Dáil Éireann - Volume 462 - 05 March, 1996

Private Members' Business. - Prosecution of Offences and Punishment of Crimes Bill, 1996: Second Stage (Resumed).

Question again proposed: “That the Bill be now read a Second Time.”

Mr. O'Donoghue: Last week I said that Part IV of the Bill is a well-meaning attempt at reform of the cumbersome procedure in the Criminal Justice Act, 1967, and that it recognised that the system of depositions envisaged by that Act has no place in the late 20th century. Reform of this area of law has already been proposed by Fianna Fáil which published the Criminal Procedure [1405] Bill, 1995. That Bill proposed the abolition of preliminary examination and an immediate remand to the court of trial.

Fianna Fáil is the only party which has published comprehensive proposals to reform the criminal justice system. We published the amendment to the Constitution which we propose, statutory changes to the bail law which we consider necessary and the new procedures we would see operating. We await proposals from other parties. We know the Labour Party is against the referendum but it has articulated no other policy. One might ask if it has a policy. Is the Labour Party so beset by questions of political strategy that it has not found time to develop a criminal justice policy? Perhaps Deputy Costello speaks for the party in this area. Do his concerns and those of some of his colleagues extend to the victims of crime?

Section 14 proposes serious modifications of the right to silence. In my address to the Fianna Fáil Árd Fheis I called for a public debate on this much misunderstood topic. The right to silence has two distinct purposes. It prevents a jury from drawing any adverse inference from an accused person's failure to comment when arrested or questioned by a garda. It also prevents a jury from drawing any adverse inference from an accused person's failure to give evidence at a trial. It must be remembered that the right to silence developed during an age when it was one of the few effective defences open to an accused person and when an accused person was not entitled to speak in his own defence. Few people realise that it is in relatively recent times that an accused person is permitted to give or call evidence in his own defence. The right to silence was allowed when accused persons were not entitled to legal aid or any other form of constitutional fairness guaranteed by our Constitution. Its place in our legal system must now be examined and that is one of the reasons I called for a public debate last November. I hope this section will encourage that debate but it cannot take place on a simplistic level.

[1406] The right to silence has an international dimension. The two principal international human rights instruments to which Ireland is a party — the European Convention on Human Rights, by virtue of Article 60 subsection (2), and the United Nations Convention on Civil and Political Rights, by virtue of Article 14 subsection (2) — contain provisions guaranteeing the rights of persons charged with criminal offences to be presumed innocent until proved guilty according to law.

The report of the Government advisory committee on fraud published in December 1992 stated that the right to silence, or more generally, the privilege against self incrimination, may in certain circumstances be merely an aspect of the rule that the burden is on the person who alleges the crime to prove it and that if the right to silence is to be modified and if the State is to remain faithful to its international obligations, care must be taken to ensure that the right to be presumed innocent until proven guilty beyond reasonable doubt is not undermined. I have grave reservations as to whether section 14, as drafted, meets our international obligations. However, I hope when addressing this section the Minister will indicate Government policy on this topic.

I would also welcome any information the Minister has on the operation over the past decade of sections 18 and 19 of the Criminal Justice Act, 1984, which provide that where a person is arrested without warrant for an offence and on being asked fails or refuses to account for his or her presence at a location or for the presence of suspicious objects, substances or marks. inferences may be drawn from this in any criminal proceedings to the extent of corroborating other material evidence. A person may not, however, be convicted solely on the basis of any such inference. Alterations to the right to silence should occur only after informed public debate and in the context of our international obligations. I again call for that debate and I hope on this occasion my call will be heard.

[1407] Part VII seeks to achieve the same effect as Part III of my recently introduced Misuse of Drugs Bill. It seeks to provide information to the public about the operations of temporary release. I cannot see what objection the Minister could have to accepting this.

The provision about which I am most concerned is in section 4 which permits the Taoiseach to make regulations effectively expanding the function of the Office of the Director of Public Prosecutions. It would require an expansion of the staffing of the DPP's office without necessarily achieving a reduction in State expense elsewhere. The Office of the DPP has generally functioned well in the manner in which it was intended — it is there to direct prosecutions. Those prosecutions are best conducted by persons with actual court experience — solicitors or counsel. A blurring of that distinction so that the director or his staff conduct prosecutions would not be in the public interest.

It was envisaged when the Act was passed that the Office of the DPP would act in much the same way as the Office of the Attorney General. Policy decisions would be taken by the attorney or director and implemented by appropriate lawyers. In rural areas the proposed change could result in one firm of solicitors being retained by the State and another by the director. Nobody could be of the view that an increase in the number of lawyers would result in a reduction in costs. At present solicitors employed in the Chief State Solicitor's office may be assigned to a number of different tasks on behalf of the State or the director as the need arises. The same solicitor appearing in the same court is in a position to conduct prosecutions on behalf of the DPP and any other State agency. The proposal in this Bill would result in unnecessary duplication of staff without any obvious advantage.

The function of directing prosecutions is an onerous one. The implementation of decisions to prosecute is best left in the hands of persons with [1408] experience in the conduct of cases. The Chief State Solicitor and State solicitors throughout the country have served us well. It would be the height of folly to transfer part of their function to an office established to make policy decisions on criminal cases. Once a policy decision is made it must be implemented by a lawyer, and the fewer lawyers operating, the less is the cost. The present system is an example of versatility and efficiency and no coherent call for change has been established.

The Government has a lamentable record in introducing criminal justice legislation. At least part of the blame must lie at the feet of those members of the Cabinet who have chosen to exercise a veto on progress — the Tánaiste is the leader of that group. Is it too much to hope that he and the Minister for Social Welfare, Deputy De Rossa, will tell us their policy for reform of the criminal justice system? It appears the Minister for Social Welfare is very strong on criticism but very short of ideas. Can he tell us his party's policies for reform, or is the phone line to Moscow down? The Minister seems well capable of making announcements and seeking advertisements in certain publications on other matters. I wonder do his powers of communication stretch to telling us his party's policy on criminal justice. The difficulty is that many people do not buy Forum magazine. The Minister for Social Welfare should outline in the public arena his precise policies on criminal law reform.

Mr. Ring: I welcome the opportunity to contribute to this debate. As a Deputy from a rural area, and having held political meetings in my constituency in recent weeks, I am aware of the perception that the law is not on the side of those with power — the Garda Síochána — but of criminals. In the west there has been a great tradition of protecting our old people. When people went to bed at night they did not have to worry about crime and the Garda Síochána was there to protect them. [1409] Rural Garda stations were open and law and order was upheld.

As a new Deputy, I am amused at the number of Bills introduced by the Opposition. One would think the people on the other side were never in Government and that there was never a Minister for Justice from that side of the House. When I heard Deputy O'Donnell attacking the Minister for Justice I thought the Minister was judge and jury, who could convict and fine, who is aware of every crime committed and has the answer to every question. I am not a solicitor but I believe that law and order is about protecting people. A person who commits a crime should pay the penalty and should not get out on bail. Members on all sides of the House believe that we must be very careful not to put innocent people behind bars. I do not want to see innocent people behind bars, but as a rural Deputy I want to prevent people from Dublin travelling to the west in high powered cars to attack elderly people.

A few weeks ago RTÉ reported on a court case in Dublin and I watched with amazement as people convicted of crime put up their two fingers and spat at the interviewer. They had no respect for law and order. The people believe that a person who commits crime should pay for it. I am not saying that we should hold innocent people in prison for six, 12 or 15 months until their trial is heard, but known criminals are getting out on bail. There is a perception that in some cases solicitors are aware that the person they are defending is guilty. It is their job to defend people and they are well paid to do so, but at the end of the day it is our job as legislators to protect those who obey the law. It annoys me that people are arrested for having no tax or for being slightly over the drink-driving limit. That is not what law and order is about. It is about apprehending those who commit serious crime. I accept that 95 per cent of people obey the law, but the remaining 5 per cent who constantly commit crime are making life miserable for others.

[1410] I welcome the fact that Opposition parties introduce Bills, but many of those Members particularly the previous speakers, had an opportunity in the past seven or eight years to bring in legislation in this area. People who pay their taxes are annoyed that the criminal is protected rather than the victim. The best way to protect people is to make those who commit crime pay. The Government will be introducing a Bill in this regard, and the sooner the better because the people will no longer tolerate the present position. Those who commit serious crime should pay for it. For too long criminals have been driving from Dublin in high powered cars to the west to attack elderly people. A lady who rang me recently said that she goes to bed in daylight and gets up in daylight because of her fear of criminals. Elderly people should be happy in the knowledge that they are protected by the State.

