Private Members' Business. - An Bille um an gCúigiú Leasú Déag ar an mBunreacht, 1995: An Dara Céim (Atógáil). Fifteenth Amendment of the Constitution Bill, 1995: Second Stage (Resumed).

Wednesday, 4 October 1995

Dáil Éireann Debate
Vol. 456 No. 4

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Atairgeadh an cheist: “Go léifear an Bille an Dara Uair.”

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

An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  Deputy John Browne in possession.

Mr. D. McDowell: Information on Derek McDowell  Zoom on Derek McDowell  I understand Deputy Browne is indisposed and not in a position to continue his contribution. With the agreement of the House I would like to continue.

An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  Do you have the Deputy's permission?

Mr. D. McDowell: Information on Derek McDowell  Zoom on Derek McDowell  Yes. With the agreement of the House I wish to share time with Deputies Liam Burke and Kathleen Lynch.

An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  I am sure that is satisfactory and agreed.

[1134]Mr. D. McDowell: Information on Derek McDowell  Zoom on Derek McDowell  I can easily understand the reason Bills of this kind come before the House. As a Deputy representing an urban constituency I am aware, as are my colleagues, of the cancer, that is, crime, in our community. I also understand that the issue of crime and how to deal with it is a complex one. As with all complex problems we are sometimes more inclined to seek the quick simple solutions rather than properly considered ones which will have deeper and longer lasting effects. Along with many colleagues, I have attended meetings of communities where the issue of crime has been discussed. We must be aware of the crying need of people to deal with this problem. They want to see action taken by the Legislature and the Minister and obviously it is appropriate that we should respond in a considered way rather than in a kneejerk fashion.

I suspect there is a danger of throwing out the baby with the bath water. Our legal system and, for that matter, our concept of democracy, rest on the presumption of innocence for the accused. In the words of the Supreme Court, punishment starts with conviction, not beforehand. To deny people bail on the recommendation of the Garda treads on this concept. In France and Italy and many other mainland European jurisdictions, upwards of 40 per cent of people in prison have not been convicted of any offence. We will be aware from our experience of Irish prisoners abroad that many prisoners spend a lengthy period on remand before they come to court in the first instance. This is a scenario we would do well to study before going down this road.

There are other realities we cannot ignore. Our prisons are already full. Those who continually call for support for the Garda Síochána, as we all do, should not forget that the revolving door syndrome deeply affects morale. That is not surprising. There can be scarcely anything more debilitating for the Garda, or individual gardaí, than to arrest and successfully convict a person over a period in court and to find that [1135] after a six months sentence they are out on the streets again within three weeks. I suspect that if the thrust of this proposal were to be adopted, without the allocation of huge extra resources — I stress that point — the revolving door might well become a spinning door.

I confess I am cynical about proposals to provide for extra spaces in prisons and, indeed, extra prisons. It is probably like road building. The more roads one builds the greater the number of cars on them. I have a suspicion that the same would apply to jails: the more we have, the more we fill. I accept that the accommodation in our prisons is not adequate. We will have to provide more places but we should not pretend to ourselves that that in itself will be sufficient to resolve our crime problems. As I said earlier, quick and easy solutions are easy to articulate; they are much more difficult to put in place. To quote my Labour colleague in Britain, Tony Blair, the leader of the Labour Party, there is no point just being tough on crime; we also have to be tough on the causes of crime. We would do well to look to Britain to appreciate their experience. Their laws on bail are more stringent than ours. The rate of offending while out on bail is also higher than ours.

Having said that I want to be positive. I accept there is some merit in the proposal put by Deputy O'Donoghue and there are other measures which could usefully be taken. Unquestionably our courts system needs to be speeded up. If we are to allow people out on bail, as we do at present, we should also reduce the length of time they are waiting to be tried. In that context, I welcome the recent announcement by the Minister that up to 17 extra judges will be appointed. Nevertheless, as the new legal term commences, it is clear a great deal more needs to be done.

In order to relieve the pressure of the burgeoning prison population, further development and expansion of non custodial sentences has to be considered. A good example is the community service [1136] orders, introduced by this House some years ago. Sadly, that system has never been properly resourced. In order to work properly it clearly needs considerable extra resources to be provided for the Probation and Welfare Service which supervises it. There is no point in providing that somebody should carry out a community service if there is nobody to supervise the carrying out of that service or if nobody looks at what service needs to be done.

The whole area of juvenile justice was discussed by a Dáil committee, under the chairmanship of Deputy Quill, which produced an excellent report that was debated in the House over two years ago. Included among the recommendations in that report are many measures, of a punitive nature, which can be taken, short of custodial sentences. I share the disappointment of other Deputies that that legislation has not yet reached us.

There are also specific measures in relation to bail which could be of assistance in addressing the problem. As the Law Reform Commission report points out, the measures provided under the Criminal Justice Act, 1984, have never been properly used or used to the full, specifically the measures in relation to consecutive prison sentences, which had a significant effect when first introduced in the mid-1980s, but seem to be less effective now. The suggestion in the commission's report is that this is largely because of the way it has been interpreted in recent years by the courts. Forfeiting of bail is not being used as widely as it should be. I appreciate that both measures present some difficulty but we must look to rigorous implementation.

In regard to the point made in this Bill, I would have been one of those who, until recently, would have said we should jealously guard our civil libertarian record and that we should not make any amendment to the bail laws. I confess I have changed my mind and having examined it carefully I believe there are certain limited circumstances where we should increase the powers of [1137] the courts to refuse bail. The courts should be entitled to refuse bail where an individual applying for bail has already reoffended while on bail. In doing that we would limit the individual's rights based on past experience rather than speculation as to what they might do in the future. I do not know whether that would require a constitutional amendment. If so, it is something we should consider. There is also a case to be made for refusing bail to somebody who, because of an obvious drugs dependency problem, is extremely likely to reoffend while on bail. That will have to be considered.

The Minister is right when he says we need more time to consider the implications of the Law Reform Commission report before putting any proposal to the people or enacting legislation. This is the second time in a calendar year that we have discussed the issue of bail. In both cases the proposers of the legislation knew we were awaiting the Law Reform Commission report. In this case the proposal emanates from a colleague of a Minister who first initiated the commission's involvement in the issue. A cynic could argue that this has as much to do with seeking political capital from the crime issue as with trying to find a workable solution.

