Private Members' Business. - An Bille um an gCúigiú Leasú Déag ar an mBunreacht, 1995: An Dara Céim. Fifteenth Amendment of the Constitution Bill, 1995: Second Stage.
Wednesday, 27 September 1995
Dáil Éireann Debate
Mr. O'Donoghue: Any decision to seek an amendment of the Constitution cannot be taken lightly or without substantial cause. The Constitution is the fundamental law of this State. It has the authority of the people. It is a statement by them of the manner in which they wish their society to be ordered. Since 1937, this House has considered seeking the approval of the people to have their Constitution amended on only 14 occasions. The rarity of Bills of this nature is powerful evidence of the fact that the Constitution has served us well and has been seen by the people, and by this House, to have served us well. Any person moving a Bill which proposes an amendment of the Constitution carries an onus to establish to the satisfaction of this House, and ultimately the people, that the present constitutional position is defective or deficient to an extent that causes a real and substantial injustice in society.
The manner in which Article 40.4.1º of the Constitution has been interpreted by the courts has, in recent years, resulted in a real, substantial and continuing injustice to the people of Ireland. This Bill is designed to give the people an opportunity to remedy that  injustice and rectify the deficiency in the Constitution. The ultimate decision as to whether the Constitution ought to be amended is one which only the people can make. My purpose in introducing this Bill is to allow the people to have their voice heard on the matter.
Over the past 30 years, the constitutional law of this State has developed in a manner that can hardly have been envisaged by its founders. This is no bad thing. A Constitution must, of necessity, be a living document — alive to changes in society and technology which affect the lives of ordinary citizens. There is, however, a danger that the vast volumes of jurisprudence which relate to the rights of accused persons will eclipse the equally important rights of their victims and potential victims.
The Constitution is a document which exists for the protection of citizens and society; it does not exist exclusively for the benefit of persons charged with criminal offences. The Constitution ought to exist as a sword for the advancement of righteousness and justice as well as a shield for the protection of the accused. It is the duty of this House to ensure that is so and to afford the people their right to wield that sword in the protection of their fellow citizens. This is a Bill designed to let the people do just that.
Article 40.4.1º of the Constitution provides that: “No citizen shall be deprived of his personal liberty save in accordance with law”. The law as it currently stands does not permit our courts to remand a person charged with a criminal offence in custody even if the court is satisfied that the accused person is likely to commit serious criminal offences if released. This has been part of our law for almost 30 years since the Supreme Court delivered its judgment in the case of the people v. Roger O'Callaghan which is reported in 1966 Irish Law Reports at page 501. It ought not to be assumed that this decision of the Supreme Court was inevitable or followed universal legal practice.
It is frequently forgotten that the decision of Mr. Justice Murnaghan, a  distinguished jurist, in the High Court in the O'Callaghan case was that one of the matters which a court may and should take into consideration in hearing an application for bail was “the likelihood of the commission of further offences whilst on bail”. Mr. Justice Murnaghan expressed the view that “a prisoner facing a heavy sentence has little to lose if he commits further offences. A prisoner may consider that he has to go to prison in any event and, in an effort to get money to support his family, may commit further offences”.
Those words of Mr. Justice Murnaghan have a strong ring of common sense that will appeal to many on all sides of this House. I cite them to demonstrate that there was a significant body of jurisprudence in this country at the time the O'Callaghan decision was delivered which was of the opinion that the likelihood of further offences being committed was a legitimate matter to be taken into consideration by a court in deciding whether to admit an accused person to bail.
In 1966, when the Supreme Court delivered its judgment in the O'Callaghan case, society was very different from what it is today. The consumption of controlled drugs was unknown. The existence in society of many thousands of people who had a daily need to acquire significant sums of money to fund a drug addiction was unthinkable. Even in those relatively crime free days it was recognised that the right to bail was not absolute.
The precise terms of Mr. Justice Walsh's judgment in the Supreme Court are worth remembering. He said: “From the earliest times it was appreciated that detention in custody pending trial could be a cause of great hardship and it is as true now as it was in ancient times that it is desirable to release on bail as large a number of accused persons as possible who may safely be released pending trial”. Many will share my view that a person who will probably commit  crimes while awaiting trial is not a person who, in Mr. Justice Walsh's view, “may safely be released”.
The change in our Constitution I propose this evening on behalf of Fianna Fáil is not one so radical as would make the Irish legal system different from all other common law countries. It would bring our law broadly into line with the position which pertains in the United Kingdom. There, the Bail Act, 1976 provides:
The proposed amendment would do no more than permit our judges to refuse bail on similar grounds to those on which bail can be refused by judges in the United Kingdom. The position there is not unique. It is a hallmark of many common law jurisdictions that bail can be refused in circumstances where there is a likelihood or probability that an accused person will commit offences if released. In the Australian jurisdiction of New South Wales the Bail Act of 1978 permits, in section 32, a court to consider “... the likelihood that a person will or will not commit an offence while at liberty on bail” in arriving at a decision as to whether to grant or refuse bail.
This proposed amendment to the Constitution seeks to do no more than provide the people of Ireland with the same type of reasonable protection as the peoples of other countries who have armed themselves in their battle against crime. The amendment would bring our  laws into line with those in other civilised democratic nations and afford our people a similar measure of protection as those in other countries enjoy.
The right to liberty as expressed in Article 40.4.1º of our Constitution is not absolute. It is well recognised and beyond dispute that the right to liberty may and must be curtailed in the interests of the common good. The Constitution recognises explicitly that the right to liberty can be proscribed by law. The expression “by law” clearly envisages that persons tried, convicted and sentenced by courts, established under the Constitution, may forfeit their right to liberty. The Oireachtas and the Supreme Court have also explicitly recognised that there are circumstances in which a person may be deprived of their liberty prior to conviction. Arrest and detention under section 30 of the Offences Against the State Act, 1939, and section 4 of the Criminal Justice Act, 1984, are examples of the deprivation of liberty by law in order to advance the common good by giving to the Garda the necessary power to question suspects. Even the O'Callaghan case recognised that there were circumstances in which a court could and should properly and lawfully deprive a person of their liberty prior to trial and conviction.
