Priority Questions
33 Deputy Dara Calleary asked the Minister for Justice and Equality his response to the latest statistics regarding offences committed by persons released on bail; and if he will make a statement on the matter. [11946/11]
Amharc ar fhreagraI am conscious of public concern about the extent to which offences continue to be committed by persons on bail. I share that concern. Our bail law must be continually reviewed to ensure that all possible avenues are taken to protect the public against the commission of crime, particularly serious crime, by persons on bail. In doing this, we have to take account of the restrictions which exist from the provisions of our Constitution and the European Convention on Human Rights on the extent to which the right to bail can be limited.
My Department is engaged in work to consolidate and update bail law with a view to presenting a clear, accessible and modern statement of the law. In the context of that modernisation of the law, I will seek to restructure the law so that it has a focus on the protection of the individual and the protection of the public. My intention is that the new proposals will provide better guidance to the courts on how such protection might be provided. I also take the opportunity to introduce some general improvements to bail law to improve the overall working of the bail system. In the coming weeks, I will bring proposals to Government on the matter. In bringing forward my proposals, I have to be conscious of the likely effect on prison accommodation, which, as the Deputy will appreciate, is under severe pressure.
I welcome the Minister's commitment on bringing forward new proposals and I am conscious of the difficulties that arise in respect of prison accommodation. I will focus on the serious offences that have been committed, although I do not want to fall into the argument taking place across the water because every offence is serious. In planning prison accommodation, consideration should be given to restricting bail for the offences of murder, manslaughter, sexual assault and personal assault or where the possibility arises of witnesses being intimidated. The murder of a relation, sibling or spouse is already a dreadful experience but if the offender is supposed to be in custody for another offence it must appear to the relatives that the State has failed in its duty of protection. It is very difficult to justify a murder by somebody who should be in the custody of the State.
If the bail laws are being reviewed, perhaps consideration could also be given to the guidance offered to judges and the Prison Service. What level of co-ordination exists between the Courts Service and the Prison Service in regard to the number of spaces available in prisons when sentences are imposed? Co-ordination is needed on the number of daily vacancies in prisons if we are to tighten up this issue.
There are not what I would describe as daily vacancies in the prisons. The reality is that our prisons are severely overcrowded. It is a matter of great concern to me that such is the case. It is a consequence of appallingly bad planning by the previous Government over a period of 14 years, which has created the anomaly that approximately 15% of those who should be serving prison sentences are currently on temporary release. I agree with the Deputy regarding the circumstances that require the courts to be very cautious in granting bail and trying to avoid, in so far as it is ever possible to do, circumstances in which someone who is granted bail commits a serious crime, be that murder or another offence.
The proposal in the Bill, on which considerable work has been undertaken, provides that the courts must have regard to the nature and seriousness of the danger to any person or the public posed by the release on bail of an accused person and the persistent nature of offending by an applicant for bail. If someone is a continuous offender it is of particular importance that he or she is not given repeated grants of bail that allow him or her to re-offend. I am particularly conscious that there is a problem in this area. There will be guidance for the courts as to the circumstances generally in which bail should be refused for people charged with certain types of serious crime, essentially, offences punishable by 15 years imprisonment or more. Such offences include murder, manslaughter, drug trafficking, organised crime and rape, as well as certain offences in the white collar area to which this should perhaps also apply.
Detailed consideration is being given to the matter and I reiterate that we have to be careful to ensure we approach it in a manner which does not result in us being in violation of the European Convention on Human Rights. Our primary concern is to ensure that while preserving the principle that people are innocent until they are found guilty, we also protect the general public and potential victims of crime from those who have already been charged with an offence and whose history makes it clear they pose a real and present danger to thepublic.
34 Deputy Jonathan O’Brien asked the Minister for Justice and Equality his plans to update the personal insolvency laws and when he intends to do this; and if he will make a statement on the matter. [12046/11]
Amharc ar fhreagraA personal insolvency Bill is in the course of being developed in my Department to provide for a new framework for settlement and enforcement of debt and for personal insolvency. I have engaged in detailed discussions with officials in my Department with regard to the content of such a Bill. The provision of this legislation is a commitment under the EU-IMF programme and is intended for publication in the first quarter of 2012. However, it is my objective to publish, if possible, the measure ahead of the EU-IMF deadline given the importance of addressing this area of our law and putting it into a modern framework.