There is little point in having a Law Reform Commission if we are not prepared to give it the courtesy of considering its findings. The report is an extensive one. It addresses how other common law jurisdictions dealt with the issue of bail. Unquestionably, our current regime is among the most liberal. It is interesting to note that some countries, such as Australia, which have gone furthest in tightening their bail laws are now considering liberalising them again.

Our experience in the mid-1980s is interesting. Then, as now, we were in the middle of a drugs epidemic. The Criminal Justice Act, 1984, had limited success in reducing the level of crime committed by persons while on bail. This problem, like our drugs problem, has returned. Last year there was an increase of about 40 per cent in the [1138] number of crimes committed by people on bail. As the Minister has rightly pointed out, stringent anti-drug legislation has recently been proposed and will, no doubt, soon be considered. If, as in the early 1980s, we bring our drugs problem under control, we may well see a reduction in the number of offences committed on bail. The connection is obvious and widely acknowledged by the public.

I do not doubt that we would have little difficulty passing this proposed amendment or a similar one if it was put to the people as there is widespread support both inside this House and among the general public for changes in the bail laws. To do so now, however, would be to neglect our duty as legislators, that is to analyse and legislate for the best options open to us. Clearly we are not yet at that stage.

Mr. L. Burke: Information on Liam Burke  Zoom on Liam Burke  I can understand the positive motivation of the Fianna Fáil Party to bring forward this welcome Bill. However, the Minister for Justice requires more time to study a report on bail from the Law Reform Commission. This is understandable and very necessary.

I wish to concentrate on an aspect of law and order that is causing great distress to the vast majority of my Cork constituents. When I spoke some time ago on drugs and drug related crime I was subjected to many abusive phone calls from people associated with the distribution of drugs. It is a sad day when a public representative cannot speak his mind on the scourge of drugs. The misuse of drugs especially by young people concerns me greatly. The drug barons and their pushers have made determined efforts to control the youth. This should not surprise us, given the rich pickings from drug trafficking. One speaks out at one's peril against these people and their trade, as I can attest. I know how bad the position in Cork is, so bad that I am reminded of it at my clinics each week.

We have to do something about what I would describe as the urban terrorism [1139] of the drugs racket. The facts are straightforward. Drug pushers ensnare the very young at school, often giving them free samples until they are hooked. To feed this habit requires up to £150 per day, a sum not even a well to do family could afford. This daily expense is recovered through crime, muggings, aggravated assaults, house breaking and so on. It is estimated that 85 per cent of crime committed today is drug related and I would not dispute that. Our society has the fester of a drugs culture that is almost engulfing us. We have to get to the root of this cancer and cut it out. We do so by taking the big stick to the drug lords and their followers. I believe we are operating against them with one hand tied behind our backs.

Every member of the security forces should be engaged in the fight against the drug barons who are in effect combating the very authority of the State. If this means using the Army and its vast intelligence resource, so be it. In a time of crisis no garda should be delivering summonses, writing out parking tickets or engaged in routine jobs while a major problem of drugs threatens us all. We must show these drug criminals that we mean business in a dramatic way.

It is acknowledge that the drugs detection rate is getting better. There have been notable successes but they do not go far enough. The modern day Al Capones of this world are getting fat on their ill gotten gains. They and their families will not, of course, touch the deadly stuff, knowing the problems that will inevitably follow. In their smug protective comfort they wheel and deal in death and threaten with deadly consequences those who would expose them. We are fighting a war in every city, town and village and anyone who believes otherwise is living in a fool's paradise.

I represent a largely deprived area, parts of which have exceptionally high unemployment and are ripe for exploitation. The drugs problem is not only a city phenomenon but towns and rural [1140] communities suffer in the same way. I know one small place where pushers were driven out with hurley sticks by an enraged community. It was home brewed justice. How could one blame those fathers whose children had been damaged in the most unimaginable way? The lessons of the past should be the springboard to launch an all out offensive against drugs and that means sparing nothing in resources and manpower.

There should also be a new awareness programme about the drugs culture that has taken hold here and elsewhere. Young people and teenagers are at risk and should receive the highest priority in any education campaign. I know a great deal has been achieved in this regard but we need to do more. The worst sight of all is to see a person under the influence of drugs, a sight that is becoming all too common. The price the family and the person has to pay for this addiction is horrendous in the extreme and the price society pays is no less damaging.

We stand on the threshold and what we decide now will determine the future of our society. Is it to be one poisoned by drugs and its dreadful fall out or a society free from the ravages of a sub culture that is eating away at all the principles we hold so dear? That is the challenge that faces us all and it cannot be swept aside. If we are to pass on our Irish culture and all we hold dear to succeeding generations we had better defeat the importation of illegal drugs and put the drug barons and pushers in a place where they belong, prison. How does one describe the person who pulls the strings of the deadly drugs trade — he or she is nothing but a slave trader. How does one describe a person who ruins life as casually as one goes for a walk — a terrorist with a lot of blood on his hands. Perhaps one passes on the street without recognising them the cowardly fat cats drooling on their ill gotten gains. We must concentrate on stopping them and cutting them off from their supply. By putting the drugs [1141] problem under tight wraps we effectively will find solutions to many of the criminal and social problems affecting our country.

Kathleen Lynch: Information on Kathleen Lynch  Zoom on Kathleen Lynch  I appreciate the opportunity to speak on this fundamental issue and I recognise the wide divergence of views. It is very wrong to hold out the promise of a solution which is false because it will not redress the problem it hopes to address. False hope is worse than having no hope at all. In times of crisis there is always the temptation to seek a quick fix solution and there is no doubt we are currently facing a law and order crisis which threatens to undermine society. I do not believe that the introduction of preventive detention will address the root causes of social breakdown and I do not believe that it will satisfactorily address the symptoms.