The likelihood that an accused person will abscond or interfere with witnesses are both accepted by the courts as factors which permit an accused person lawfully to be detained in custody prior to trial. It is important to note that the Supreme Court did not say that these two factors were the sole and exclusive factors which could lead to the refusal of bail. Mr. Justice Walsh, in his judgment in the O'Callaghan case expressly recognised that a belief that an accused would commit offences if left at liberty could, in certain circumstances and if authorised by the Oireachtas, lead to a refusal of bail. He stated:
In this country it would be quite contrary to the concept of personal liberty enshrined in the Constitution  that any person should be punished in respect of any matter upon which he has not been convicted or that in any circumstances he should be deprived of his liberty upon only the belief that he will commit offences if left at liberty, save in the most extraordinary circumstances carefully spelled out by the Oireachtas and then only to secure the preservation of public peace and order or the public safety and the preservation of the State in time of national emergency or in some situation akin to that.
Many people are now of the view that the number of drug addicts who daily rob and thieve to feed their addiction constitute a threat to the fabric of society as great as has ever been faced in the history of the State. It is necessary to take reasoned and cautious steps to protect the fabric of society and the quality of life of those who seek to live honest and decent lives. The amendment which I propose is, I believe, such a step. It is a step which has already been taken by other countries and strikes the correct balance between protecting the rights of individuals and safeguarding the common good.
2. Any person charged with an indictable offence may be remanded in custody pending trial if, on the hearing of an application for bail, the judge is satisfied that there is a probability that the person will commit a class of criminal offence which is also an indictable offence if admitted to bail.
3. Any person remanded in custody pending trial by reason of a judge being satisfied that there is a probability that the person will commit a class of criminal offence which is also  an indictable offence if comitted to bail shall not be remanded in custody for that reason alone for any single period greater than 90 days.
The category of persons directly affected by the change is expressly limited to persons charged with indictable or serious offences. This amendment is aimed at persons who have been charged with serious criminal offences. It does not apply to summary or petty offences. It does not mean that bail does not apply to those serious offences. It involves only a small but important extension of the jurisdiction currently exercised by judges appointed under the Constitution. If judges are satisfied by evidence of the fact that an accused person will interfere with witnesses or will not turn up for trial they are entitled to deny bail. This amendment would add a third category to that list — a category which would require a judge to be satisfied by evidence in open court before it could result in a person being remanded in custody.
To deny the people the opportunity to voice their view on this amendment is to say that we as a society wish our judges to release into the community persons whom they believe will commit serious criminal offences after they have been charged with one serious criminal offence. To say this is to misunderstand the nature of the right to liberty guaranteed by the Constitution. The right to liberty is not a permit to pillage and plunder, it is not a licence to rob and thieve. It is a right which carries duties and responsibilities — a duty to obey the law and a responsibility to respect the constitutional rights of other citizens. Where a court is satisfied by evidence that a person who awaits trial on one serious criminal charge will, as a matter of probability, abuse his right to liberty by infringing the constitutional rights of other citizens I believe it is correct for the court to be empowered to take limited action to protect the constitutional rights of ordinary people by  remanding that person in custody for a specific limited period.
The requirement that an accused person may be remanded on bail is necessitated by the delay which takes place between the arrest of a suspect on a criminal charge and the subsequent trial. Some delay is inevitable — time will be needed to prepare necessary documents and to afford an accused person and his legal advisers an opportunity to consider the case being made against him. Natural justice requires this. What is wholly unnecessary is the scale of delay currently existing in respect of the trial of indictable offences in our courts. Insufficient judges and courts combined with a dated and unnecessarily cumbersome pre-trial procedure have resulted in unwarranted, interminable and unacceptable delays.
Members may well wish to reflect on the sad fact that in Dublin only three Circuit Court judges are permanently available to deal with indictable crime. Those three judges have the onerous task of dealing with all serious crime with the exception of murder and rape. Every indictable robbery and assault, every serious drugs offence must join the queue to be tried by one of those three judges.
I submit it is a scandal that the criminal justice system in this city will, on average, take at least a year to process a case from arrest to trial. The shortage of judges is a major factor but it is not the only one. The antiquarian procedures provided for in the Criminal Justice Act, 1967, are a significant impediment to the smooth operation of justice. It is indefensible, in the late 20th century, that every person who is to be tried for any offence on indictment has the right, if he chooses to exercise it, to call every witness on deposition. This mind-numbing procedure involves the witness coming before a District Court judge and giving his evidence at a pre-trial hearing so that it can be written down in longhand by a District Court clerk. It is legitimate for the people to ask whether this Government is serious  about crime when it tolerates the continuation of this procedure.
Fianna Fáil has published the Criminal Procedure Bill, 1995, which provides for a fast track approach to specified crimes. I am pleased to note that the Law Reform Commission in its report presented to the Attorney General on 17 August and published by the Government——
Mr. O'Donoghue: ——by some strange coincidence, this morning, endorsed this approach by noting that one of the most effective methods of combating the commission of crimes while on bail would be the reduction of delay in cases coming for trial. A factor which appears to have been ignored by many in this debate is the existence of many thousands of readily identifiable drug addicts who need to acquire large sums of money on a daily basis to feed their addiction.
To release on bail without treatment a person with a severe drug addiction is to guarantee the commission of further offences. It is no coincidence that the Law Reform Commission found that in excess of 25 per cent of robberies and muggings were committed by persons on bail. These are the methods through which many drug addicts fund their addictions. Any measure which would reduce the level of robberies and muggings ought to be welcomed. Our proposal would permit a person charged with such an offence to be remanded in custody for up to 90 days should a court believe he would commit further offences if released. A properly organised criminal justice system can provide for a trial within that period.