The policy of previous Government of transferring gardaí from rural areas to densely populated centres has not worked. Governments should admit when they make a mistake, and that was a mistake. Gardaí should live in the areas in which they work. There should be a return to the position when, in the west at least, there was a sergeant and two or three gardaí in every village. At that time if a strange vehicle or person came into the area the gardaí were aware of it and the local people had confidence in the Garda.

A few years ago a very serious crime was committed in my constituency but, though there were 22 or 23 gardaí in the local town, the people did not know them. The Garda will not be given the information they require in confidence when people do not know who they are. Legislation should be introduced to deal with criminals. It is easy to prosecute publicans or motorists for speeding, but it is not as easy to prosecute those we should target, the people involved in serious crime.

Mr. Broughan: I share the sentiments vigorously expressed by my colleague, [1411] Deputy Ring. I met a person in my constituency of Dublin North East whose 1993 car was stolen the other night and was found three or four miles away, hopelessly vandalised and a write-off. That person's family was distraught as that was the second or third occasion a car had been stolen on their road in recent months.

I am unhappy about the number of gardaí deployed in my constituency, which has a population of approximately 85,000. Fewer than 200 gardaí are assigned to the Garda stations in Coolock, Raheny and Howth. Those gardaí are expected to police a very large territory. They do so heroically day and night and have been successful in stabilising and reducing the overall level of crime in some Garda districts. The resources available to the Garda are insufficient. I share the sentiments expressed by many rural Deputies faced with a similar problem following the closure of rural Garda stations which results in a small number of officers policing large territories. Additional Garda must be deployed.

I congratulate Deputies O'Donnell and Michael McDowell for their lengthy work on this Bill. It contains useful proposals which I fully endorse. However, overall, it lacks coherence and some of the proposals are somewhat bizarre. The Bill has been devalued to some extent by the tone and content of the debate last week. In particular, Deputy O'Donoghue's contribution was outrageous and warrants a strong response. During recent months Deputy O'Donoghue and the Fianna Fáil Party in general have sought to make political capital out of the crime issue, largely at the expense of the Minister for Justice. Last week the target of the attack extended to include my party leader, the Tánaiste, and one of his advisers, Mr. Fergus Finlay, who appears to have acquired mythical status within the ranks of Fianna Fáil since the collapse of the previous Government. At times that party [1412] appears to be more interested in opposing Mr. Finlay than the Government. That is a sad indictment of Fianna Fáil. Crime is a serious issue, but members of Fianna Fáil do not appear to be able to resist the inclination to stick their tongues out at Fergus Finlay.

At least Fianna Fáil is consistent. It has sought to address the crime issue with only one thing in mind, political aggrandisement. It forgets that the Minister has been in power for just under 18 months. If there are problems — and in my view there are considerable ones — in the Department of Justice, Fianna Fáil which held the justice portfolio for almost seven consecutive years is directly culpable for the present crisis and no amount of political posturing by Deputy O'Donoghue will change that. The Government and local authorities have sought to address problems associated with factors that have given rise to the drugs problem and the level of crime. Interest was not expressed by Fianna Fáil when in Government for that lengthy period in areas such as estate management or social housing reform. It was left to recent Ministers to address those issues, given that many large housing estates were built without the necessary social infrastructure.

Deputy O'Donoghue drew attention to the complex issue of bail dealt with in sections 7 and 8. It demands a fundamental examination of the competing rights of an individual to liberty while not convicted of an offence and the rights of the community at large to be protected from individuals likely to commit an offence. I am aware the Minister for Justice will shortly announce the Government's proposals in this area and they will be all the better for the extensive deliberations that have taken place. If the issue were simple, I am sure Deputy Owen's predecessors would have addressed it long ago. Rather than taking action on the matter the former Minister for Justice, Deputy Geoghegan-Quinn, referred it to the Law Reform Commission but did not ask it to make recommendations.

[1413] While Deputy O'Donoghue was prepared to grant the previous Minister, Deputy Geoghegan-Quinn, time to consider the merits of bail reform he has constantly harassed this Minister since she came into office. In recent years, even during partnership Governments, Deputy O'Donoghue had ample time and opportunity to raise these important matters.

Ironically, Deputy O'Donoghue cites the Tánaiste as attempting to stifle any political debate on the bail issue, but in the same contribution he produced an article written by the Tánaiste and published in The Kerryman. If I were in the business of stifling public debate, writing a newspaper article would not be the way I would go about it. The article is in the Tánaiste's name, not that of Mr. Fergus Finlay. In it the Tánaiste raised a number of questions about bail reform. Deputy O'Donoghue is aware that there are legitimate questions on that issue and he has raised many of them. Some of them are addressed in the Bill. However, changes in our bail laws that do not require a referendum are not on Deputy O'Donoghue's agenda. Having crudely jumped on the bandwagon of demanding major changes to deal with the crime issue in recent months, he now requires a referendum to justify his scaremongering. It is Deputy O'Donoghue who has attempted to stifle debate on the issue of crime. He has constantly projected it as a simple one of criminal justice reform. He refuses to care about many of the underlying causes that have contributed greatly to the problem of crime. For example, in Dublin up to 80 per cent of crime is drug-related and concentrated in areas of great deprivation.

During the past 15 to 20 years Fianna Fáil's performance has been one of hypocrisy. That party which calls for increased resources for the Garda and prison service is simultaneously advocating a general economic policy that requires massive cuts in public expenditure. When addressing the institute of directors before Christmas Deputy Ahern called for significant cuts in the [1414] social welfare budget. That is something to which I will repeatedly draw attention in the months ahead. If Fianna Fáil wants to slash public spending in the areas of social welfare, education, health and Garda and prison service resources, it is hypocritical for it to seek major reforms.

In contrast, the Government's strategy in these areas has been more holistic. Drugs have been correctly identified as a major contributor to our crime problem. Recent presentations by Ministers Owen, Bhreathnach and Noonan dealt coherently with the major community response needed in the drugs area. They referred to measures to prevent the supply of drugs and announced a liaison policy between the Garda and Revenue to put the drug barons behind bars for long periods. That is where they deserve to be and should have been in recent years. This will be achieved by identifying the drug barons and, if necessary, using some of the information collected by Revenue as evidence in court. A programme of treatment measures, particularly targeted at rehabilitating drug abusers who express a wish to come off drugs, is required. At long last the Government is investing significant resources in education to encourage young people not to go down the road of drug abuse.

The Government approach, announced last month, seeks to address the matter of educating people on drug abuse generally and the treatment of addicts within the State and voluntary sectors.

The budgetary proposals to tackle the problems of long-term unemployment along with the commitment of the Department of the Environment to the concept of estate management will be helpful in strengthening community resistance to the abuse of drugs. While there is room for considerable progress on the part of all Government Departments in countering this horrific problem afflicting Dublin city inhabitants in particular, I am pleased the Government has made a significant start.

[1415] Members of the Progressive Democrats have a somewhat blinkered approach to criminal justice reform since they, like many parties of the extreme right, appear to take the view that all public expenditure, with the exception of that on crime detection, is bad; the old adage “a stitch in time saves nine” does not appear to be part of their thinking.

While the Minister has said she will not be accepting this Bill, she has indicated she will incorporate some of its provisions in her Bill. I welcome Deputy O'Donnell's general proposals on a unified prosecution service. On at least four occasions when the Accounting Officer of the Office of the Director of Public Prosecutions appeared before members of the Committee of Public Accounts, we were appalled at the dearth of statistical information available on different types of crime, the lack of urgency in bringing forward prosecutions, the appalling lack of speed on the part of the prosecution service, giving the general impression of its being an early 19th century service working for a late 20th century State.

Many of the problems identified by the Committee of Public Accounts in relation to the Office of the Attorney General were further highlighted on the collapse of the last Government. The proposals of Deputy O'Donnell and others in relation to inter-office business between the Office of the Director of Public Prosecutions and that of the Chief State solicitor are commendable and worthy of serious consideration. I also welcome the suggestion of an annual report being submitted to the Houses of the Oireachtas, in addition to requesting the appearance of the Director of Public Prosecutions before committees of the House, if necessary, the Committee of Public Accounts, to allow Members examine the overall performance of his office and whether crime nationwide is being dealt with effectively and efficiently.

I commend Deputy O'Donnell on the provisions of sections 5 and 6 of her Bill. [1416] With my Labour Party colleagues I paid a visit to Mountjoy Prison before Christmas and we were horrified to witness many of the problems already reported to us, giving greater credence the the adage “seeing is believing”, in particular the extent of the drugs problem there, its massive overcrowding, its total inability to rehabilitate and/or prevent prisoners from recidivism and long-term crime. At the end of our discussions there my colleagues and I were not entirely happy with some of Governor Lonergan's views. Given that previous Governments — including those in which my party participated — gave clear directions to prison governors to establish drug-free units, it is most disappointing that only now, on the instructions of the Minister for Justice, is the creation of a drugs-free unit being contemplated.