Last week the Law Reform Commission published an examination of the law on bail. While it was not mandated to make specific recommendations, its findings should be of concern to those who see restrictions on bail as a panacea for all our ills. Any move to further restrict bail would undermine the presumption of innocence which is at the heart of our legal system. If a constitutional amendment along the lines proposed by Fianna Fáil and endorsed by other elements of the political establishment were put to the people and passed it would result in the introduction of preventative detention. I accept the spirit behind the introduction of this Fianna Fáil Bill, but that does not take from its effect.

Under the Fianna Fáil Bill any person charged with an offence could be remanded in custody if the judge is satisfied, “that there is a probability that the person will commit a class of criminal offence ... if admitted to bail”. Eleven years ago Members of Dáil Éireann debated our bail provisions at some length prior to the passage of the Criminal Justice Bill, 1994. That Act contains several provisions relating to offences committed while on bail. Eleven years on, those provisions have [1142] had little effect on the number of crimes committed by people on bail. The latest figures show that under 3,000 indictable offences were committed by persons on bail last year. That is around 9 per cent of detected offences as against 10 per cent for the previous year.

There is no doubt that our bail laws are being abused, but to what extent is the abuse of bail a significant factor in the mounting crime figures, and to what extent have we latched on to the issue of bail as an easy answer? The rate of offences committed by people on bail has stabilised at around 9 to 10 per cent, yet in England, which has far tighter bail restrictions, the rate is about 17 per cent. We should bear that in mind, because we like to quote statistics from England in connection with all our other ills but refuse to recognise statistics such as those I quoted. The objective evidence is that restricting bail has little effect in crime figures. It is also true that those intending to abuse their bail have plenty of time to do so.

Spiralling crime rates, together with a shortage of judges and cumbersome legal procedures have led to increasing delays between a person being charged with an offence and the case reaching trial. It can take anything up to two years to get a person to court. Two years in preventive detention or out on bail is a very long time. Reducing these delays would go a long way towards cutting the number of crimes committed by people on bail because they would have less time to reoffend while on bail. If we do not reduce the delays the net effect of restricting bail will be simply to consign large numbers of people to indefinite detention in preventive custody pending trial. We will have sacrificed one of our most fundamental liberties, and what will we have gained in return? The evidence does not indicate that our streets will be significantly safer as a result.

The so-called revolving door syndrome has had a far greater impact on crime figures than the availability of bail. This is caused to a large extent by the lack of prison spaces, but we have not yet addressed the central issue of [1143] how we use available prison space. Are the right people receiving custodial sentences? In reply to a Dáil question earlier this year the Minister for Justice informed me that in 1992, the most recent year for which figures are available, 1,665 people were imprisoned for civil debt or the non-payment of fines. How many places would have been created by the building of a prison at Castlerea?

In reply to another question I was told that the average amount owed by people imprisoned for civil debt or non-payment of fines was about £761. The sentences ranged from five to 90 days and, in the case of debt, no remission of sentence is allowed, regardless of any extenuating circumstances. It is absurd that debtors should be taking up scarce prison places while violent criminals are freed due to lack of prison accommodation. It is equally absurd that we should be paying between £600 and £700 a week to imprison people for what may be relatively insignificant offences. In many cases people fail to comply with a court order to pay a civil debt or a fine simply because they cannot afford to do so. In such cases an alternative method of payment, for example, budget instalments, should be worked out.

Since 1992 the situation has been further exacerbated by restrictions on the powers of the Minister for Justice to reduce fines. Where a person can afford to pay but refuses to do so, community service orders would be a more appropriate sanction than imprisonment. The Government is committed to ending imprisonment for civil debt and non-payment of fines where practicable. I hope this will be given the urgent attention we seem to be giving other issues. The revolving door syndrome must be ended, and the release of persons from prison must be part of a pre-planned process. In this regard I hope the Minister will examine the establishment of a parole board. I am sure she must be sick of hearing me say it, but it is indicated in the Programme for Government, and [1144] it would go a long way towards putting order on the release of persons back into the community.

Offenders must come to realise that, when sentenced, they will serve their time. By the same token, all persons must be presumed innocent until they have been convicted of a crime, and they must be assured that their basic freedoms will be vindicated.

It is significant that the Fianna Fáil amendment is proposed as a codicil to Article 40.1 of the Constitution, modifying the statement that “all citizens shall, as human persons, be held equal before the law”. That statement is an implicit and explicit recognition of equality. It is the bedrock on which our Constitution rests, and any attempt to undermine that statement of equality undermines all our rights.

In an era of spiralling crime rates we are forced to weight individual liberties against the public good, but there is no evidence that the introduction of preventive custody would have any effect on the crime rates. In the absence of such evidence I am not prepared to endorse any further restrictions on the granting of bail.

An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  I call on Deputy Kenneally. There is an indication of a sharing of time with the Progressive Democrats Party.

Mr. Kenneally: Information on Brendan Kenneally  Zoom on Brendan Kenneally  That party's members are not present. Initially, I would like to share my time with Deputies Liam Fitzgerald and Foley.

I welcome the opportunity to speak on this important Bill. When I speak in this House I always try to treat the subject before us in a realistic fashion. I will do no less when speaking of the need to restrict the granting of bail by the courts because it is a sensible course of action to take. Many people who have been granted bail have gone on to further offend for a variety of reasons. These may include further crimes of robbery or larceny to provide for a family before being sent to jail. This was anticipated [1145] by Mr. Justice Murnaghan in his landmark judgment in the O'Callaghan case when he said: “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”. It is interesting to read in the Law Reform Commission report that there is a provision for giving tougher sentences to people who commit crimes while on bail. For some unknown reason that does not appear to be happening. This element is one of the central planks for the limitation of bail and should be understood and accepted by everyone.

The Government has turned tail on this issue and the public should be made aware that while the Minister knows and accepts — at least she did last spring — that a change in our bail laws is necessary and desirable, she is either unwilling or incapable of doing anything about it. We all remember the Minister's about-face on this issue and it is not difficult to know from where the pressure came to change her mind. It is regrettable that, while the Minister and the other members of the Government drive around in a protected environment and some even enjoy a well guarded home, many others in this city and elsewhere are afraid to close their eyes through fear of attack. Worse still, people are even afraid to stop at traffic lights for fear of being robbed in that short time and in broad daylight.