The removal of criminals from our streets is a costly matter. It takes political will and determination to put such a proposal in place. The Fianna Fáil Party is committed to returning the streets of this country to the people. We are determined to strike relentlessly against crime and its perpetrators. This Bill is  designed to let the people voice their views and all I ask is that this House trusts them.
I think it was the Yukon poet, Robert Service who wrote “that a promise made is a debt unpaid”. The Minister for Justice last March quite correctly promised a referendum on bail laws. Clearly, in making that statement she recognised there was an urgent need for reform. The report of the Law Reform Commission today does not validate the argument that there is now no need for a constitutional referendum on bail. We have seen a continuing steady rise in serious crime committed by people who are out on bail. That is supported by the statistics.
The Criminal Justice Act, 1984, provided that an individual who committed an offence while on bail would receive a consecutive sentence if convicted. Unfortunately, it would appear that some courts interpreted section 11 of that 1984 Act contrary to the spirit of the legislation. The courts are interpreting what the Legislature intended as a consecutive sentence to be a suspended consecutive sentence.
A notion grew up also that the totality of offences should be taken into account so that it would be proportionate to the sentence. This sent the signal that there was no need to worry if one committed an offence while on bail. Since one would go to jail, anyway, one might as well be hung for a sheep as for a lamb. That certainly was the message sent down the line and the result is that in every year during the past four there has been a substantial increase in the number of people committing offences while on bail. As long as that criminal legal regime pertains, as sure as night follows day, we will almost certainly see a continuing rise in crime committed by people who are out on bail.
It is unfortunate that a person who is addicted to heroin is not only likely to commit a crime while on bail but is almost certain to. The unfortunate individual has to feed what is a very serious habit. We have to recognise that we must as a matter of humanity provide  treatment facilities for those people. No criminal system should tolerate a situation where an individual who is drug free can be sent to Mountjoy Prison and come out an habitual addict. Unfortunately, that possibility exists today. In treating drug addicts and in doing what is the decent human thing we must protect society from a rising tide of criminality.
When the judgment in the O'Callaghan case was handed down in 1966 few people would have believed that within 30 years law and order would have broken down in certain parts of the country to the extent that we have in excess of 100,000 indictable serious offences every year. The statistics are quite frightening. It is estimated that 80 per cent or more of crime committed in Dublin today is drug related and 1966 is light years away from the society which exists in 1995.
We have to face up to the reality that if the problem is not arrested in all probability it will not only get worse in Dublin city — and recent statistics show that the numbers going to treatment clinics have gone through the roof — but will spread to every town and village. Something has to be done now. The Garda Review editorial states:
The decision not to address these issues was a serious error of judgment for a number of reasons, not least of which was the disastrous signal it conveyed to the criminal fraternity and the inevitable consequences it will  continue to inflict on the law abiding community.
In the circumstances we demand on behalf of the Gardaí and the people we serve, that the Government give immediate priority to these issues and signal their resolve to deal with thuggery and restore public peace and good order.
Law abiding citizens are entitled to protection in their homes, at work and on the streets. The Guardians of Peace are equally entitled to the full support of the Government in their endeavours to achieve these noble objectives.
When I introduced a Bill dealing with restrictions on the right to bail earlier this year the Minister for Justice said I was only tinkering with the problem. It is ironic that the Law Reform Commission in Chapter VI of its report recommends many of the restrictions published in my Bill. If we were tinkering with the problem, which we were not, then what the Minister said was required was a referendum.
Here is the opportunity. The Fifteenth Amendment of the Constitution Bill, 1995 which I am introducing on behalf of Fianna Fáil, contains the wording of a referendum and would undoubtedly play a major role in protecting people in their homes and streets and on the highways and byways of Ireland. Those who are interested in upholding law and order and who truly care about reducing an intolerable level of criminality in our society will support the Bill. Those who do not support the Bill and who said there was a need for a referendum can only be judged by the public as having broken a promise and as spouting so much hot air. I am coming to the conclusion that this Government — the rainbow coalition — is forever amber. It has a criminal justice  policy that is “somewhere over the rainbow, way up high”.
Mr. Briscoe: I have no doubt that the Minister is well aware of the problems that exist in our society today. This country is verging on a state of emergency. The public and the gardaí know this but few people are prepared to admit it.
I wish to make a number of suggestions to the Minister. In addition to seeking her support for this referendum Bill, she should introduce a change in the identity parade system. Citizens are afraid to identify people because they must put their hand on the person's shoulder in order to point them out whereas in the American system the person looks through a one way glass to point out the offender. Would the Minister have a serious look at that issue? I have had conversations with a number of people who are afraid and have been threatened. They fear that they will be punished later if they identify the criminal. I have also met some very courageous people who have, in spite of such warnings, identified criminals. However, they should not have to endure that fear, particularly as they have probably gone through the trauma of being mugged and are obliged to attend the identity parade for that reason.
I hope the Minister will listen carefully to my other concern. Parties such as Sinn Féin could easily win a great  deal of support in elections. Their punishment beatings and other such activities in the North could start down here and I do not want to see that happen. However, the public are desperate and anybody who promises a solution will garner a great deal of support. We should be cognisant of that prospect; we must recognise that it is a distinct possibility and must be seen to act.
This week I spoke to a man who travelled to a certain part of the inner city on a business call. While his car was parked and he was conducting his business the staff called in to tell him that it was being broken into in the grounds of the premises. When the man went out to his car the people who were tearing the car apart set upon him, held a knife to his throat and tore his clothes searching for his wallet. The man started to hyperventilate. The manager of the premises had rung the gardaí but they had not arrived. They knew the area well but by the time they reached the scene the incident was over. The man was admitted to the Mater Hospital because he thought he was having a heart attack. He told me he was absolutely terrified. He will not get over that incident for a long time.