As one of my colleagues on Dublin City Council said recently the tragic position in Mountjoy Prison is that people who may have entered there drug-free emerge drug addicts, an appalling indictment of our prison system which must cease forthwith.

I welcome the provisions of Deputy O'Donnell's Bill vis-á-vis a coherent prisons service dealt with in sections 22 to 30, inclusive — the concept of a three-year assessment of prison space, following the recommendations of the Whitaker report on the governance of prisons and the appointment of an inspector of prisons who would report continuously. All of those are valuable suggestions I hope the Minister will take on board when drafting her Bill. The appointments of a director and inspector of prisons appear to me to warrant further consideration.

The sections of the Bill dealing with bail represent a positive contribution to that debate, to which Deputy O'Donoghue, in particular, might well pay heed. While aware that the Minister questioned the constitutionality of such measures, I disagree with her that it is questionable whether we should seek to divert punishment onto a person who stands bail for another. However, in [1417] many cases it will be the person who stands bail for another who will be best placed to judge whether that individual is likely to commit an offence resulting in their money being estreated, in which case they might not agree to stand bail in the first place.

A number of my colleagues with a legal background have urged that we re-examine the matter of consecutive or harsh sentencing in relation to crimes committed while on bail. Since those sections of this Bill dealing with bail represent a positive contribution the Minister and Deputy O'Donoghue would be well advised to re-examine them.

I agree with the Minister's attitude to the proposals vis-á-vis the right to silence in this Bill. Since these constitute a fundamental change in the law requiring considerable consideration and discussion it is not possible to incorporate them within the confines of this debate. No doubt Deputy O'Donoghue will endorse these sentiments, having placed his desire for public debate on these issues on the record last week.

While I am in broad agreement with the provisions of section 31, on a technical point, if a pardon is granted in respect of an offence which is deemed never to have been committed, it ceases to be a pardon in the strict sense of the word. Having sought to transfer responsibilities to the prison service for all functions in relation to custodial sentences in section 34, I fail to understand the reason for the Minister being brought into the fray or why this function could not have been left to the new director of prisons and his inspectorate.

While many of the provisions of the Bill are laudable, they attempt to do too much in too many diffuse areas and, given that the Minister has expressed her plans and intention to introduce further legislation, I regret I cannot support it.

Mr. Kenneally: With the permission of the Chair I should like to share my time with Deputy Quill.

[1418] An Ceann Comhairle: I am sure that is satisfactory and agreed. Agreed.

Mr. Kenneally: Never has there been a greater demand on our Legislature to take positive action to combat the rash of lawlessness manifested on our streets in recent years. The electorate is crying our for some visible sign that the Legislature is facing up to the threats stalking our streets, yet the Government has been singularly silent on this matter. Furthermore, the Minister has been frozen in inactivity. Despite constant urgings of the Opposition parties since assuming office, she has been embarrassingly static in her approach to crime. We have listened to her proposals but they have not been followed by action. Indeed, those measures she has implemented have constituted a miserable response to a crisis of alarming proportions.

I now realise that that pathetic response is not all of the Minister's making, that her requests for funding at the Cabinet table fall on deaf ears, or are brushed aside as the parties of the left scrabble and scrounge for every spare penny to shore up their personal egos and images as parties of the people. By denying the Minister and her Department their rightful share of the financial benefits of the present boom, they have deprived women the right to walk our streets at night without being molested, the right of the old and alone to a carefree night's sleep and that of our entire population to proper protection.

There is encapsulated in this Bill a positive step to provide the kind of security our electorate not only demands but has a right to expect, which is why I welcome it. I see it as an opportunity for the Minister to implement some of the policies we know she favours but which she is prevented from doing by pressure from the junior partners in Cabinet. I note that Deputy Flanagan, chairman of the Select Committee on Legislation and Security, has reservations about the kinds of measures the Minister wishes [1419] to implement. He says that legislative changes must not trample on the fundamental liberties of the citizen. However, I remind him that there is no more fundamental right than the right to life, the right not to be attacked, assaulted or murdered; the right to walk the streets of the capital in broad daylight and the right to feel safe and secure in one's home at night. These are the things that worry our citizens and if Deputy Flanagan does not realise that this is uppermost in their minds, he is out of touch with them.

I welcome many of the provisions of the Bill, not least those in sections 4, 5 and 6 which reach into the jurisdiction of the Chief State Solicitor, the Attorney General and the Director of Public Prosecutions. It is long past time for the interaction of the separate elements of our justice system to be streamlined and duplication or unnecessary bureaucracy eliminated. There is more than enough paper being generated between these offices already and any measure that reduces it is welcomed. As we know, the transfer of papers and exchange of documents makes for a slower system in a part of our public administration which is far too slow already. We should cut the red tape, eliminate duplication and make the system work swiftly and efficiently.

The provisions of section 6 will allow this House to require the Director of Public Prosecutions to come before its committees as a capable and compellable witness. Even at the remove of several months, I consider the failure of the Director of Public Prosecutions to come before the Oireachtas as a slight on Parliament. That he should freely go on a radio programme subsequently to answer the questions which Members were prevented from putting to him in a democratic forum is still fresh in my mind and I can conceive of no adequate explanation for what I consider a discourtesy to this House and its Members.

I agree that individual cases should not be discussed in the public domain, [1420] but all public servants must be accountable in some public forum to the elected representatives of the people and that goes for the Director of Public Prosecutions as well. He has a high profile office with an onerous duty and responsibility to the people. He must be seen also to be open to scrutiny. A Government which launched itself on a tidal wave of good intentions, not the least of which was a commitment to openness, transparency and accountability, will have no difficulty in understanding that principle or accepting that measure.

I was less than happy with the reception I received when I raised a case recently with the office of the Director of Public Prosecutions. The attitude with which my queries were greeted left much to be desired and the persons on whose behalf I inquired, less than satisfied. To be unco-operative is one thing, but to be positively unhelpful is unpardonable and I have yet to be satisfied with the quality of the service which the interested party and I received. The young man to whom I refer was subsequently proven to be totally innocent of any wrongdoing. He ended up brain damaged. The perpetrator in this action got a suspended sentence and there was a suggestion that he was told before the case came to court that he would not end up in jail. This individual and his parents must live with this life sentence for the rest of their lives. They contacted the office of the Director of Public Prosecutions but got no satisfaction. There are many who know the facts of this case and the terrible thing is that justice has not been seen to be done.

An Ceann Comhairle: It is a long standing convention of this House that public officials should not be reflected upon. They are not Members and have no redress against accusations made in this privileged assembly. I very much wish that the Deputy would refrain from commenting adversely on personalities such as the public prosecutor, the Attorney General and so forth. I am [1421] sure the Deputy will understand my ruling in this matter.

Mr. Kenneally: I accept the Chair's ruling but I was referring only to the office of the Director of Public Prosecutions in the context of this Bill.

In another case the family did not receive a sympathetic hearing from the Office of the Director of Public Prosecutions and in the light of that perhaps an appeals mechanism should be put in place. One person may decide what is right or wrong but another may take a different interpretation of it. Something needs to be done and the Director of Public Prosecutions should be accountable to this House through the Taoiseach, who has responsibility for the office of the Attorney General, or failing that to a committee of the Oireachtas.

The Minister need not be reminded that she had hardly warmed her ministerial chair before she declared publicly that she proposed to hold a referendum on the bail laws. After 30 years or more of worsening crime levels it was hardly before time to do so but, as we know, that good idea was hit on the head, if you will pardon the phrase, and her proposal has not found merit with the Cabinet since then. In fairness, Deputy O'Donoghue and I have said that the Minister would have introduced a referendum on bail if it had been left to her.

It was interesting to hear the two previous speakers from the Government parties. Deputy Ring, Fine Gael, is in favour of a referendum on bail whereas Deputy Broughan, of the Labour Party is not, which is symptomatic of what is happening in Government. I would like the question of the bail to be put to the people, but in the absence of that I support the proposals before us, which have been drafted within the confines of the constititional position.

If we are not willing or able to confine a person who has been charged with serious crime to a place where he can be properly monitored then I see nothing wrong with requiring him to find someone who will guarantee his behaviour [1422] until his trial. Under this Bill that is what he is required to do and this can hardly be considered an unfair restriction of his movements. The possibility of the forfeiture of bail for a serious breach of the regulations — the commission of an indictable offence — will concentrate the bailsman's mind on the possible problems ahead and cause the necessary precautions to be taken. Section 10 provides for a sliding scale of bail and the relevant amounts are realistic. Because of the amounts specified, there is less likelihood that a person will finance his own bail, which would be a negation of the intent of the system. Section 12 is a common-sense updating of the situation in regard to taking depositions and is very likely to streamline the system of justice in that regard.