The increasing drug problem is a major factor. I am not laying all the blame for this at the Minister's door or that of the Government, but it must be realised that there is a drug problem, that people rob to feed that habit and irrespective of whether they are on bail, as long as they are at liberty they will have to rob to pay for their drugs. Those people must be taken out of circulation. It is the ramblings of the irresponsible that would suggest they should be set free after arrest and charge when they do not have the capacity to stay out of trouble because of their dependence [1146] on drugs. There must be a reasonable likelihood that they will reoffend and that alone would give rise to the reservations expressed by Mr. Justice Walsh, also in the O'Callaghan case, when he stated:

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.

As my colleague, Deputy O'Donoghue, pointed out last week his proposal is not radical and would only broadly bring our bail laws into line with those in Great Britain. It should be noted that it is up to judges to deny bail if they believe that is necessary. Would it not be kinder to retain in custody those with a drug dependency and commence a programme of detoxification and rehabilitation to get them out of the clutches of the drug dealers? Even drug addicts would agree with that.

Not all crimes are committed by people on bail pending trial but there is incontrovertible evidence to show that as much as one-quarter of all serious crime is committed by people while on bail. It is ludicrous not to do something about this, insensitive in the extreme to people who huddle in their homes at night for fear of attack and an abandonment of our responsibility and duty to legislate for all the people.

It is interesting to note that the recent Law Reform Commission report on bail, quite rightly, put forward the notion that bail is a privilege, a respite for an accused before his or her trial and that offending during that period is a breach of that privilege. According to that argument, the accused who is charged is more often than not guilty and the delays in the system prevent this from being established and a sentence imposed immediately. Thus, when such offenders offend they do so in a period of liberty to which they are not really entitled but which is granted to them as [1147] a concession. This argument appears to have particular force where an offender is caught red-handed or the evidence appears overwhelming. In such cases, trial appears to be a formality.

One must also reflect on the psychological effects on the public and the gardaí of the release of an offender. It must damage the morale of gardaí to see an offender recently apprehended for a crime released to commit more crime. They have a sense of futility about their ability to enforce the law with their hands tied behind their backs. It is a natural reaction of the general public to lose confidence in the system when they see known criminals freely roaming the streets, even though they have been charged in respect of one or more offences.

We must have regard for confidence levels in the Garda Síochána and the public generally. It could be argued that public alarm is a valid reason for refusing release. A murder suspect is generally not allowed out on bail on the premise that he or she might abscond from this jurisdiction. Imagine the outcry if some of those people were free pending trial. If we do not respond to people's needs we abdicate our responsibilities and, while I realise it is easier to do nothing than to take courageous and sometimes unpopular decisions, we must be a parliament for all the people at risk from crime. We must be effective leaders.

In proposing these changes to the Constitution and our law, we advocate the withdrawal of liberty only on the order of a judge. In many circumstances it will not be easy to refuse bail. Many of the people whose liberty would be so withdrawn would willingly and without qualm deprive others of their freedom for no reason. If there is a balance to be struck, surely it must take that factor into account.

Those of us who want the bail laws tightened are regularly told we live in the past, have stone age thinking and a regressive outlook. I prefer to believe we live in the age of realism, the age [1148] when the innocent suffer unnecessarily, are imprisoned in their homes when they should be free to come and go as they please and live in fear when they should have security and peace of mind. If anyone is to be discommoded it should be those who have been through the initial process of arrest and charge for indictable offences rather than the innocent. We have lost sight of that in recent years. If the Minister is interested in having a better system of justice that does not unjustly deprive people of their liberty, she must consider a complete overhaul of the criminal justice system, a move I know she will agree is long overdue. This is something we have been trying to do since coming into Opposition.

More judges, better courtrooms and consulting areas would speed up the process and contribute to a more humane environment. Justice delayed is justice denied and the Minister must address the issue of delays in the system, particularly in the traditional holiday period when courts rise and convene only for urgent business. There is no such thing as the five day criminal or a criminal holiday shutdown. For them it is business as usual and the Minister must ensure that court lists are shortened considerably as soon as possible. I stated in the House last May that an effective Garda force, a practical code of criminal law and a logical approach to bail and freedom are all part of what makes life bearable for people in any democracy, particularly those living in urban areas.

I am not advocating the elimination of constitutional freedoms, but the majority of people who walk our streets, drive in our cities and who have to triple lock their doors at night also have constitutional rights and need to be protected from criminals. I do not need to explain that with freedom goes responsibiliy. If people endanger their freedom through involvement in crime they, and not the innocent, should suffer. That is what this Bill is about, it is not a plot to rob people of their legitimate freedom. I support the principle and the letter of [1149] the measure and am pleased that this practical solution to a real problem is being put forward.

Mr. L. Fitzgerald: Information on Liam Fitzgerald  Zoom on Liam Fitzgerald  I welcome the opportunity to contribute and congratulate Deputy O'Donoghue on his work in preparing this and the earlier Bill on bail. Listening to speakers from all sides, it is widely accepted that a fundamental reappraisal of our bail laws is urgently required. Nothing was said to the contrary. In dealing with crime and related matters — I was reminded of this by something Deputy Kenneally said — one is talking about justice not only for the accused, but for all the people. No matter what sensitivities we may have, to a lesser or greater degree, about the curtailment of freedoms and rights under the Constitution and the common law — it seems some people become extremely sensitive when we discuss issues such as this — we have to juxtapose it with the common good and the principle of justice for all.

Given the opportunities they have had in recent weeks, the failure of the Minister for Justice and the Government to give a commitment to hold a referendum on bail is a disgraceful denial of the right of the people to have their voice heard on this issue. In circumstances where crime is escalating out of control and drug abuse is rampant, all the resources of the State must be brought to bear to tackle this frightening development. In 1994, 4,400 detected crimes were committed by persons while on bail. This warrants an immediate response from the Government.

The figures, which have been increasing steadily since 1990, speak for themselves and provide a stark illustration of the criminal's mentality — the blatant and deliberate abuse of the freedom or privilege, as Deputy Kenneally rightly described it — most legal experts concur — afforded to a suspect or an accused by treating our system of justice with utter contempt. We can couch this simple statistic in whatever terms we like and say that it represents only 10 per [1150] cent or 20 per cent of the total number of indictable crimes committed in a particular year, but we cannot get away from the fact that we are faced with a crisis.