These are thugs. They do not deserve any quarter. These people do not have to worry about the law. There is no law or order for them. They see what they want and they take it. Anybody who gets in their way had better look out. The people who were supposed to be looking after this man's car had been warned that if they intervened they would never work in that place again because the intruders would get them. The security people were even afraid to go to this man's rescue. This happened in our city.
We know of the many tourists who have been mugged. Within the last week a friend of mine visiting here from Chicago was mugged and had his personal effects taken, including a notebook with telephone numbers of people he wished to contact here. This is happening every day and night. These junkies — most of them are junkies — could  not care less. They do not care about their families; they would rob their mothers, fathers, brothers and sisters. Does anyone think they will care about a member of the public? There is no care or concern. They do not care what they have to do to get their next fix. A young lady being interviewed on television recently said that she needed over £200 per day to feed her drug habit, yet we let these people out on the street.
We must take tough decisions and stop being afraid of newspaper columnists decrying our ideas as Victorian. We must be courageous because that is what the people want. They will cheer for the Minister if she is seen to act and do something about these criminals. We need boot camps. They are being considered in Britain, even though a few years ago everybody would have been horrified at the idea. People are afraid to speak out. They are afraid of getting the reaction: “There he goes again, the law and order man”. If some of the advice I have been offering over the years had been taken the problem might not be as bad as it is.
I can give an example of the measures I sought. I was the first Member of this House to ask that consecutive sentences be handed down for crimes committed when out on bail. That was eventually accepted but the provision is for a maximum of two consecutive sentences. I would give the offender a consecutive sentence for every crime committed when out on bail. We are pussyfooting with this issue. I am not blaming the Minister because all Governments are to blame in this regard.
I have called for parents to be made responsible for the actions of their children. When I made that call to the former Minister for Justice, Deputy Doherty, he was advised by his officials that people could not be held responsible for crimes committed by others. I told the Minister that a person can be held responsible for his dog. If a dog bites somebody the person can take an action against the owner even though one cannot communicate with a dog as  easily as one can communicate with a person. Legislation is now proposed to make parents pay for the damage done by their children.
There is a gut response from people when one proposes such measures at meetings but then the people are left waiting and nothing happens. There are muggings and car thefts every day. Which one of us does not know somebody whose car was stolen? How many of us have had our cars stolen and seen the damage done to them? People hope they will not get the car back because it will be in such a state that it will cost a fortune to have it fixed. They hope it will be burnt because the insurance company will pay. That means everybody is paying.
These young criminals have no respect for old people or young people. One hears awful stories about old people being beaten up in their homes and robbed. The offenders are nothing but hooligans and blackguards. Name calling will not achieve anything but that is what they are and they deserve no quarter. We must take them on because they are winning. They are running circles around the gardaí, making them look inept and a laughing stock. One might say that one must protect our gardaí because they do a grand job. However, they cannot do a grand job if they are handcuffed and the gardaí are the people who are handcuffed, not the criminals. Gangsters do not have law and have no respect for the law. The gardaí must work within the law. There are no shortcuts for them. The law handcuffs the gardaí.
It is time to conduct a relentless war on criminals. The Minister will receive the support of this House and the people. For God's sake, do it because the situation cannot continue as it is much longer. Literally, we are in a constant battle to stay alive. Not one of us goes home any night without the thought or fear that it is the night we are going to be attacked or burnt out of our homes. I passionately appeal to the Minister to get tough.
Minister for Justice (Mrs. Owen): I welcome today's publication by the Law Reform Commission of its report on the law of bail and I am sure all Members will join with me in paying tribute to the work which members of the commission put into the report on a fundamental and complex aspect of our law. To clarify a comment made by Deputy O'Donoghue, the date the report is published is solely a matter for the Law Reform Commission — it has nothing to do with me. I have already begun the process of examining the report in detail with a view to submitting proposals to Government as quickly as possible. This process will be facilitated by the fact that I have had work on this matter ongoing in my Department while awaiting the commission report. My proposals to Government will reflect the fact — as I have stated publicly on a number of occasions — that I share the public concern that our bail laws are being abused.
It is puzzling, to say the least, that on the day the Law Reform Commission publishes a report on the law of bail, Deputy O'Donoghue would commend to the House a Bill seeking to amend the Constitution without even one day's consideration of this substantial report. To suggest that the Government or the House should accept it without having time to consider what the Law Reform Commission report — which runs to about 200 pages and took over 18 months to produce — has to say is, at the least, naive and certainly unwise. I know Deputy O'Donoghue to be neither naive nor unwise and that if he were on this side of the House, he would be doing exactly what I must do this evening and oppose this Bill with a view to bringing my own proposals to Government, after careful consideration of this report.
There is no disagreement between Deputy O'Donoghue, myself and — I would have thought — all Members of the House about the seriousness of our crime problems. While international studies show that our crime levels are relatively low, that is cold comfort to the victims of crime. Both I and the Government regard tackling crime as a  key priority and we have taken, and will take, whatever steps are open to us to tackle these problems effectively.
There are, of course, no easy answers in this area. If there were, they would have been adopted long ago. I see a former Minister for Justice on the Opposition back-benches. If there were easy answers, why did he not adopt them? This is a point which is well understood by the former Ministers for Justice in this House, and there are a number still serving. Where I would seriously disagree — and I suspect my predecessors would seriously disagree — with Deputy O'Donoghue and Deputy Briscoe is with the fantasy that crime started just before last Christmas when the Government changed. Are we to believe that before I took office there were no unsolved crimes, no delays in the courts, no problems with pressure on prison accommodation and that our drugs problem is somehow linked to the fact that Deputy O'Donoghue's party is no longer in Government and my party is?