I realise that the provisions of section 16 are a major departure from the principles within which we work. The right to silence has been a basic tenet of our justice system since the foundation of the State but I have reluctantly come to the conclusion that we may have to forfeit this if we are to have an effective criminal system.

We have seen how known criminals have been able to frustrate the law by keeping silent for the duration of their arrest and, as defendant, declining to enter the witness box in court. For a system of justice to survive and to command the respect of the public at large, it cannot be brought into disrepute by criminals who can use it to protect them from the consequences of their criminal activities. I do not lightly advocate the elimination of this right, but the broader society and we as the Legislature must react to the conditions prevailing and protect our people.

We have not sufficiently availed of the advances in science to assist both the administration of justice and the conviction of criminals. For instance, we do not yet have provision for the use of tape recorders for taking depositions, a deficiency which will be rectified by section 12 if it is accepted by Government. Everyone saw the benefit of such [1423] basic machines decades ago yet it is only now we are approving their use. No wonder there is a huge backlog in our courts. I shudder to think what will happen when computers will get official sanction.

Section 17 provides for the taking of forensic samples from the person to help in identification and as a means of prosecution. This does not go far enough. With proper safeguards the technology is now available to have murderers and rapists in custody with good evidence in a relatively short time. I will expand on this at a later stage, but time does not allow it now. I wholeheartedly agree with the thrust of this section and would hope to see more use of readily available technology in the near future for a variety of purposes.

I also endorse the provisions for minimum sentences to be applied, consecutive sentences where appropriate, and the right to have this remedy brought to the attention of the court at the time of sentencing.

It is extraordinary that section 19 should be put into any legislation. All it is doing is reminding everybody what is contained in section 11 of the Criminal Justice Act, 1984. That section requires that consecutive sentences be given to criminals who are convicted of crimes committed while on bail. That is not happening. I know from reading the weekly court reports in my local newspaper — I am sure every Member has the same experience — that practically every sentence handed down is a concurrent sentence. I cannot recall the last time I read a report where the judge handed down consecutive sentences. The Law Reform Commission recognised this difficulty and said that shortly after the introduction of the 1984 legislation there was a prevalence of cases where consecutive sentences were handed down but that is not the case now. I wonder whether judges need a refresher course to remind them that provisions for consecutive sentences are set out in legislation.

[1424] There is some merit in suspended sentencing, particularly for a first time offender, in that a sentence will be hanging over them; in the event of their committing another offence the suspended sentence will be reinstated. The suspended sentence is overused, particularly in regard to habitual offenders. We read constantly of judges giving suspended sentences in cases of known criminals. Perhaps there is reason for that which is tied into the early release system. I would have some reservations about the early release system. It should only be used for good behaviour. There must be some incentive for prisoners to be released earlier, otherwise they may as well be disruptive during their entire time in prison, but I believe the system is being abused.

Section 21 deals with mandatory life sentencing and recommends that a minimum period be put forward by a judge. That is a sensible section. Why do we have a life sentence when it does not mean a a life sentence? Why is a person sent to jail for 20 years when it does not mean 20 years? If a court was able to give a recommendation for a minimum period, at least they should serve most of their sentence.

At last the onus for providing a proper and adequate prison system is being imposed on the Minister. Had that provision existed previously she might have been able to make a better and more effective fight for funds for necessary improvements to the system. Proper use must be made of our prison spaces and the appropriate categories housed in the appropriate prisons. There is little point in housing low-risk prisoners in high security prisons and there is scope for the greater use of low security institutions.

On the other hand, where prisoners have been convicted of assaults of a particularly violent or sexual nature then the full rigors of the law must be brought to bear. How else can we as legislators look into the battered faces or the broken bodies of the frail and elderly and say we are doing our job? If [1425] that puts me in the category of a “lockem up and throw away the key” man, then so be it. I know to whom I owe a duty of care and I intend to discharge it without flinching.

I have no difficulty in according my support to this measure.

Miss Quill: I am pleased the Minister is in the House to hear what is being said about this Bill, which is well thought out, simple and practical with finely targeted recommendations. I am grateful for the support given to this Bill from all sides of the House. I listened to the contribution of the last Labour speaker, Deputy Broughan, who was most constructive and positive in his assessment of the provisions of this Bill, as was Deputy Kenneally. To date, the response from all sides of the House has been positive and constructive and the speakers have been very much in agreement with what is proposed in the Bill.

It is ironic that at 8.30 p.m. tomorrow, despite all that has been said and the approval that has been given, Government Members will vote down this Bill. That should not happen. I appeal to the Minister this evening not to vote down this Bill on the floor of this House but rather to take the recommendations and the provisions of the Bill and to implement them in conjunction with legislation which she is proposing, much of which centres on the same areas of crime.

I welcome the Bill she has proposed to the House this afternoon which my party and I will support without hesitation or reservation. The business of tackling our outdated criminal justice system is of such paramount importance that party politics must not be played with that issue. Parties must combine, take from one another the best ideals and recommendations available, incorporate them into law and have that law implemented as quickly as possible. Time is not on our side. The position is worsening week after week, month after month.

Our criminal justice system is creaking at the hinges and our response to [1426] date has been too little too late. When a Bill of this nature is brought before the House it is not done lightly. This is a well framed set of legislative proposals. It would do a great deal of credit to the Government and the Minister if these proposals were taken on board and if the Bill was not voted down. I make a final appeal to the Minister not to vote down the Bill tomorrow night. By so doing we are only drawing the anger of the public on us and generating a degree of public cynicism that does not do any of us any good.

The Bill seeks to put in place a set of practical measures which, if adopted, would make a difference. For example, it proposes radical new measures to streamline and speed up State prosecutions. These measures are long overdue. One of the most unsatisfactory features of our system is the amount of time that is allowed to elapse between the apprehension of a suspect and the securing of a conviction. That delay that our system permits is corrosive of public confidence in the judicial system. It helps to tilt the balance between the rights of the victim of crime and the rights of the perpetrator of crime in favour of the latter. Nothing is as subversive of public confidence as the spectacle of a victim waiting for months, and sometimes years, to hear what has happened, knowing that the gardaí have apprehended somebody, have made a charge and are working towards a conviction. Very often nothing is heard. That undermines their confidence in the way justice is dispensed. Anything that helps to speed up the process, to streamline present practices and procedures and which makes the delivery of that element of our justice system more efficient has to be implemented without delay. That is the main section of the Bill. I ask the Minister to give it serious consideration and to take it on board. Our recommendations are new and, so far as I am aware, do not exist in recent legislation. If implemented they would serve to make our system more efficient. I do not understand the reason the Minister objects to putting these [1427] procedures into practice. I appeal to her to consider taking on board these well thought out measures because the average citizen is of the view that in the majority of cases our system of justice allows the criminal to go unpunished while the victim is uncompensated. Governments have the nerve to call that a system of justice but it is not the way the average citizen views the system as it currently operates.

To illustrate my point I will give a simple example from every day life in contemporary Ireland. I call this a tale of two citizens. Citizen A is an elderly widowed lady living on her own and citizen B is a young, able-bodied adult living elsewhere. Citizen B forcibly enters the home of citizen A. Citizen A is terrorised but, in the manner of her generation, she struggles to protect her property and her purse. Citizen B punches the elderly lady, knocks her to the ground, kicks her senseless, finally locates her purse and makes off with the money leaving citizen A shell-shocked and writhing with pain on the floor. What happens after such an episode? If citizen A is lucky, an ambulance arrives to take her to hospital. That old lady is expected to pay a £40 call out fee. When she arrives at the hospital she is expected to pay for all the treatment necessitated by the injuries inflicted on her by citizen B. She has to carry the cost of damage done to her person, her property and her purse.

What happens to the intruder in such circumstances? In far too many cases the State hears no more of him but if citizen B is apprehended and brought before the courts, he applies for and is given free legal aid. The State must incur the cost of any transaction that ensues. That is the imbalance I seek to illustrate. The victim endures all the pain, incurs all the costs and, in the majority of cases, does not receive any compensation while the perpetrator has access to free legal aid and becomes a guest of the nation for a period. That happens on a daily basis in every village, town and city of this country.

[1428] In this year's budget there was an increase in the allocation to the free legal aid scheme. I welcome the increase in the allocation with regard to civil cases but I am greatly concerned about the extent of free legal aid being made available to the type of gentlemen whose activities I have described. If our citizens were asked a question by way of referendum as to how they would like to see their money being spent, I know the answer they would give.

The Minister must seriously examine the compensation scheme currently in operation because if we are to reclaim some degree of public respect for the criminal justice system, we must strike a fairer balance between the rights of the victim and that of the criminal.