Communities in cities, towns and many parts of rural Ireland are under siege. The Minister, who lives on the outskirts of Dublin city where I and many of my colleagues live and work, is well aware that there is a crisis. The basic fundamental and constitutional right of law abiding citizens to security and freedom of movement is constantly being undermined by the godfathers of crime and modern day Al Capones marauding our streets with impunity.

When I say that the necessary measures must be taken to tackle the problem head-on some people challenge me and ask if this means that we should bring out the guns and blow them away; it does not, it means that we should tackle the problem with utter determination and use every resource and facility available to us. If that means invoking the voice of the people, so be it. If we fail to do this quickly, our system of justice will be brought into disrepute among the overwhelming majority to whom we look for support for our institutions and system of justice.

Because of the extremely restrictive conditions for refusing bail laid down by the Supreme Court in the 1966 case, to which Deputy Kenneally referred in detail and the increasing abuse of these restrictions by the criminal, a failure to invoke the voice of the people represents a cyncial disregard for the welfare, well-being and security of our people.

Let me give a stark example. If a person is charged with robbery in a case which does not involve violence, he will be denied bail if there is reason to believe he might not turn up for his trial. However, if a person suspected of being a serial killer is arrested and charged and there is no reason to believe he will not turn up for his trial or interfere with witnesses, the court is compelled to grant him bail despite the fact he is likely to commit another murder while [1151] out on the streets. Surely, this is the embodiment of stupidity of the highest order; our law on bail is an ass.

The Minister recognised this when she pre-empted the findings of the Law Reform Commission and announced that she was prepared to ask the people to amend the law in a referendum. Having publicly acknowledged the problem and having decided to take action I could not challenge her bona fides with any conviction. However, I am convinced that the beseiged public will roundly condemn her partners in Government, the Labour Party and Democratic Left, for the indecent haste with which they scuttled her into a state of paralysis.

Let me give another less sinister, but by no means less serious example. In 1993, well before the Minister took office, two well known hardened criminals went on the rampage while on bail robbing shops, service stations, banks, building societies and supermarkets in my constituency. They were easily identified having been caught frequently on security cameras. In other cases shopkeepers informed me that they and their sons readily identified them as they ran out of their shops, could tell me where they lived, where they had committed other offences and that they were out on bail. On one occasion one of them had the audacity to hire a taxi on the pretext that he wanted to be driven into town to collect his dole. En route he attempted to commit four burglaries — I am aware of four locations where he stopped — pointing out on each occasion to the unsuspecting taxi driver that he had important messages to collect. When apprehended and charged these two criminals were again let out on bail thumbing their noses at the Garda Síochána, their victims and the local community who knew them so well.

We will be informed that consecutive sentences may be imposed for offences committed while on bail, but this is regarded as a sick joke by communities under siege, the victims of crime and all [1152] those who feel they will be the next victim. If the policy of consecutive sentencing is to have any effect, the two gentlemen I described should be removed from society for the rest of their natural lives.

We have been realistic enough to acknowledge that when we talk about changing the law on bail inevitably this will warrant a significant increase in the number of prison spaces. Deputy O'Donoghue admitted that substantial additional funds would be required, but is the well-being and security of our citizens to be deliberately ignored or compromised in the interests of fiscal rectitude? The answer is obvious.

The Minister did not need the report of the Law Reform Commission to state publicly last March where she stood and that she would tackle this crisis. I ask her to come clean and renew her commitment to hold a referendum on bail. The many besieged communities in Dublin and throughout the country will overwhelmingly endorse her action. All in all, given their serious plight, they deserve no less.

We all welcome the report of the Law Reform Commission on bail and have gained valuable insights from its research and analysis. The Minister should not hide behind it and use it as a licence for inaction. If she were to do so in the present climate, she would incur the wrath of decent people in every corner of this city and country.

Other aspects have to be considered. The revolving door syndrome was mentioned. This presents a serious problem which arose because of the lack of prison spaces. Some Deputies have argued that providing additional places is not necessarily the correct thing to do. I do not say it is the final solution but it is part of it. It is regrettable that the Minister's decision to proceed with the Roscommon prison was chopped overnight. We cannot encourage and promote confidence in a system of justice where those who are charged, found guilty and sentenced to prison are let in one door and out the other. That must stop except in cases where we can divert the [1153] guilty to community programmes, preferably in their own areas. Once the judge invokes the option of sending the guilty to prison they should be made to serve their full sentence.

The right to silence is a sensitive issue. Some people say a suspect should not be forced to make a statement. A prominent lawyer, Martin Crotty, BL, who was challenged on the merits or otherwise of removing the right to silence said: “innocent people usually demand the right to speak; persons who are guilty usually invoke the privilege of silence”. That says much about what I think of the right to silence in a number of cases.

The Minister, who is not present tonight, should tell us where she stands and how she interprets the report of the Law Reform Commission. The woolly elaboration of her diffuse views recently did nothing to enlighten us on where she or the Government stand on the issue of bail.

Mr. Foley: Information on Denis Foley  Zoom on Denis Foley  I welcome the opportunity to make a brief contribution on this important issue. I thank Deputies Kenneally and Fitzgerald for sharing their time with me. I congratulate our spokesman on Justice, Deputy O'Donoghue, for introducing the Fifteenth Amendment of the Constitution Bill, 1995. He has proved to be a most effective spokesman on Justice and has adopted a most responsible pursuit of law reform at a time when the level of crime in society is escalating out of all proportion.

Over recent months he made appeal after appeal to the Minister to respond and face up to the current crime explosion. One gets the feeling that the Minister cannot obtain the essential support of her Cabinet colleagues for the measures and plans she considers most important.

We cannot deny that there is a crisis. People are calling for action. In recent weeks in my town of Tralee serious crimes were committed. The people demand action from us as legislators. Every available assistance must be given [1154] to the Garda Síochána no matter what the cost.

We must ask if there is a major policy difference between the three Government parties on the issue of law and order on the one hand and civil liberty on the other. In the interests of openness, transparency and accountability I appeal to the Government to come clean on its plans for tackling the present crime wave, and in particular, ensure that further crime is not committed while the accused is on bail. If there is a problem in the Government parties on this issue then it is not only desirable but essential that the crisis is openly admitted. The escalating crime rate must be faced up to by the Government. Failure to do so will add further to the present problem.