The Deputy refers to crime problems as if they have only just arisen and does not acknowledge fully the steps I have taken to deal with them. That is understandable: no Opposition Deputy would like to give praise or credit to a Minister. I will mention only some of what the Government and I have done so far. I have launched the most comprehensive package ever to deal with the drug trafficking problem and work is progressing satisfactorily to put the different elements in place, including the legislation. This package was welcomed and supported by all sides of the House. I have taken a wide range of measures — of which the House will be aware — to improve the effectiveness of the Garda Síochána, the courts and the prison service. For example, I am preparing the Courts and Court Officers Bill which will include a provision to increase the number of judges by 17. It will also include a number of measures to improve efficiency and speed up trials. My priority has been and will continue to be to tilt the balance of the system in favour of the victim and against the perpetrators of crime. That is particularly the case in relation to bail.
 I have to remind the Deputy that the decision to refer the question of bail to the Law Reform Commission was made by my predecessor, the Deputy's colleague, Deputy Geoghegan-Quinn, in early 1994. To suggest that this Bill be proceeded with without considering the commission's report seems to imply that the decision to refer this matter to the commission was irrelevant and/or unnecessary. I am not implying any criticism of my predecessor on that score — it is Deputy O'Donoghue who is doing that — but the reality is that it must seem contrary to Fianna Fáil's best judgment as the main Opposition party to proceed with this Bill before there is an opportunity to consider fully the commission report which is now available to the public and which they themselves sought.
That is aside altogether from the considerable doubt there must be as to whether what the Deputy is proposing would be an appropriate or effective way of amending the Constitution. In particular, there is no compelling case for believing that Deputy O'Donoghue has presented us with an amendment which would, in practice, have the effects he claims for it. For example, on one interpretation of the wording he proposes, it would place no obligation whatsoever on the courts to take into account the possibility of the commission of further offences when considering whether a person be granted bail.
The Law Reform Commission report does not contain a summary, presumably on the basis that it confines itself to an examination of the law and does not make recommendations; it was not asked to do so. Few, if any, Members will have had the opportunity to read it fully and it might be helpful in those circumstances if I were to give an outline of the main features of the report. In doing so I will make some comments of my own but the House will appreciate that, before I have an opportunity to  examine the report fully, any such comments are of necessity preliminary in nature.
In its analysis of the law in this area, the commission mentions that “by international standards, Ireland remands few persons in custody pending trial”. Ireland is stated to be unusual among common law jurisdictions in having failed to introduce comprehensive bail legislation in recent decades. The various judicial decisions in this area, particularly the landmark O'Callaghan judgment, are summarised. Irish law is characterised as “unusually restrictive” in respect of matters which may constitute grounds for refusing bail.
The report makes an especially interesting comment on the operation of section 11 of the Criminal Justice Act, 1984, which requires — or was intended to require — the imposition of consecutive sentences for offences committed while on bail. Deputy O'Donoghue referred to this particular part of the report. It suggests that, because of a number of judicial decisions involving this section, it might not be working as the Oireachtas expected. In one case, the Court of Criminal Appeal held that, while sentences must be consecutive under section 11, the court, in the case of grave offences, should adjust the sentence downwards where not to do so would impose a manifestly unjust punishment on the accused. This is known as the “totality” principle. In other cases, it was held by the courts that the consecutive sentences under section 11 could be suspended. It is not clear from the report what the effect of these cases has been in practice, in other words, how frequently courts use these judgments to avoid imposing consecutive sentences, but clearly this is a matter which needs to be examined further and corrective legislative action taken if necessary.
In relation to other aspects of our existing laws the report contains some good and some bad news. The traditional remedy for breach of bail — estreatment — remains in force but it is rarely enforced and, even when invoked  by the Director of Public Prosecutions, the courts are often reluctant to estreat all of the bail money, particularly where a financially hardpressed spouse is involved. This clearly suggests that the law in this area is proving largely ineffective but, on a more positive note, the report points out that the provisions of the Criminal Justice Act, 1994, dealing with the confiscation of the proceeds of crime may partly address the phenomenon of career criminals using their time on bail to develop a financial fund.
In assessing the extent of the problem of the commission of offences while on bail, the commission has regard primarily to two sets of statistics: Garda crime figures and international prison population trends. One set of Garda statistics would suggest that in the years 1992 and 1993 9 per cent of all detected indictable offences were attributable to persons on bail. Within this, there are wide variations for various types of offence but it is worth noting that the 1993 figures would be taken to suggest that 27 per cent of detected armed robberies were committed by persons on bail. It is important to bear in mind that the figures used for detected offences include cases where convictions have not followed and are based on a Garda view that they have detected the offender in relation to a particular crime. The commission emphasises the need for caution in using these statistics particularly in terms of assumptions that may or may not be valid in extrapolating from these figures the overall number of offences likely to have been committed by persons while on bail.
The report finds that the number of persons remanded in custody prior to trial in Ireland is extremely low by international standards. Indeed the figures included in the commission's report show that we have the lowest rates of pre-trial detention among Council of Europe countries. This is both as a percentage of remand prisoners in the total prison population and in the rate of detention per 100,000 of the population. I can think of no plausible explanation  for these figures other than that they reflect the relative laxity in our bail laws.
The report goes on to consider international studies which have been undertaken about the efficacy or otherwise of various methods of attempting to predict behaviour, for example, whether someone is likely to commit a serious offence if released. Broadly speaking, the commission concludes that the results of these studies are discouraging.
The report contains a very useful analysis of the law on bail in other countries, in particular the United States, Canada, England and Wales, Scotland and Australia. For me, a key point which emerges from this analysis is that all the jurisdictions surveyed permit custodial remand, at least to some degree, in order to prevent the commission of further offences. Sometimes this is only to prevent further serious or violent offences; sometimes it covers any further offences. Usually this form of detention only applies when the offence with which the person is charged is a serious one. I believe that one of the main questions we have to ask ourselves in considering what needs to be done about our bail laws is whether the nature and rate of crime in society is so different from that in the kinds of country I have mentioned that we alone should have no capacity, whatever the circumstances, to permit custodial remand for the purposes of preventing further offences.