My party was accused recently of calling for more gardaí, and certain people sought to highlight a contradiction between that call and our desire to to keep the public service bill in order. We are not calling for more gardaí per se but additional gardaí on our streets and on citizen protection and crime prevention duties. In that regard I wish to draw a particular court practice to the Minister's attention in the hope that she will tackle the problem. Every day in our courts one can see lines of gardaí waiting to be called to give evidence, many of whom spend the entire day there without their cases being called. I regard that as criminal waste of Garda time. Other countries with systems similar to our own do not have that type of court procedure. I ask the Minister to consider this matter with a view to adopting the practice followed in the London metropolitan area whereby a special court officer assembles all the evidence and presents the cases in court on behalf of his colleagues. If that practice were followed here, more gardaí would be available to protect our citizens and prevent crime. Once a crime is committed, the cost to the State is enormous.

The issue of bail, which is a great scandal, is intelligently addressed in the Bill although we fall short of calling for a constitutional referendum. We are seeking to put in place a system [1429] whereby it would be much more difficult for a criminal to get bail. If somebody is foolish enough to put up bail on behalf of a habitual criminal, they deserve to forfeit that money. I appeal to the Minister to accept our recommendations in regard to bail while encouraging her to follow her instincts and frame a referendum to deal with the issue of bail in its totality.

Before the question of holding a referendum can be considered, the Minister will have to provide a greatly increased number of prison spaces. This country needs a remand prison and, if we are serious about our criminal justice system, we must find the ways and means of putting such a prison in place. Why can the private sector not be requested to build a remand prison which could then be leased back to the State? That could be done without excessive capital cost.

I ask the Minister not to vote down this Bill tomorrow evening. She will earn the respect of this House and of our citizens if she takes on board the measures proposed in the Bill and incorporates them in her proposed legislation. The Minister still has time to do that.

Mr. Sargent: Ba mhaith lom ar dtús báire a rá go bhful mé ag roinnt mo chuid áma leis na Teachta Eric Byrne.

An Ceann Comhairle: Sílim go bhfuil sé sinn aontaithe.

Mr. Sargent: Go raibh míle maith agat.

I thank Deputy O'Donnell for her work in preparing this substantial Bill. It is welcome because it has instigated a long overdue debate. Interest in this issue became slack. Expectations were raised that the bail issue would be dealt with in last November's referendum but when that did not happen, people wondered what the Government was planning and when its plans might come to fruition. We still have not heard these [1430] plans but the Minister has talked about devising proposals to reform the bail laws. I urge her to do a little more than that because there is a great deal of frustration about bail particularly among members of the Garda and the general public.

I do not have a legal background. However, like every TD, I come up against the injustices of the system and encounter crime, which is pervading every area of life. I know many members of the Garda Síochána. Before the foundation of this State, some of my family were members of the RIC and were stationed in Gurteen in County Tyrone and Santry in north Dublin. Some of them had to work with the occupational hazard of having the rank of sergeant and the surname “Sargent”. It was one of the more humorous sides of the job.

I have several problems with the Progressive Democrats case. The crusade to privatise can sometimes be like a runaway train and there is a risk in this case that it may be a short-term solution to what is ultimately a serious social problem. I am not happy to go along with that proposal.

On the other hand, the Government's line is more worrying. It said this Bill pre-empts proposals and is like a curate's egg. It is the usual response to something with which it does not yet want to deal. Its bail proposals sound vague, especially in light of statements made in the past. To that end, I sympathise with the frustration expressed by the Progressive Democrats; it is well founded.

A report on the examination of the bail laws by the Law Reform Commission was made public in September last year. It was to be a watershed in helping us to come to terms with the shortcomings of our bail laws. However, its assessment resulted in as much controversy as did its proposed solutions. The Minister for Justice at the time, Deputy Geoghegan-Quinn, said that, with Government approval, she had requested the then Attorney General, Harry Whelehan, to secure the [1431] advice of the Law Reform Commission on the options that might be open to change the bail laws. Expectations were raised that we would at least have the framework of legislation or proposals for constitutional change in this area. However, they were seriously dashed when we saw the report. It examined the current state of play in various parts of the world. While this may be interesting and gives a good background knowledge, it was not directed to our problems.

The Minister tried to avoid getting into a quandry by drawing our attention to the referendum. Hopes were raised that this would be a way of dealing with the problem but they were dashed as well. We are dealing with a long litany of PR tactics which has left the public and the Garda Síochána reeling with frustration at the lack of commitment from the Government in this area, although it may deny this once it publishes its proposals.

There is a detected rate of 4,000 crimes committed by persons while on bail — the Garda would say the figure is even higher than that. That being the case, one wonders why the Government has been unable to find the resources and the will to publish proposals, which has resulted in the Progressive Democrats having to use its Private Members' time to get some action in this area. There will be no comfort for people listening to this debate until the Minister sets a date and shows her proposals; I would number myself among those people.

The one consolation is that the Minister said she will examine all the suggestions that come forward in the light of jurisprudence under the European Convention of Human Rights. While that is great and I would expect no less, I do not see why this should cause a delay. I hope the Minister will, in the course of this debate, give us a date when these proposals will be published.

The Minister alluded to various other measures in her speech, which is generally a good tactic to draw fire away from [1432] the issue primarily being addressed. The criminal justice plans were referred to and while they are welcome in so far as they go, the Minister does not seem to be able to make any progress on the bail issue.

The more measures that are announced and the longer it takes before the bail issue is dealt with, the greater the frustration and demoralisation that will be experienced by the Garda Síochána. This, in turn, leads to infighting between all the various interests with the result that the root causes of the problem are not addressed. The symptoms can be seen in my own constituency of Dublin North which the Minister knows well. In this connection I welcome the recent assignment of four extra gardaí to Balbriggan where they were badly needed.

I have mentioned previously to the Minister, but it is worth repeating — this issue is wider than that addressed by the Bill, although still relevant — that the question of adequate resources for crime prevention measures to dissuade young people in particular from entering a life of crime has not been addressed. Under the new crime package no community gardaí will be assigned to the area mentioned where the one hard-pressed juvenile liaison officer is also forced to act as a community garda. Despite this, more and more young people are finding themselves in trouble. The Minister does not have to go very far in her own constituency to see the results in the burgeoning reformatory schools at Oberstown and Trinity House. This shows how little is being done to prevent crime.

We have been forced, out of desperation, to address the symptoms, but until we understand the links between cause and effect, which my party has emphasised time and again through the philosophy of ecology, we will continue to miss the boat. I hope that when the Minister finally presents her proposals in this area she will not take her eye off the ball in addressing the wider question of why crime is perceived as rampant to so many people, particularly those in [1433] business whose premises have been damaged and private property owners who are unable to cope with the onslaught from criminals who are not thwarted by the current legal provisions.

Mr. E. Byrne: I commend Deputy O'Donnell and her party for the work they put into the preparation of this Bill. While I disagree with many of her proposals there are others which I hope will eventually find their way on to the Statute Book.

In recent months one could not open a newspaper or turn on a television set without learning of a further terrible atrocity. Some citizens are under siege. This sense of threat is heightened by irresponsible media coverage. In recent months there have been acres of newsprint dealing with crime related matters. This has added little or nothing to our factual information base. Some evening newspapers have carried the same story on the front page on three consecutive nights with a different headline. This does not help us to understand crime in society.

There has been a steady increase in crime in recent years. This soon becomes clear to anyone who cares to glance at the published Garda reports. The current debate, however, is being conducted in a statistical vacuum. While we are all aware of the types of crime committed, we know relatively little about the people who commit crime, including how many are repeat offenders, the length of sentence they receive, the length of time they serve before being released and the path they take when released from custody.

Deputies may be interested to learn of some of the issues on which I have been unable to obtain information because of “the absence of reliable statistics”. One year ago I learned that information on the moneys confiscated from bailsmen was only available for the Dublin District and Circuit Courts. Last February I learned that recidivism rates among young offenders, except for those at St. Patrick's Institution were, [1434] sadly, “not readily available”. Last autumn I was told that statistics on the length of time served by prisoners were not available because “current methods of record keeping would not facilitate the ready compilation of statistics on the length of time served by individual prisoners”. Last December I was told that “records are not maintained in such a manner as to indicate the number of offenders convicted of crimes while on temporary release”.

Any Member who has ever asked a question to try to elicit this information is aware that there is a lack of reliable criminological statistics. This is not the fault of the Minister who has to rely on the resources available to her, but there is a need for more statistical information. This is one of the first areas we have to address to gain a clearer understanding of the crime problem.

There is also an urgent need to establish a criminological statistics unit under the auspices of either the Garda Research Bureau or the Central Statistics Office. Until we start to gather reliable data legislative proposals will continue to be little more than shots in the dark.