In developing the Bill, account is being taken of the recommendations of the Law Reform Commission in its recent report on personal debt management and debt enforcement. That report provided an in-depth review of the personal debt regime. The economic and financial effects of certain of the new arrangements are being carefully assessed to ensure that all relevant issues are addressed and their impact is fully anticipated and understood. It must be clearly understood that the reform of the law with regard to bankruptcy and insolvency is not simply a matter of a change of legal structure. There are consequences of an economic and financial nature which impact on individuals and the wider community in the context of the reforms we ultimately adopt.
The civil law (miscellaneous provisions) Bill, which is being drafted with a view to publication as soon as possible this year, will contain some interim measures on reform of the law on bankruptcy. The previous Government published a Bill which contained certain measures in that area and I have engaged in a review of that legislation. There will be some modification of its content, as will be clear when the new Bill is published. As it stands, the Bankruptcy Act 1988 does not meet the needs of modern social and economic conditions. Consideration is currently being given to the specific measures that will be contained in this Bill, which I envisage will comprehensively reform the law in this area.
I welcome the Minister's comments on the legislation due for the first quarter of 2012 in regard to his desire to introduce it ahead of schedule if possible. The recent comments by the Master of the High Court, Mr. Ed Honohan, focused our attention on the stark reality faced by many families. This House spent several days discussing the issue of suicide. Mr. Honohan's comments on the actions of banks which are pursuing people for mortgages, credit card debt and personal loans gives rise to the question as to how these institutions operate. When one considers that most of these loans have already been written off by the banks, this behaviour is a disgrace.
In regard to the legislation the Minister hopes to introduce before the end of the year, how quickly does he think he can have it prepared? How complex is the issue and will the legislation cover all forms of personal debt and debt forgiveness?
What is envisaged is the enactment of comprehensive legislation in the area of insolvency which will substantially reform current law and provide new structures to facilitate addressing issues of debt. The structures will vary depending on the level of debt and the nature of the debts held by the individuals concerned. I am sure the Deputy will appreciate that as we are in the developmental stages of the legislation I do not wish to address it in full detail at this stage. It will reflect some of the proposals in the reports that have been published but will not rigidly stick to them because we are looking at better and more realistic solutions in some areas than those which have been proposed. The legislation is scheduled for publication in the first quarter of 2012. With the assistance and support of my officials in the Department, the work we are doing has led us to be optimistic that we can publish the Bill ahead of schedule. It is usually the opposite in the case of legislation. However, I do not want to give a specific date. If we do not manage to publish the Bill ahead of schedule, I give an absolute commitment that it will be published early in the first quarter of 2012. However, I am hopeful we will see it some time prior to Christmas.
I am aware of the remarks made by the Master of the High Court, Master Honohan, and am certain he means well in highlighting an issue that is of concern to many people and of which he has been made aware by way of proceedings in his court. However, Master Honohan referred in his comments to his proposed solution to all of this as a "back of the envelope" solution that appeared to be very simple. It is anything but simple, and indeed back of the envelope solutions can be extraordinarily dangerous. It is correct to say that in the due diligence that has been undertaken on financial institutions there has been factored in possible losses that may arise, for example, in the home mortgage area. However, there is a national interest and hope that some of those losses will not materialise and that people will be able to meet their financial obligations. We must be wary in how we draft this legislation to ensure we do not precipitate some additional financial difficulty or crisis that should be avoided and that we do not create a situation where people who can meet their financial commitments are provided with a mechanism simply to renege on them to the overall detriment of the community and to the further detriment of our financial institutions. While I am anxious that we introduce comprehensive reform we must do so bearing in mind the economic circumstances and the financial impact of any reforms that may be introduced while having a clear vision of the social issues that must also inform the legislation.