Another chapter of the report sets out what might be seen as the philosophies underlying the bail issue. It looks at arguments for and against a change in Irish law to permit the pre-trial detention of an accused on the basis that he or she might commit offences if released. Among the issues considered are whether the commission of offences while on bail warrants a departure from the normal deterrence-based operation of the criminal justice system. The question of whether pre-trial detention constitutes a punishment is considered. In relation to constitutional issues the report considers what principles or  rights would be infringed by pre-trial detention, for example, liberty, the principle that criminal behaviour must be defined by reference to behaviour rather than the condition or character of the accused, and the presumption of innocence. The possible justifications for breaches of constitutional rights or principles are explored.
As I mentioned to the House when we discussed another Private Members' Bill on bail some months ago, there is an absolutist view that no person should be held in custody prior to conviction, but however liberal our bail laws might be, the fact is that as things stand we do not have that absolutist situation in our law. The courts may refuse bail to a person who is unlikely to turn up for trial or will attempt to pervert the course of justice. I believe most people would support that approach as a minimum but that does involve the courts imprisoning someone who may or may not be guilty of a crime and doing so on the basis of a view of the likely behaviour of someone if he or she were released on bail.
Essentially what is at issue is whether society should reserve the right to protect itself by providing for a situation where a person is deprived of his or her liberty awaiting trial because of a fear that the person involved will commit further offences if released. It is a difficult question of balancing competing rights but I have already made it clear that my approach is to devise proposals that will tilt that balance towards the victims of crime. It is, of course, the case that, with whatever changes might be made, it will be a matter for the courts to decide on the merits of a particular case.
To return to the Law Reform Commission's report, its final chapter lists a number of possible measures under the heading “Alternative Methods of Dealing with Bail Offending”. I will, of course, need some time to consider these but I think that it is fair to say that it would be to misread the report to suggest that these measures must be an  alternative to an amendment to the Constitution. They could, in practice, be complementary to a change in the Constitution. I should mention too that many of these measures are not new suggestions and the commission holds out little hope in relation to their likely effectiveness.
I hope that what I have had to say has done justice to the broad thrust of the commission's report but the House will appreciate that it is a lengthy and detailed document which deserves careful study by all of us.
There are a couple of general points I should make at this stage. As I mentioned earlier, a Courts and Court Officers Bill is being prepared and will be before the House this session. An interdepartmental committee is looking at the impact on prison places of the decision to defer the Castlerea prison project and must report by the end of December 1995.
While it is the case that the report does not consider in detail what specific approach might be taken to the actual wording of a possible amendment to the Constitution, clearly a report that represents what is probably the most detailed analysis ever carried out of our law on bail would form an important backdrop to the formulation of a constitutional amendment. That is why for Deputy O'Donoghue to proceed with this Bill without having had a chance to examine the commission's report is, if I may say so, inappropriate and ill-advised. It is important that we get proposals in this area right and that is why, unlike the Deputy, I and the Government will fully consider what the Law Reform Commission had to say before finalising our approach to this matter. With all the attendant difficulties associated with amendments to our Constitution, it is essential, and it is my responsibility, that, in any proposals I put to the Government, I am satisfied they are fully thought through and will deal as effectively as possible with the heart of the matter, that is, the prevention as far as possible of crime committed by persons on bail.
 It should be clear to everyone that the task of devising an appropriate wording of a constitutional amendment is fraught with difficulty and one in relation to bail which carries with it its own complexities. A key issue which obviously arises in assessing any form of wording is an assessment of its likely practical effect on the courts deciding whether to grant or refuse bail.
What is termed a right to bail is not a constitutional right but a recognition by the courts that a person presumed to be innocent shall not have his liberty interfered with unnecessarily pending his trial on a criminal charge.
For all practical purposes this might be seen as a distinction without a difference because in reality the granting of bail is the means whereby the right to liberty is not interfered with unnecessarily.
I mention this point in the context of formulating a wording of an amendment to the Constitution because we would have to assess what balance the court would decide on between the fundamental right to liberty enshrined in the Constitution and an amendment, one effect of which would be to allow the court, in considering whether to grant bail, to take into account the likelihood or probability of the commission of further offences.
Any amendment will be balanced against already existing constitutional rights and it is in that context that the likely effect of Deputy O'Donoghue's suggested amendment has to be judged. On the face of it, that amendment would not require a court to do anything. So, if we accepted this Bill we would be asking a court to place on the scales on the one hand the fundamental right to liberty already enshrined in the  Constitution and on the other a provision of the Constitution which allows, but no more than that, a court to refuse bail in particular circumstances.
I accept that there are complexities involved and in particular the point might not be met by simply substituting the word “shall” for “may”, but I think that the manner in which this amendment seeks to address the issue could give rise to considerable difficulties in practice. Not the least of these would be the likely impossibility of making an assessment of the impact of the amendment on other elements of our custodial — non-custodial system, such as prison places, the Probation and Welfare Service, post-prison care, the courts and judges. We would have to have an exactitude so that we could make the necessary plans for the implications of passing such a referendum.
This brings me to the related difficulty of the use of the concept of indictable offences. While the descriptions “indictable offences” and “non-indictable offences” might be reasonable legal shorthand to distinguish as a rule of thumb between serious and minor offences, drawing that distinction in a constitutional amendment could give rise to considerable difficulty both as a matter of law and practice. Most offences that are created now are triable either way, on indictment or summarily, and it is not clear how these would be categorised under the proposed wording. The distinction between indictable and non-indictable can exist for historical reasons rather than reflect current realities. We have to be mindful too that there is a vast range of indictable offences and often what might technically be an indictable offence could represent a relatively less serious form of crime.
I think that many of us would take the view that we are not interested in bringing about a fundamental change in  the bail regime for offenders who do not represent a significant threat to the community and, broadly speaking, we want to go after those where there is a substantial risk of the commission of serious offences. I am not satisfied that Deputy O'Donoghue's amendment would achieve that.