One solution is to extend and increase the number of available prison places and I appeal to the Government to put the legislative and operative changes in place which will allow our citizens to go about their lives without fearing for their personal safety or property.

I compliment Deputy O'Donoghue on his positive approach to the problem. The Government offered him many opportunities for point scoring but he has been most positive with his offer of practical assistance to the Minister which, to date, has not been accepted. One can only hope that for the good of the people the Minister will accept his offer. The proposed changes in the bail laws offer an early opportunity to the Minister in this regard.

It cannot be denied that both the extent and nature of criminal activity in society has been on the increase for a number of years. While the illegal gain of money or property continues to be the focus of most crime the diversity and extent of violent crime against the person has shown a nasty upward turn in recent years. While crimes such as murder, rape, sexual abuse and grievous assault were a rare occurrence in rural areas, one has only to read the daily newspapers to see the massive increase in such crime.

Figures released recently are startling. [1155] There may be as many as 5,000 heroin addicts in Dublin city and it may require in the region of £150 a day to feed an addict's habit. That is approximately £50,000 a year. We should consider the trail of disaster which drug addiction leaves in its wake. Many young people's lives are destroyed both physically and mentally and their aspirations and plans go overboard. The addict's family is upset and the family unit will more than likely break up. The cost of maintaining a drug habit is alarming. If each addict required one victim to steal from each week to feed his or her habit 250,000 crimes would be committed each year and, consequently, there would be the same number of victims.

The Garda are forced to divert scarce resources into dealing with the primary and secondary effects of drug abuse. This immediately takes a certain amount of pressure off non-drug related criminals. Our courts are the next link in the chain of justice to be challenged. A clear consequence is obvious in the increased workload which is being forced through the under staffed court system which leads to unacceptable delays in the processing of individual cases.

The limitations on the granting of bail are dire. The Minister correctly identified this problem soon after assuming office. The recent Law Reform Commission report provides shocking new information on the extent of abuse of our bail laws. The contents of the table on page 36 are particularly alarming. It shows that 36 per cent of the 98,772 reported offences in 1993 resulted in detection. Therefore, two thirds of reported crime goes without redress. The second relevant finding is that 9 per cent of all detected crimes were carried out by people on bail at the time of arrest. This involved a total of 3,201 detected crimes during 1993. Taking into account the 3:1 ratio of reported crime to detected crime it is reasonable to estimate that a staggering 10,000 crimes are committed each year in this State by those on bail. This is equivalent to 30 crimes and 30 victims each day.

[1156] These shocking figures clearly indicate the urgent need for reform in granting bail. Every day's delay will potentially add a further 30 victims to the number. This is equivalent to 210 cases per week and 1,000 each month. I appeal to the Minister, and the Government, to face up to the serious crime level not only in Dublin but throughout rural Ireland.

Minister of State at the Department of Justice (Ms Burton): Information on Austin Currie  Zoom on Austin Currie  I wish to share my time with my colleague. The subject of bail is one which we all know needs to be tackled but anyone who thinks there is a quick fix solution is misleading the public. There is no quick fix solution for any aspects of crime. The problem of crime needs to be addressed in a number of ways, in particular through education, rehabilitation, improvement and reorganisation of the courts. The question of dealing with offences committed while on bail needs to be tackled in a comprehensive and realistic way. We must remind ourselves that people on bail are not convicted; they are innocent until proven guilty.

Last May we debated Deputy O'Donoghue's Criminal Law (Bail) Bill. At that time we were awaiting the Law Reform Commission report on its examination of bail law and the Government gave a commitment that the report would receive prompt consideration. I said on that occasion that the Deputy would be well advised to await the report.

The report has been published and, in the circumstances, it would be sensible to turn our attention to its contents and see how we might set about reforming the law in this area. It would be folly to proceed with any measure of law reform on such a sensitive and difficult subject without giving proper consideration to the commission's report. Indeed, it would amount to a negation of its work. Can anyone seriously suggest that we can have a full and constructive debate on the matter at a time when a detailed report has yet to receive the attention it undoubtedly deserves?

[1157] The Law Reform Commission has done sterling work and it behoves us to study its report carefully. My reading of that report so far reinforces me in my opinion, expressed in the debate last May, that there are no easy answers to the issue of offending while on bail, just as there are no easy answers to the crime problem generally. I might illustrate that point at this stage by outlining very briefly some of the contents of that report.

In considering the extent of the problem of offending on bail, the commission urges caution in trying to extrapolate — from Garda figures available — the overall extent of the problem. On the subject of endeavouring to predict future criminal behaviour — and in the context of this Bill judges will be expected to engage in such prediction by weighing up the possibility of a person released on bail committing further offences — the commission concluded that the results of studies conducted with this aim are discouraging. One section of the report which caused me particular concern was the comment in Chapter 4 — dealing with the law relating to bail in other jurisdictions — that there is concern in many countries about the use of bail on the basis that it discriminates against poor defendants. That brings me back to the point I made in the debate in May last about the need to tackle the underlying causes of our crime problem, about which I shall have more to say later.

Looking at the arguments for and against preventive detention, the report gives very careful consideration to the issue of whether the commission of offences by people on bail warrants a departure from current practices. A central factor here is whether pre-trial detention constitutes some form of punishment. Undoubtedly this would involve, at least, a curtailment of the present constitutional right to liberty and has implications for a primary principle of the criminal law in this country, namely, the presumption of innocence. Pre-trial detention also has serious [1158] implications for an accused person's ability to mount an effective defence to the charges faced.