Deputy O'Donnell has proposed the establishment of a unified prosecution agency under this Bill. I understand that any developments in this regard would have to await the outcome of the Strategic Management Initiative process in the Office of the Attorney General——

Mr. M. McDowell: Does the Deputy believe that?

Mr. E. Byrne: ——and the review of the Department of Finance of the structure of the Office of the Director of Public Prosecutions. I hope the outcome of these reviews will lead to greater efficiency and transparency within the service.

Amidst the recent clamour for change, commentators inside and outside the House have forgotten about the rate of existing provisions which either have to be strengthened or, better still, implemented. I welcome the suggestion [1435] by Deputy O'Donnell that the provisions of section 11 of the 1984 Criminal Justice Act which provides for consecutive sentences should be strengthened. I also welcome some of Deputy O'Donnell's suggestions regarding the estreatment of bail although, notwithstanding the assurances in the explanatory memorandum, attaching a good behaviour clause to it may prove unconstitutional.

Having praised those elements of the Bill I have reservations about Deputy O'Donnell's proposed changes in criminal procedure. In particular, her proposal to grant either the Director of Public Prosecutions or the Attorney General the right to direct that a person be sent for trial without preliminary examination would require extremely careful consideration. While I accept this would speed up trials and relieve the logjam of people having to wait 18 months or more to have their cases heard, this proposal is akin to fast food justice, could lead to abuses and prejudice an accused person's right to a fair trial. I would have reservations about moves to limit the right of the defence to call witnesses during the course of preliminary examinations. There is no doubt that much of our criminal procedure needs to be streamlined and brought into the 20th century. In this regard I welcome Deputy O'Donnell's proposal to provide for forensic examination of persons remanded in custody. This matter should be examined in greater detail.

Fundamental changes to our justice system, such as those proposed in sections 12, 13, 14, 15 and 16, should not be considered unless there is strong evidence that they will secure conviction of the guilty while preserving the rights of the innocent. Nothing I have heard during this debate has convinced me that the proposed changes and the suggested manner of their implementation would satisfy those criteria.

The Minister said the Government is united on the need to address the problem of offences committed by persons [1436] on bail and Democratic Left shares the concerns of Deputies on all sides in that regard. In the absence of reliable statistics we are debating this matter in a factual vacuum. Approximately 9 per cent of offences are committed by persons on bail, the majority of which fall into the category of larceny, for example, pick-pocketing, mugging, robbery and armed robbery. According to the most recent figures, approximately 1 per cent of assaults are committed by persons on bail. We must, therefore, target measures at particular categories of people rather than adopt a scatter-gun approach to this complex problem. A blanket restriction on the availability of bail, when combined with the lengthy waiting period before cases are brought to trial, would result in large numbers of people spending long periods in custody pending trial and give rise to major logistical problems. Separate detention facilities may be required if we are to comply with European prison regulations and I do not know how this could be done given the current shortage of prison accommodation for convicted prisoners.

International statistics indicate that approximately one half of those remanded in custody pending trial are either acquitted or do not receive a custodial sentence. Many of the remainder receive custodial sentences substantially less than the periods they have already served in detention. This is particularly noticeable in continental jurisdictions where preventative detention or examination in custody is the norm rather than the exception.

Deputy O'Donnell's proposals to strengthen the provisions on estreatment of bail may be part of the solution but this would have to be examined further to ensure persons or their bailsmen are not disproportionately penalised for what may be relatively minor second offences. It may be worth examining the possibility of creating a new category of offence — a criminal offence committed while on bail.

[1437] I support Deputy O'Donnell's proposals on the management of prisons. The programme, A Government of Renewal, is an excellent document and should be read by members of the Government——

Mr. M. McDowell: I also believe members of the Government should read it.

Mr. E. Byrne: ——and the Opposition. It proposes the establishment of a parole board to ensure prisoners are released on a structured rather than an ad hoc basis and a prisons board to take over the independent day to day management of our prisons. The latter suggestion is designed to implement one of the central recommendations of the Whitaker report and would restore public confidence in our prisons system.

While agreeing with the general thrust of Deputy O'Donnell's proposals on prisons and parole, I have grave reservations about her suggestion in section 33 that a public register should be maintained of persons on temporary release. In many cases the publication of such information could prejudice, for example, the safety of the individual concerned and his or her family. Notwithstanding the safeguard in subsection (4), this proposal runs counter to the public good.

The Minister described the Bill as a curate's egg. The bad parts, unfortunately, reflect the general climate of panic and intimidation but seek short-term solutions to long-term complex problems. The good parts, however, should be retained for further examination and possible incorporation in forthcoming legislation.

Mr. M. McDowell: I thank the last two Deputies for their thoughtful contributions to this debate. I noted that in dealing with the bail issue Deputy Byrne studiously avoided the question of holding a referendum. In his proposals to improve the law on bail it is glaringly obvious Democratic Left does [1438] not support the holding of a referendum. It is interesting to reflect on Deputy O'Donoghue's speech on this Bill last week and the remarks attributed to the Tánaiste in The Kerryman on 2 February 1996. It is obvious that despite the shouting, roaring, rí-rá, ruaile buaile and the histrionics engaged in by the Minister to the effect that the Government parties are not divided on this issue and that newspaper reports written by responsible journalists were fabrications in so far as they quoted Labour Party Ministers as saying a legislative response was preferable to a referendum, the reality is there is not tripartite support for a referendum on bail. I understand how people could honourably oppose the holding of such a referendum, but either the bail law is perfect as it is or it needs to be changed.

The Supreme Court's decision in the O'Callaghan case was unwise. In effect, it guarantees that any person arrested and accused of a serious offence will be set at liberty pending his trial unless, as a matter of probability, there is evidence to suggest that he will either not turn up or that he will interfere with the proper conduct of the trial by interfering with the evidence of witnesses and the like. That guarantee is not available in any other common law country. Ireland is the only country in which the right to trial in due course of law and the constitutional right to liberty of the individual have been interpreted as giving an absolute guarantee to an accused person of his right to liberty unless, as a matter of probability, he fails one of two tests.

The Supreme Court in 1966 might have felt impelled by some liberal policy to go a little further than the law had ever gone before. There is a neat logic to the O'Callaghan case but that type of logic is detached from reality. When one is in a world where people are committing successive crimes as a way of life, where there is a low detection rate and where a general attitude prevails among a certain cohort of people of a particular age group from which crime emanates [1439] that prison is not a deterrent, a liberal bail law is mistaken.

I have argued before and I still believe that it would be an absurdity to address the issue of bail without addressing the prison service. One would end up emptying the prisons of those who have been convicted and replacing them with those who might or might not be convicted pending trial. As Deputy Byrne pointed out, in the present context of lengthy delays in criminal trials if would be equally absurd to imprison many people for a long period of time when, in the last analysis, they might be acquitted. Nobody can restore, in any real way, civil liberties to an individual who has been wrongly deprived of his liberty pending trial. I hope we will not create a situation in which we will have to start handing over compensation to those who have been wrongly deprived of their liberty.

This Bill provides, without any assault on the presumption of innocence or a question of there being preventive detention, that a person who goes bail for somebody else — thereby guaranteeing that he or she will turn up for the trial and will not interfere with witnesses — and who stands to forfeit the bail money if the accused breaches the two basic O'Callaghan conditions should, in certain circumstances on the application of the prosecutor, also be made to stand surety for the good behaviour of the accused person while awaiting trial. The sense of that provision is simple. Heroin addicts who support their habit by daily break-ins and muggings might find it very difficult to avail of the fiction of the presumption of innocence when they cannot persuade anybody close to them to even guarantee for a sum of money that the person will not commit a further offence while awaiting trial. People in such circumstances suffer no intrusion on their constitutional rights if they cannot convince anybody close to them or on whom they would normally rely in such [1440] circumstances to be bailsman and to act as guarantor for their good behaviour.

It is relevant that in Scotland the law already has that effect. It can be made a condition of granting bail in Scotland that one will not commit a further offence while on bail. That provision is not widely used because there is a discretion to refuse bail on wider grounds, such as existed here before the O'Callaghan case. Nonetheless, there is a precedent in a neighbouring jurisdiction for the refusal of granting bail in cases where somebody is likely to commit a further offence through the mechanism of making the surety liable to forfeit the bail if the accused abuses his bail to commit further offences.

Bail is being abused at present and we must face up to that fact. If this proposal is not the right one, a referendum is the only way to get around the problem. This proposal in any event does not prejudice whether there should or should not be a referendum. This Bill should be part of the law even if the Constitution is amended by the people to restrict the absolute right to bail. In cases where one knows in one's heart that people will avail of their liberty to reoffend, it is perfectly sensible to provide for a disincentive to their being granted bail. The most sensible way within our grasp at present is to create a situation where bailsmen should stand sureties for the good behaviour of the accused during the period of bail.