The second part of the proposed amendment is incidental to the first and I do not propose to dwell on it other than to say it is, at the very least, ambiguous in that it is not clear whether what is at issue is that there should be a limit of 90 days in total on the period to be spent in custody on remand, or that a court can make any number of remands into custody once, on each occasion, they do not specify a period greater than 90 days.
There are two further difficulties with the proposed amendment that are worth mentioning. First, the amendment seeks to change Article 40 of the Constitution. This no doubt arises because it is essentially the rights conferred by that Article that gave rise to the O'Callaghan decision, but what the amendment seeks to do is regulate the manner in which the courts deal with persons charged with offences. Article 38 of the Constitution deals with the “Trial of Offences” and, in those circumstances, an amendment dealing with bail might more properly be made to that Article. Arguably, not only has Deputy O'Donoghue brought forward his amendment at the wrong time — certainly too early — but he is putting it in the wrong place.
Second, the amendment may be open to the interpretation that the only grounds for refusing bail would relate to the possibility of the commission of further offences. If that were to be the case it would actually exclude the present grounds for refusing bail, namely, the likelihood that the accused will not turn up for trial or will interfere with witnesses. I appreciate that this would not be the Deputy's intention but what we have to concern ourselves with is the actual wording of the amendment he has put forward.
 I hope it will be clear from what I have said that to proceed with Deputy O'Donoghue's amendment would be both untimely and unsafe. I appreciate the Deputy's objective in bringing forward this Bill and I believe this House is not seriously divided on the issue of reforming our bail laws.
There is one general point which it might be helpful to make. As I indicated earlier, the Law Reform Commission mentioned that we are unusual, in international terms, in having failed to introduce comprehensive bail legislation in recent decades. I suspect — and there is a former Minister for Justice here who might be able to clarify the position — one of the reasons is that successive Governments could see no significant advantage in introducing bail legislation in the constitutional context of the O'Callaghan decision.
My Department is considering whether some combination of constitutional and legislative change would be the most effective way to proceed. Such an approach might prove beneficial in dealing with the type of difficulties which arise with the amendment in the Bill before us and may allow me to bring about much needed change more effectively than a single action approach.
I regard tackling the problems of our bail laws as a matter of priority. There will be no undue delay, now that we have the commission's report, before I submit my proposals to Government. I would seriously suggest that Deputy O'Donoghue should withdraw the Bill and allow time for this report to be fully considered.
I understand Deputy O'Donoghue's objective in bringing forward this legislation but, on consideration, I hope he will see the need for this report to be studied so that together we can ensure that any changes we bring about in our Constitution or laws will be effective in dealing with the heart of the matter, that is to reduce and, if possible, remove the possibility of offenders committing offences while out on bail. As I said, I have perceived no great division in this House on that point.
Mr. B. O'Keeffe: I commend Deputy O'Donoghue for introducing this Bill which is timely and has been demanded by the people. However, I am extremely disappointed with the early part of the Minister's speech and the way in which she tried to misinterpret the tabling of this Bill in the House. How can she suggest, with any sincerity and honesty, that Deputy O'Donoghue used this occasion when the commission report was published? The foreward to the report states quite clearly that:
While this report is being considered in the relevant Government Departments, the Attorney General has requested the Commission to make it available to the public in the form of this report at this stage so as to enable informed comments or suggestions to be made by persons or bodies with special knowledge of the subject to the said relevant Departments.
Mr. B. O'Keeffe: How can the Minister say with any credibility, given that this report was submitted to the Attorney General on 17 August 1995, that Deputy O'Donoghue was using this occasion to usurp the commission?
Mrs. Owen: On a point of order, there is an imputation that this report was hanging around without being published. I have no jurisdiction over this report whatsoever. The normal procedures were followed. The report was sent to the Attorney General's Office in draft form; it was then cleared for publication and published today. I did not make an imputation that Deputy O'Donoghue brought——
Mr. B. O'Keeffe: Basically, what the Minister stated to the House is incorrect. The Attorney General is a member of the Government and, therefore, I can only conclude that it was expedient for the Government to publish this report on the very day on which Deputy O'Donoghue tabled this Bill.
Mrs. Owen: Normal procedure dictates that if civil servants or others who are not here to defend themselves are being maligned or defamed, you must protect them. The imputation of Deputy Batt O'Keeffe's allegations is that the Law Reform Commission held up that report.
Mrs. Owen: I will withdraw the last part of that remark, but you must protect the members of the Law Reform Commission, who are not here to defend themselves, from imputation of dishonesty by the speaker. It is disgraceful.
Mr. B. O'Keeffe: The Attorney General is a member of the Government and this report clearly states that the Attorney General asked the Law Reform Commission to publish it. The report is published on the same day that Deputy O'Donoghue introduced his Bill in the House. If that is not expediency on behalf of the Government, I can only conclude——
We are concerned that the law does not protect innocent victims. People are traumatised in their homes, businesses and on the streets. They would welcome any move to change the balance of justice in their favour. They become frustrated when further offences are committed by habitual offenders or by people who are allowed out on bail. People want the scales of justice rebalanced so that innocent people do not continue to feel helpless and unprotected and to become the victims of crime.
Deputy O'Donoghue's Bill acknowledges the revolving door syndrome in prisons in that people are coming out of prisons before their time and becoming involved in crime. It also acknowledges that our bail laws are inadequate and that while we must protect civil liberties, we can go only so far.
I ask the Minister to consider the Garda Síochána's call over the past number of months for action to be taken on the bail laws. It is demoralising for the gardaí if criminals, whom they have pursued and brought for prosecution, are allowed back on the streets because they must then apprehend them again. They want to know what will happen in this regard. This leads to a loss of confidence in and respect for the law  and for those whose duty it is to implement it. The public are also frustrated about this situation. The Bill is trying to address this issue, to give people hope and to bring back their respect for our laws.
It is interesting that the report does not recommend a referendum on bail. The Minister publicly acknowledged the necessity for such a referendum. She had difficulties with other members of the Government because she did not consult the king. Deputy O'Donoghue has afforded the Minister the opportunity to gather support in her party and in the Government for a referendum on the bail laws.