The report also sets out alternative methods of dealing with bail offending, which are a fairly powerful indication that the issue defies simple solutions. The alternatives explored by the commission are, first, to create a specific offence of breaching bail conditions where one of the conditions of bail is that an accused refrains from offending while on bail or create an actual offence of offending on bail; second, to attach, in addition to the normal conditions of bail, a “good behaviour” condition, a breach of which would lead to detention pending trial on the original charge; third, to estreat bail where the accused commits further offences although the current reluctance of the courts to estreat bail raises serious questions about the viability of this approach. Obviously the position of our courts is governed largely by the social circumstances of many people coming before them and the fact that to estreat bail would undoubtedly cause severe financial hardship on their relatives and-or spouses, a problem we cannot ignore, or the fact that our judges take it into consideration. The fourth alternative explored by the Law Reform Commission was to reduce the length of time a person is at liberty pending trial, which the commission describes as one of the most significant ways in which bail offending could be reduced and, lastly, to strengthen the provisions of the Criminal Justice Act, 1984, regarding consecutive sentences for offences committed while on bail.

Representing a Dublin constituency I am acutely aware of the problem and the whole question of offences committed by drug addicts. We need to examine carefully the nature of such offences, the type of sentences to which they would give rise and whether, if we are unable to reduce the period of time before trial, it might be the case that a person effectively would have served whatever sentence a court might impose before being brought to trial. Equally I [1159] predict that would lead to a severe problem in terms of confidence in our criminal justice system.

While I can understand the argument being advanced in relation to those likely to serve long sentences, for instance for armed robberies or other similar offences, in the case of those likely to be jailed for relatively more petty offences — although undoubtedly the type that cause enormous disruption of the happiness and enjoyment of life of many members of society, particularly in the case of those living in inner city flat blocks — the provisions of this Bill need to be teased out and examined. While I appreciate Deputy O'Donoghue's concern and his desire to act urgently, it is my considered view its provisions must be carefully and thoroughly considered or we might well end up with as many problems created as solved by such amendment. Indeed the points made by the Law Reform Commission in relation to those remedies which are to hand in some form but which, for whatever reason, are not being resorted to at present, warrant serious consideration.

The fact that the Law Reform Commission, after a very careful examination of the subject, sets out a number of methods, each with its drawbacks, of meeting the challenge posed by offenders on bail is a persuasive argument against quick-fix measures which are bound to fail. We should examine closely, in particular, how we could reduce the length of time it takes to bring people to trial. When talking about people's confidence in our criminal justice system, a critical factor is that it can take a very long time within our system to process a case.

The Minister referred to our plans to supply extra resources to the Judiciary. Nonetheless we must also examine the overall question of streamlining the management of our courts, greater effective use of the Garda and of the Director of Public Prosecutions, thus ascertaining how we can reduce the [1160] length of time it takes to bring somebody to trial. Our aim must be to tackle crime in such a manner that we reduce the numbers entering our prisons in the first place. To do so we must first examine the root causes of criminal behaviour which are very complex, in many cases arising from deep-seated social problems, not that the existence of such social problems or poverty should lead us to condone crime in any way. Nonetheless we must understand the underlying factors which give rise to such offending and, unless we do so, our attempts to solve the crime problem will not amount to much. Such an outcome would make legislators appear incompetent, bringing measures intended to reduce criminality into disrepute. The fall-out from such a solution would be nothing short of disastrous for society. No Member of this House serious about solving the problem can afford to allow that to happen.

Members of the Opposition would do well to take on board the comments of a former Fianna Fáil Minister for Justice, now European Union Commissioner, at a recent IFA conference. Speaking about violence and crime, Commissioner Flynn said it was important not to become too alarmist on the issue, that the war against drugs and crime would be a long and difficult one and that we would do ourselves no favours by adopting panic responses. His comments appear relevant to the approach of Members opposite in this debate.

When I spoke in the debate in May last on Deputy O'Donoghue's Criminal Law (Bail) Bill, 1995, I referred to the difficulties many people faced in the poorer parts of Dublin. They are persecuted by petty criminals, a particularly sad feature of the crime problem, in that the old and needy are themselves preyed upon for sums of money, sometimes incredibly small. If defies understanding how so much misery can be inflicted in these circumstances, petty criminals rendering the lives of so many others absolutely unbearable. In tandem with effective criminal justice measures, we must endeavour to address the [1161] problems of social deprivation at their root causes and make progress in that way.

Deputy O'Donoghue and his colleagues have jumped the gun on the legislative proposals. While the Bill is evidence of the Deputy's commitment to seek to reform the law, such reform should await proper, detailed examination of the report of the Law Reform Commission. Indeed, I consider the Government would be shirking its responsibility if it did otherwise. In such circumstances, the Government has no option but to oppose the Bill.

Mr. Penrose: Information on Willie Penrose  Zoom on Willie Penrose  I clearly understand the reason Deputy O'Donoghue has introduced this Bill as all Members are aware that the tentacles of crime have spread into every town and village, that it is a nationwide problem. Much disquiet has been voiced about the bail laws. The Criminal Justice Act, 1984, provides that a sentence of imprisonment for an offence committed while on bail must be consecutive on any sentence passed for other offences. We could apply our minds to the interpretation which has been given to that in recent times. The Law Reform Commission's report points out that the courts interpret the section to permit one of the consecutive sentences to be suspended and that deserves our legislative attention. I do not speak from a civil libertarian viewpoint, rather I will consider the matters as a practising barrister.

The Law Reform Commission's report on bail is lengthy and detailed. It will require adequate time for a proper consideration of its contents. It does not contain a summary, as is usual for Law Reform Commission reports, making it more difficult to digest its full implications and placing a greater obligation on us not to assume the problems associated with offending on bail can be solved easily.

The report recognises, as does the thrust of this Bill, that by international standards we have liberal bail laws. This should not come as a surprise given the [1162] strong judgments delivered in the landmark O'Callaghan case in 1966 and reinforced in the Ryan case in 1989. The changes in society which have taken place since the O'Callaghan case, in particular the growth in the problem of drug addiction and associated crime and in crime generally, mean we must face new realities which our bail laws need to reflect.

Although this is no doubt true, we simply cannot cast aside fundamental principles of the justice system such as the constitutionally protected right to liberty and the presumption of innocence. If we were to rush headlong, as this Bill considered only over a two week period might lead us to do, while failing to examine the possibility of reforms of criminal justice legislation as outlined by the Law Reform Commission, we might not do the legislative process the service we are elected to do.