The present bail law is a joke. In the Dublin Circuit Court, as pointed out earlier today, one estreatment has taken place in circumstances where there have been hundreds of bench warrants issued for people who have broken their bail. The reason is that bail is fixed in sums which are so small that to have a court hearing as to whether I or somebody else, who has gone bail for an accused, should forfeit £200 is simply not worth the bother. That calls into question the amounts of money on which people can secure bail and the amounts of security offered. If hundreds of people abscond and do not face trial in the Dublin Circuit Criminal Court and in one year [1441] only one estreatment application is made, it is clear that the criminal has contempt for the disincentive of losing bail money. The prosecuting authorities, likewise, have no faith in the deterrent of forfeiture of bail as a real element in ensuring that people turn up for their trials.

I wish to deal with some of the points raised by the Minister in reply to Deputy O'Donnell. She said the provisions in the Bill allowing the Minister for Justice to make regulations for the general governance of the prison service and, in particular, section 30 which allowed the Minister to amend, adapt or repeal the antiquated system of prison legislation were, to use the Minister's phrase, “manifestly unconstitutional”. If it is manifestly unconstitutional, I advise the Minister's advisers to search carefully through the Statute Book where they will find many instances of the same thing being done in statutes proposed by the State. There are many precedents for detailed old-fashioned legislation being supplanted by a modern regulatory regime, which allows the Minister of the day to make amendments to Acts of the Oireachtas in respect of hospitals and other matters, which are perfectly constitutional. Another matter one must bear in mind is that there is a presumption of constitutionality and any provisions such as section 30 of this Bill would be interpreted as permitting a limited power of amendment for the purpose of facilitating the regulatory power conferred by earlier sections on the Minister.

I am not impressed by people who say we should be slow to change our law of criminal procedure. I have experience of criminal procedure; I have prosecuted and defended cases in our criminal courts for about 20 years. The cases were both simple and serious. There are some aspects of our system of criminal law which are offensive to reason. One of them is that prosecuting counsel, when somebody comes into court and says for the first time that he has an explanation for the incriminating facts on which the prosecution relies, is not [1442] entitled to say: “Mr. McDowell, if that is your defence, why did you not mention it when you were arrested; why did you not mention it when you went to the District Court; why did not save yourself the bother of being tried on indictment for a very serious offence and risk your liberty if a simple explanation was available to you which you could have given to the police?”

As the law stands, one cannot ask that question or say to the jury at the end of a case: “If the story given by way of explanation by the accused is true, ladies and gentlemen, why was it furnished in the court for the first time? What do you think of his decision to hold his cards close to his chest until the day of his trial and to go through this procedure without once mentioning that he has a perfectly good defence to all this case?” If one cannot ask simple and obvious questions, which go through everyone's mind in a trial, of a jury when closing a speech for the prosecution or for the accused then there is something unreal about the system. I strongly believe our law must be changed so that it conforms with common sense. In a jury trial which is in accordance with the laws of evidence 12 people are asked to apply their common sense to the facts. However, one then says that they must engage in what must be for some of them fantastic mental gymnastics not to ask obvious questions about the case tendered by the accused and not to permit the counsel employed by the State to pursue obvious lines of inquiry in terms of cross-examination.

We have already breached that rule in the law relating to alibi. One cannot call alibi evidence — that is, evidence to the effect that one was not at the scene of the crime but was somewhere else — unless the State is given notice of it. The reason for this is that the State must be given a reasonable chance to challenge this exculpatory evidence and to investigate its veracity. One cannot simply ambush the State with evidence on the day of a trial. If this is fair in the context of whether one was geographically at [1443] the scene of a crime or somewhere else as in alibi cases, then other explanations which can be dragged out of a hat as a surprise at a trial or brought up at the fifty-ninth second of the fifty-ninth minute of the eleventh hour in the criminal process must similarly be subject to the common sense rule that at least some adverse inferences can be drawn from that very simple fact. One of the sections which deals with this issue was not drawn from imagination or thin air but was included in a Bill tendered to the Houses of the Oireachtas by the Department of Justice in 1984, that is the capacity to draw an inference from the failure to mention certain facts. However, it was withdrawn at the time as a concession to civil liberties. I am not against the making of concessions to civil liberties but this was an unwarranted concession and the law would be better if it were changed.

Likewise, it is an affront to common sense to say that an accused person need not open his mouth during the three weeks of a trial and at the end of the case to allow his counsel to attack the State's case while at no time is the accused liable to be called to give evidence nor can the jury lawfully draw any inference from his failure to participate in a trial. Under the 1924 Act no comment can be made about whether the accused did or did not give evidence. It is absurd that a judge, providing he complies with the presumption of innocence, can comment critically on this and point out to a jury that an accused person has not given evidence while the prosecution may not do so, may not ask any questions on the subject and may not say to the jury “If there was an innocent explanation to all of this one would think that you would have heard of it, ladies and gentlemen of the jury”. Those antiquated laws belong to a bygone age and should not have any part in our modern jurisprudence.

This is the sort of thing which tends [1444] to tip the scales against fairness in prosecution. The people who are the prosecutors in most cases tried on indictment are as entitled to justice as an accused person. The time has come to reform our laws of criminal procedure to make them fair to the prosecution as well. One is not threatening civil liberties in any way if one introduces a law which accords with common sense and with ordinary people's sense of fair play and justice. I am not suggesting that Deputy O'Donnell would have been wise to include a section which provided that the previous convictions of an accused person should be capable of being dragged up against them in prosecutions, although many people think it is farcicial that a person with a record as long as his arm can pose as entirely innocent. However, it is a valuable safeguard as a jury would tend to believe that a person with five convictions must be guilty of the sixth offence. The proposals put forward by Deputy O'Donnell are reasonable and measured and are based on proposals in neighbouring jurisdictions. Some of these provisions are in operation in Northern Ireland and England and it is about time we began to address keeping the scales of justice fairly balanced between the prosecution and the defence. The Bill is not a tabloid approach to criminal law. Rather it seeks to make fairness operate where unfairness is perceived to operate at present.

Deputy Byrne said some provisions could be incorporated in Government legislation to modernise the criminal law. The Minister said she would introduce a criminal law Bill which would abolish the difference between felonies and misdemeanours, create a new form of arrestable offence, abolish the difference between penal servitude and imprisonment and do many other things in regard to the criminal law. That Bill was introduced in the House 30 years ago. I do not know how long it had been drafted before it was introduced but [1445] given the way things are done it was probably drafted five years previously. That Bill has sat on somebody's shelf for more than 30 years and there is no excuse for having left the criminal law in the state of intellectual slum into which it has fallen. I am shocked that it has taken 30 years to introduce legislation which would amend totally antiquated and insupportable legal distinctions and fictions. Why has the criminal law been left so badly unreformed? From time to time ad hoc measures are proposed but the entire process of modernising the criminal law seems to be unfashionable in the Department whose duty it is to keep it up to date.

The Bill proposes to deal with the prisons issue. The time has come to impose a statutory duty on the Minister for Justice to provide sufficient prison spaces to cater for those who are sentenced by the courts. The excuse offered by the Minister that the statutory duty to provide adequate space somehow ignores the right to give early release as an incentive to good behaviour is totally threadbare. The Bill merely provides that if the State is required by the courts to imprison people for a certain time and if, with good policy, there is a certain prison population, then there must be an adequate prison structure to accommodate those people. That is reasonable. The proposal to have an inspector of prisons is worthwhile as is the proposal to remove the Prison Service from the control of the Department of Justice. Although the Minister's response to Deputy O'Donnell's speech seems to suggest no final decision has been made on whether an executive office or agency should run the service rather than the Department of Justice, it is noteworthy that the Department was the preferred option in the five year plan for the management of the Prison Service published two years ago. I do not see any contradiction between ministerial accountability and making something into an agency of the Department. [1446] It is possible to do both as the policy document of the Progressive Democrats points out.

In Britain the Home Secretary is politically responsible for prisons and the Director of Prisons Service is responsible for their day to day operation. There may well be unfortunate clashes between the two as to who is responsible for deficiencies in the service but it is far better for the public to know there are deficiencies than to have a Department that pretends there is nothing wrong and refuses to release any relevant statistics about the service it runs.

I do not like to criticise public servants for the state of our laws or the functions assigned to their Departments. However, there is something strange about a culture in which successive Ministers for Justice, nominally responsible for what happens in that Department, publish prison reports which are years out of date. That is wrong. If there is a duty to report on prisons annually, why is the report not published the following March? Why is it that the latest set of prison reports available is for 1993? The only reason is sheer laziness and inefficiency and a sense that it does not really matter when one reports as long the provisions of the statute are complied with at some stage.