35 Deputy Catherine Murphy asked the Minister for Justice and Equality if there is a system of redress for those who engage legal professionals whereby they feel they have been overcharged for services rendered; if so, the system concerned; the role he plays in respect of this; and if he will make a statement on the matter. [11721/11]
Amharc ar fhreagraI have no function as Minister in the investigation of complaints against a solicitor or barrister for overcharging. Generally, when a person takes issue with costs incurred as a result of a legal action he or she opts to have them taxed by the Office of the Taxing Master. The Taxing Master, as a court officer attached to the High Court structure, provides an independent and impartial process of assessment of legal costs which intends to achieve a balance between the costs involved and the services provided.
Once an application has been made for a taxation of costs it must be demonstrated to the Taxing Master that costs incurred were proper and reasonable in all the circumstances. Where there is a dispute between a solicitor and a client with regard to the solicitor's costs or the cost of counsel instructed to represent an individual, what is known as a solicitor and own client bill of costs is taxed before the Taxing Master, that is, the Taxing Master assesses whether it is financially appropriate. At the end of the process a certificate of taxation is issued based on the determination of the Taxing Master and is legally enforceable. There is an appellate procedure to the High Court where matters are not resolved to the satisfaction of either side. At Circuit Court level the taxation of costs is provided by the relevant county registrar.
In parallel to the Taxing Master both the Law Society and the Bar Council have substantial mechanisms in place to deal with complaints of overcharging of clients by solicitors and barristers, respectively. The Law Society's powers in relation to the charging of excessive fees are provided for in section 9 of the Solicitors (Amendment) Act 1994. Where a complaint of overcharging is made to the society by or on behalf of a client of a solicitor, the society is required to investigate the complaint and to take all appropriate steps to resolve the matter by agreement between the parties. The society may, if satisfied that the bill of costs is excessive, direct the solicitor to refund the client without delay or waive the right to recover specified costs.
Section 14B of the 1994 Act, inserted by section 41 of the Civil Law (Miscellaneous Provisions) Act 2008, provides that the issue by a solicitor of a bill of costs that is excessive may constitute misconduct. In more serious cases of overcharging a complaint of misconduct may be referred by the society to the Solicitors Disciplinary Tribunal established under section 16 of the 1994 Act. The tribunal is appointed by the President of the High Court to investigate complaints of misconduct against solicitors. It has limited judicial powers and its function is to establish, by evidence and documents, the facts of a complaint and to decide whether misconduct is proved. Where there is a finding of misconduct, the tribunal can itself impose a sanction on the solicitor, or it may refer its finding and recommendation to the President of the High Court who will decide on the nature of the sanction to be imposed on the solicitor, which can range up to striking the solicitor off the roll.
The Bar Council's complaints scheme is provided for under the Disciplinary Code for the Bar of Ireland. Complaints of misconduct against barristers may be made to and investigated by the Barristers' Professional Conduct Tribunal whose decisions may be appealed to the Barristers' Professional Conduct Appeals Board.
Additional information not given on the floor of the House.
The tribunal is composed of nine members — four barristers and five lay members. The appeals board is composed of five members, three of whom are not lawyers. The board is chaired by a retired judge of the Supreme Court. Where the tribunal upholds a complaint of misconduct against a barrister it may impose one or a combination of disciplinary measures. These may include requiring the repayment of specified fees or ordering the barrister to forego the payment to him or her of specified fees. In the event that fees are not repaid as ordered within a specified time the barrister is suspended from the Law Library until such time as the fees are repaid.
The modernisation of the system of taxation of legal costs I have referred to earlier is among the matters I am providing for in the legal services Bill referred to in the Government's legislative programme. Since the Bill will have substantial implications for the Office of the Legal Services Ombudsman, provided for, among other matters, under legislation of 2009, to oversee the handling by the Law Society and Bar Council of complaints against solicitors and barristers, I have delayed the appointment of a person to that office.
