amendments. I have addressed quite a few of them in the Dáil because they were tabled already and I have given my perspective on them. I do not envisage that I will be changing my position because I have gone into quite a bit of detail in my response to the amendments but I look forward to the discussion.

Question put and agreed to.

Seanad Éireann díospóireacht -
Tuesday, 30 May 2017