If we were told the truth about temporary release and the rate at which the prison door revolves, there would be a public outcry. When asked about the matter it suited successive Ministers for Justice to say that it would cost too much and take up an inordinate amount of time to give a fair picture of what is happening in the Prison Service. Anybody involved in the process knows that people are granted temporary release. In practice there is a huge remission of sentences. On average, the granting of temporary release in respect of most non-politically high profile crimes, such as rape, ensures that offenders spend roughly 30 per cent of their allotted [1447] time in prison. That is just as much a scandal as the process of remissions granted by the Department of Justice at one stage; it is a parallel system of justice. Sentences are reduced not by reference to whether the needs of society are satisfied by the punishment of the individual offender but solely by reference to the arbitrary issue of whether another person needs the cell.

The Prison Service is badly managed. We have the highest ratio of prison officers to prisoners. State expenditure on prisons increased by 50 per cent in the last five years but it received little in return. There are more employees in the system than prisoners. In New Zealand there are half as many officers but twice as many prisoners. Ministers for Justice will be uncomfortable if called upon to answer why we allow our prison system to remain in this state.

This Bill was introduced by Deputy O'Donnell with a view to tackling the real issues which confront the Garda and the State in the fight against crime. From changing the law on depositions, bail and the way in which our Prison Service is run to changing criminal procedure, this Bill was designed to put together a series of answers to practical difficulties which face the State in prosecuting the war against the crime.

In contrast, the Minister has brought in a very worthy Bill against drug abuse and trafficking. I support the thrust of her Bill but can people spend three or four days in detention staring at a point on the wall without having to account for the fact that they remain silent? Can those who spend a week in custody come to court and explain, for the first time, why they were caught with this or that substance in their possession without any inference being drawn? Can they insist on every State witness giving evidence orally in the District Court which must be taken down in handwriting by the District Court clerk and given to them for their signature? Are [1448] drug addicts and drug barons to be given bail with freedom to reoffend? Will they be granted temporary release without public knowledge? Will they be held in an inadequate Prison Service without serving the full sentence allotted to them by the court?

It is all very well to bring in a high profile anti-drug trafficking Bill, the terms of which I support, but what about the right to silence, the fact that drug barons will not give evidence at their trial, that there will not be sufficient prison space for them or that, due to antiquated criminal procedures, it will take a year to get them to trial? When will anyone face up to those issues which are far more practical in the fight against drug trafficking than many of the issues for which the Minister has such high hopes in her Bill? If we do not face the practical difficulties and the problems in our system of criminal justice, what chance is there that such legislation will have a serious impact on the drugs issue? A Government which tenders legislation such as the Criminal Justice (Drug Trafficking) Bill, 1966, and says it will not have any of this will find out it is long on rhetoric and short on positive results.

Minister of State at the Department of Education (Mr. Currie): I wish to share time with other Deputies. Deputy O'Donnell is to be commended for the work she has put into this Bill and neither the Minister nor I have any problem with that. The Minister for Justice has already told the House that the Government must oppose the Second Stage of the Bill, and the Deputy is aware of our intention in that respect. It is simply unrealistic to suggest that the major issues which the Bill purports to address can be dealt with in a piecemeal way in the kind of Bill before the House this evening. It has been amply illustrated in a number of speeches just how piecemeal the Bill is. The best way forward is to proceed as quickly as possible [1449] with the Government's own major programme of criminal law reform.

Despite what has been said on a number of occasions, the Government has a major programme of criminal law reform. The House will be aware that that includes a commitment to introduce a Children (Juvenile Justice) Bill. There has been a commitment from Governments for a very long time to introduce such a Bill. Members will be aware that such a Bill will be a replacement of a 1908 statute of the Westminister Parliament that was put on the Statute Book. Even before Lloyd George became Prime Minister, when he was in the lowly position of Chancellor of the Exchequer bringing in an old age pension of five shillings a week, the Children Bill was introduced. Indeed, when it was introduced in 1908 Sinn Féin, if my memory serves me right, had been in existence for three years, founded by Arthur Griffith on the basis of a dual monarchy similar to the Austro-Hungarian Empire. That is a good indication of how times have changed since the introduction of the Children Bill of 1908 and the Bill I hope to introduce shortly. There have been major changes in relation to political, social and economic conditions. In many respects the Bill was not bad for its time. It was quite forward looking in some respects. It still retained flogging, of course. There might be some in this House — Deputy McGahon is not here — who would think that flogging should remain on the Statute Book but I and the majority of people in this House would not be of that opinion.

There have been many promises to bring forward a Children (Juvenile Justice) Bill and I am pleased to tell the House that substantial progress has been made with its drafting. The heads of the Bill have been approved by Government and I hope to have it published before the summer recess. Despite many promises in the past that it would soon be in the Statute Book, [1450] this Bill was held up by what I would describe as disagreements on core issues between certain Departments.

I am glad to be able to say that my appointment as a Minister of State with responsibility for co-ordination in the Departments of Health, Education and Justice has been a major factor in overcoming the disagreements in relation to those core issues. I will not go too far because one cannot, but such issues as who would have responsibility for outof-control children, the age of criminal responsibility, etc., had to be dealt with. There were a number of other issues but Members will have to await the publication of the Bill to find out about them.

The Bill is a substantial measure representing the most significant reform of our law in this area since the foundation of the State. It will attempt to keep as many of our young people as possible out of the custodial system. I have been determined on that because I am aware that, if we can cope with the problems of young people in relation to criminal activity in their early years, it will very much reduce the demands on our system, particularly our prison system, at a later stage.

In that respect also I have proposals, wearing my other hat in the Department of Education, to introduce a truancy Bill. Some estimation of the necessity for that can be gained from the fact that our present school attendance Bill dates from 1926 — not before the creation of the State as in the case of the juvenile justice Bill, but not that long after it came into existence. Where there is a direct connection between the nonattendance of children at school and their getting into trouble, this Bill will be aimed at keeping them out of the custodial system.

The desirability of reforms to our bail laws has been discussed here frequently. Given the time available to me this evening, all I propose to do is welcome the Minister's assurance that the [1451] Government will announce its own proposals on this matter in the near future. I have no doubt that those proposals will be comprehensive and effective, which is not something that could be said about the proposals in Part II of the Bill under discussion.

Another fundamental area of our law which the Bill seeks to address is the right to silence. I propose to concentrate on this issue in the rest of my contribution. Under our criminal law the general rule is that a person is not required to answer any questions in connection with an offence of which he or she is suspected. This is in line with the general constitutional protection against self-incrimination. There have been some statutory exceptions to this rule, the most recent having been included in the Criminal Justice Act, 1984. Sections 18 and 19 of that Act allow a court or a jury to draw inferences from an accused person's failure or refusal in the course of Garda questioning to account for certain matters, for example, marks on his or her person or clothing or presence in the vicinity of a crime. These inferences cannot be drawn unless the accused was told in ordinary language what the effect of failing or refusing to provide the relevant information may be. Although such inferences can be treated as amounting to corroboration of other evidence, the Act provides that they cannot be used to convict the accused without further evidence.

The Bill leading to the 1984 Act originally contained a wider provision to the effect that inferences could be drawn from the failure of an accused person to mention any fact during Garda questioning which he or she could reasonably have been expected to mention and which is relied on in his or her defence at trial. This proposal was dropped in the light of opposition to it from both within and outside the Oireachtas.

There are strongly conflicting viewpoints about this issue. On the one hand [1452] it is argued that the right to silence is an old and very important protection of a suspect's rights and that further erosions in this area could lead to the conviction of innocent people. On the other hand, it is argued that many of the factors which may have rendered this a fundamental protection in times gone by no longer apply. For example, there is now ready access to criminal legal aid and it can be argued that, given the nature of the crime problems which society now has to face, the balance needs to be tilted in an effort to protect the public and that such a move in relation to the right to silence would be proportionate to the threat which needs to be addressed. It is a matter of judgment how useful such a change is likely to prove in practice in relation to the prevention and detection of crime. It is unlikely that it would prove practical to introduce a proposal that inferences from silence generally could be drawn without including the type of safeguards included in the limited provisions contained in the 1984 Act, that is, that the suspect would be warned in advance of the consequences and that inferences alone would be insufficient to warrant a conviction. In these circumstances, that is, dealing with professional criminals who choose to stare at a spot on the wall and to say nothing to the Garda during an interview, a new provision allowing inferences to be drawn would not be of any direct assistance in securing a conviction which, if the Garda had no other evidence linking that suspect, would be a crime.

Debate adjourned.