Is it open to the State to appeal to the Taxing Master and, if so, has it ever happened? In the case of a recurring misconduct, which may not necessarily be of a very serious nature, is there provision for the name of the solicitor in question to be published? It would assist people who need to consult a solicitor or barrister to have access to information indicating a profile of continuous complaints against a particular professional.
The Minister's reply indicates that he considers there is sufficient legislative provision in this area and he did not indicate an intention to introduce any type of modification. In most cases where one engages a professional to do a job one can quantify the job and obtain an estimate, but that is not generally the case when it comes to legal fees. In family law cases, for example, it is difficult for people to evaluate legal costs, which may cause great distress at a later date. The ideal is not to go the legal route but rather to find some way of mediating disputes, but this is not always possible. Is the Minister considering any measure to assist people to obtain an accurate estimate of legal costs so there can be some degree of certainty before an action commences?
I thank the Deputy for asking so many questions. The Leas-Cheann Comhairle may not allow me to answer all of them but I will do my best to work my way through. On the first issue, the State can appeal to the Taxing Master but the reality is that the State is not normally in conflict with the Chief State Solicitor's office over a costs issue. However, if, for instance, the State or a State agency instructs private solicitors to represent it for some particular purpose and there is a dispute about fees, the State could take the matter to the Taxing Master. Proceedings before the courts relating to the State or in which the State is involved frequently find their way into the adjudication process of the Taxing Master. For example, if the State is a successful defendant in court proceedings it may get an order for costs against the plaintiff or applicant and may want to recover legal costs. In those circumstances the Taxing Master may adjudicate on the appropriate sum if agreement is not reached on the matter.
In the context of transparency, contrary to the Deputy's perception I do not consider the law as it currently stands in this area satisfactory. It is contained in a variety of legislation some of which goes back to the late 1800s. Some of it is contained in rules of the courts, be it rules of the superior courts or lower courts. We are currently undertaking substantial work on a legal services Bill which I hope will be published during the course of this year and which must be published under the terms of the IMF-EU agreement. Initial work was undertaken by the previous Government on this legislation but I have revisited it and it will be substantially different and more reforming. It will address issues such as legal costs and mechanisms to resolve disputes and it will ensure in so far as it is possible that there is a degree of knowledge on the part of a client of the legal profession as to what costs may be incurred.
In some areas, it is impossible to give an accurate prediction as to what someone's legal costs will be. A provision in section 68 of the Courts Act 1994 requires lawyers to advise clients in advance either of the specific costs they will incur in court proceedings or to set out in detail the factors that would be applicable to calculating costs. One of the great difficulties, be it in family law or other types of litigation, is that a lawyer can rarely accurately predict how many court hearings may be required when people are heading into court or what difficulties may arise in accessing information and documentation. This results in different bills of cost being furnished to different individuals based on the background circumstances of their own proceedings. It is important that we have a modern framework of law in this area and substantial work is being undertaken to provide one.
36 Deputy Dara Calleary asked the Minister for Justice and Equality the progress made to date on the issue of electronic tagging. [11947/11]
Amharc ar fhreagraPart 10 of the Criminal Justice Act 2006 provides for the introduction of electronic monitoring, or tagging as it is also known, in this jurisdiction. My predecessor made the relevant order in 2010 commencing the provisions in the context of a restriction of movement condition applying to the granting of temporary release.
In tandem with the publication of the discussion document on the management of sex offenders in 2009, a project board was set up to examine electronic monitoring, EM. The board recommended that a pilot project be initiated to test EM technology in this jurisdiction and assess its value for money in the management of offenders. This recommendation was accepted and a decision was taken to explore, on a pilot basis, the use of global positioning system, GPS, satellite tracking monitoring technology on a small number of volunteer prisoners.
Following a public tender competition, the Irish Prison Service has tested the use of this technology on 31 prisoners who were given temporary release. The test phase began in August 2010 and ran until Christmas. The group of prisoners involved were carefully selected, having regard to a range of criteria, including the nature of the offence, public safety and overall conduct in prison. I am informed that prisoner compliance was high and only one prisoner was recalled due to a curfew violation. Now that the test has been completed, a comprehensive review of its viability in the management of offenders along with a cost benefit analysis is under way and this process will be completed by the end of September.