Is there a contradiction in the report because it states that stringent bail laws will add to the accommodation problem in prisons? While we accept that a person is innocent until proven guilty, convictions are obtained in a majority of cases brought before the courts. If, as the Law Reform Commission states, these convictions are made more quickly than before, there will be a greater demand for prison spaces. On the one hand, the report states that people should be brought before the courts more quickly but, on the other, it points out that prison spaces cost money. The report cannot have it both ways. If people are brought before the courts more quickly than before, then more demands will be made on the prison services. This means more money must be provided for additional judges and backup services.
Mr. Doherty: We can all say with absolute sincerity that we are concerned about any legislation which restricts or curtails public freedom and the liberty we enjoy in this democracy. However, it has been acknowledged by our spokesman, Deputy O'Donoghue, the leader of our party and our members throughout the country that the level of criminal  activity has reached crisis point and warrants a serious response.
I do not envy the Minister for Justice her task in tackling the crime problem. I hope she will get the support of her Government colleagues in the pursuit of her aspiration to deal effectively with crime. I do not think it is singularly the responsibility of a particular Minister but, at the same time, it is the specific responsibility of that Minister to forcefully and effectively communicate the extent of the crisis that prevails and ensure that the necessary responses will be forthcoming. We have not seen much evidence of that in the last 12 months.
Criminal activity now poses a greater threat to society and individuals than the Northern Ireland troubles prior to the peace process. Dublin has been under considerable threat for years. That threat has grown out of all proportion and people are now so afraid for their personal safety that they will not engage in the ordinary recreational activity of walking the streets of Dublin in the late evening for fear of assault or attack. This is the horrific position in which people find themselves. The threat which has been present in Dublin for years is now casting a shadow over the rest of the country, particularly rural Ireland. People are moving out of the cities in stolen cars, engaging in crime and robbing small shops, factories, filling stations, pubs and homes. Every few days we hear of loss of life; there have been three or four killings in the last fortnight.
This is an unacceptable level of criminal activity and this House should support anybody who is pursuing an assault on these people. Deputy O'Donoghue must be commended for recognising that the gloves must be taken off where these people are concerned. The last thing we want to do is sacrifice, for this generation or future generations, the enjoyment that liberty brings. However, we cannot tolerate a situation that threatens society as a whole.
The Fifteenth Amendment of the Constitution (No. 2) Bill is before the  House at the moment. The circumstances which obtain in that context differ from those which apply to the need for a referendum on bail. In the latter case, there is a public demand for changes in the bail laws which includes a demand from the gardaí and others working at the coal-face of the crisis. There is also a public intention to overwhelmingly support any such change in the Constitution. Finally, any such change would be for the common good. These three basic essential prerequisites to a referendum are all evident, acknowledged and recognised. They can be observed by every Member who experiences contact with the general public. In this circumstance, however, we are not getting a referendum.
I accept the Law Reform Commission's report. The former Minister for Justice was wise to recognise its importance. She commissioned it because there are essential elements which should be available to Government when it makes a final decision. However, there is an urgency which cannot be ignored. The Minister made the point that previous Ministers for Justice did not engage in serious reform of the criminal code and that is true. The circumstances which obtained when I was Minister for Justice were different from the unfortunate circumstances which confront the current Minister.
Mr. Doherty: When I entered the House, there were 66,000 people unemployed; today the figure is almost 300,000. The social impact of unemployment on homes and the people of this country can only be measured in the holocaustal crime problem that obtains at the moment. When I came into this House 18 years ago there were no drug related difficulties such as those we experience today where 80 per cent of all crime committed is as a result of the  use and abuse of drugs. The current circumstances warrant serious responses which were not required in the past.
The Minister will not accept the legislation proposed by Deputy O'Donoghue and the numbers will ensure that. If that is the case, she should, as a matter of extreme and grave urgency, take the necessary steps to ensure that what has to be achieved will be achieved. One simple method in the immediate future would be to ensure sanction for the high security, 150 cell prison in Castlerea. It is almost 8.30 p.m. but I could not let the Minister go without this reminder.
Mr. Doherty: Unfortunately, the Minister was absent from the Cabinet when she was shafted. Since then, she has had an opportunity to recognise the importance of the facility. I have no doubt that it would be filled over and over again. There are other things I would like to say, some of which might even be complimentary, but I must give way to my colleague Deputy Callely. He will give the Minister an up-to-date picture of the crisis that prevails in this city on an hourly basis.
Mr. Callely: I congratulate our spokesman on Justice, Deputy O'Donoghue, on introducing the Bill. I want to refer to the ambiguity in the exchange between Deputy O'Keeffe and the Minister earlier. My understanding is that the Law Reform Commission report was published today. The timing is questionable, particularly in light of the fact that those who gave the authority for issuing the report were aware that this Private Members' Bill was being discussed today.
Mr. Callely: We are experiencing an unprecedented crime wave. The Government is seen to be soft on crime and lacking any clear policy on crime. It is a crazy situation where convicted criminals are given temporary release or released on bail and it takes in excess of a year for them to come to trial. There is a clear and simple message which the Minister should give to criminals: if a person commits a crime, he or she goes directly to jail.
Mr. Callely: If they are convicted by the courts of course; I accept that. This is a great opportunity to tackle the serious escalation of crime, whether it be violent or drug related crime or any one of the 100,000 indictable crimes committed on a yearly basis. As a northsider like myself, the Minister is fully aware of the seriousness of crime, not alone on the north side of the city but on a citywide basis, and of the public perception and the public concern in this regard.
The Minister has indicated in the past her desire to have a referendum on bail. Here is an opportunity for her to grasp the nettle. She has indicated that there will be no undue delay. I ask her to reconsider what she said here and to read the Law Reform Commission's report, which has no reference to referenda. It is up to her to take the opportunities that present themselves.
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