The director general of the Prison Service confirmed the Minister's comment that a cost benefit analysis is under way. Is he planning in the context of next year's budget for his Department to submit an Estimate for the roll-out of the scheme, depending on the findings of the cost benefit analysis?
During Question Time on 7 April, the Minister stated that he was anxious to introduce legislation in this regard but there is no commitment to a legislative initiative in this area in the programme for Government. Does he intend to legislate for this in a new Bill or by amending existing legislation?
As the Deputy will be well aware, I cannot anticipate what funding will be available to my Department for 2012. However, as he accurately recalled, this is a useful mechanism to use within the criminal justice system. I am conscious of the pilot project and I am anxious not to prejudge it. In the context of the cost benefit analysis I hope it will be shown to be a beneficial way of dealing with certain types of prisoners within the criminal justice system. It may avoid, for example, the necessity to remand prisoners pending hearings for certain criminal prosecutions. This may provide a way of freeing spaces within our prison system and render it less costly for prisoners to be kept under supervision than under the present system, which requires that they be detained in prison.
It could also be of use in the future to the parole board but I want to see the result of the cost benefit analysis. My enthusiasm for this way of dealing with appropriate prisoners has to be tempered with my capacity to convince my colleagues, in particular, the Minister for Finance, that there are financial benefits and savings to the State in providing this service while improving the criminal justice system and providing for less overcrowding on a temporary basis within our prisons.
37 Deputy Jonathan O’Brien asked the Minister for Justice and Equality if he will provide the exact number of sexual assault cases which may have been endangered by an unregistered nurse working in the sexual assault treatment unit in Letterkenny Hospital, County Donegal; the number of cases the Garda or Director of Public Prosecutions are currently reviewing; the date on which this review will conclude; and if he will make a statement on the matter. [12047/11]
Amharc ar fhreagraI share the concern of Members for the plight of victims who have found themselves caught up in the unfortunate situation referred to in the Deputy's question. I am informed that a person practising as a nurse in the sexual assault treatment unit of Letterkenny General Hospital was removed from the register of An Bord Altranais, the Nursing Board, for non-payment of fees, for an 18-month period from 2009. During this period, the person dealt with 25 victims of alleged sexual abuse. An Garda Síochána and the HSE have contacted the persons affected to inform them of the situation. Both organisations are extremely conscious of the distress this will cause to these persons. I understand that the HSE has put supports and services, including counselling, in place to assist them.
I also understand that an investigation into the matter has been commenced by the serious incident team of the HSE and two independent experts have been appointed. The review will seek to establish the circumstances leading up to, and the reasons a staff member could continue to practice without being actively registered. It will also examine in detail issues relating to professional practice in the sexual assault treatment unit and will make recommendations on measures that need to be put in place to prevent a recurrence of this situation. I am informed by An Garda Síochána that it is liaising closely with the HSE in its investigation. I am also informed that An Garda Síochána is liaising with the Office of the Director of Public Prosecutions in respect of the implications, if any, for ongoing and completed investigations into alleged sexual offences undertaken by the force.
I have been in contact with the Garda Commissioner personally about this matter, and, while, of its nature, it is not possible to give a precise timetable, I am confident that examination of the implications for the investigations will be completed as quickly as possible.
When does the Minister expect to receive the report and its recommendations? If new legislation is required, depending on the outcome of the report, will he give a commitment that it will be brought before the House as soon as possible?
The problem in this area is not a matter of legislation but a matter of procedure with the failure of a nurse to register and the failure of the HSE to have in place a system of checks and balances to ensure the nurse appointed in this instance was registered and dealing with matters relating to her continuing nursing in an appropriate manner. I cannot give a definitive timescale for the report but as soon as it is received, any issues arising out of it will be addressed.
That this difficulty has arisen does not of necessity mean that appropriate prosecutions may be prevented from proceeding. I want to be very careful in what I say not to prejudice the success of a prosecution arising out of an alleged sexual assault.