That is not to say our bail laws do not need reform. Most Members of this House and most people outside would agree that change is needed to stop the problem of bail offending. However, that requires careful and reasoned consideration. It was for that reason Deputy Geoghegan-Quinn, then Minister for Justice, referred this matter to the Law Reform Commission. It was asked to examine the issue as an expert body and the obligation is now on us as legislators to give the report proper and full attention.

The problem of bail offending has many aspects. It should be clear to all that the solution requires that the underlying causes be identified and remedied. Figures as to the extent of drug abuse and resultant levels of crime have been mentioned. The solution is not simply to ensure an earlier incarceration of suspects but to tackle the crime problem at source. This in turn requires us particularly to examine the reasons so many young people turn to drugs— sadly it is mainly young people who are involved.

The Law Reform Commission recognises the complexities and in its report it outlines the extent of the problem of [1163] offending on bail but cautions against drawing assumptions from Garda figures on bail offending. It expresses the view that attempts in other countries to predict likely criminal behaviour proved discouraging. From this I infer it is difficult to predict with any degree of accuracy the likelihood that any particular person who applies for bail will commit further offences if it is granted.

The issue must be viewed from a number of perspectives rather than from a single perspective as Deputy O'Donoghue has done. It follows that this Bill alone cannot be a solution. Such a Bill should be examined in conjunction with the Law Reform Commission's proposals. We must recognise Deputy O'Donoghue has demonstrated a genuine concern about the problem, for which he and his party have to be commended. Hopefully, he will give his support to the Government measures in due course which will undoubtedly necessitate increases in public expenditure and which I will wholeheartedly support. The resources required to tackle crime should not be sacrificed on the altar of fiscal rectitude.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  The Law Reform Commission in its recent report on bail stated that, “By international standards Ireland remands few persons in custody pending trial”. It further said that our law is “unusually restrictive” in the narrow grounds upon which bail may be refused by our courts. It is abundantly clear that the two grounds upon which bail may be refused, as laid down in the Supreme Court judgment in the O'Callaghan case in 1966 and affirmed by the Supreme Court in the Ryan case in 1989, are too restrictive and narrow. The growth in the level of serious crime in recent times demands that this anachronism in our law be corrected.

We are unusual among common law jurisdictions in not having comprehensive bail legislation in recent years. The time has come to fill the vacuum which exists in our criminal law. The Minister for Justice criticised Fianna Fáil for [1164] indecent haste in introducing this Bill. Her flimsy excuse was that the Law Reform Commission report warrants critical analysis before any proposal can be put to the people or any legislation introduced. Nobody believes this nonsense.

The Minister saw no need to await the Law Reform Commission's report on bail last March when on national television she promised the people a referendum on bail which, she said, in all probability would be held in tandem with the divorce referendum. The Minister was stopped in her tracks by the swashbuckling Minister for Finance who cancelled the prisons at Castlerea and Mountjoy when the Minister was absent.

The Minister for Justice subsequently had a Damascus-like conversion and ran for cover behind the pending Law Reform Commission's report. She knew as well as everybody else that even if she did obtain rainbow consent for a referendum on bail there would be no place to put the hardened criminals concerned.

The Minister has become a magician saying “now you see it, now you don't”, with a criminal justice policy which is just an illusion. Meanwhile the level of serious crime is spiralling out of control. Time is of the essence in tackling the problem and this Bill affords the House the opportunity of recalibrating the scales of justice in order to redress the balance which has undoubtedly tilted in favour of serious and habitual criminals.

The manner in which Article 40.4.1º of the Constitution has been interpreted by our courts in recent years warrants a review of the provision that: “No citizen shall be deprived of his personal liberty save in accordance with law”. The Irish people are entitled to decide whether this balance is right, fair and just as between the serious criminal and the law-abiding citizen. Nobody will have to look too deeply into their hearts to ascertain what the answer of the people would be.

Our criminal law is clearly defective because it does not permit our courts to [1165] remand a person charged with a criminal offence in custody even where the court is quite satisfied the accused person will probably commit serious criminal offences if released on bail. In the case of a hardened heroin addict not only is he likely to commit a crime while on bail, he almost definitely will — he must to feed his habit. We let him on the streets again to prey on the community and we do not even treat the individual.

The Minister should review what Mr. Justice Murnaghan said in his High Court judgment on the People v. O'Callaghan about the entitlement to bail of a person likely to commit further offences while on bail. When the Supreme Court decided that case in the mid-1960s, the level of crime, the nature of crimes committed and the overall criminal activity profile were substantially different. Society has changed dramatically in that period and the crime culture is now largely drug driven. All we say is that the criminal law should be changed to reflect and protect a changed society.

Our society is eye-balled by criminal godfathers and sinister crime bosses. Every available statistic indicates that a definite part of this criminal subculture is here to stay but the reaction of the Minister for Justice is to maintain our laws as they are, cordial to serious criminal offenders. Society is entitled to protect and defend itself against these perpetrators of vicious and callous offences against innocent, weak and decent people. The Minister had better quickly realise that ministerial office means more than fanfare and trumpets.

The implementation of this Bill would certainly de-liberalise our ultra-liberal bail laws to a certain extent, but in the final analysis it will merely bring us level with out fellow common law countries. It will do no more than empower our courts to refuse bail on similar grounds to which it can be refused by our nearest neighbours across the channel.

Some so-called civil libertarians, who live in ivory towers somewhere in Utopia, argue there is no right to delimit personal liberty under our law. In fact [1166] there is ample precedent for this. To consider individual liberty as an absolute right is erroneous. The many precedents include the O'Callaghan Supreme Court judgment, section 30 of the Offences Against the State Act, 1939, and the Mental Treatment Act.

It is timely to reflect on the dictum of Mr. Justice Walsh in the O'Callaghan case, cited in the 1966 Irish Reports, where he referred to the deprivation of personal liberty “in the most extraordinary circumstances carefully spelled out by the Oireachtas”. Those extraordinary circumstances have been created by the recent growth of serious crimes. In any event, the philosopher who said “freedom to do every mortal thing one wants is to have no freedom at all” was right.

Our proposed amendment to the Constitution is carefully formulated to push back the rising tide of serious crime which constitutes a significant part of our criminal culture. We want to prevent the commission of crimes by those who were heretofore granted bail even when there was a real likelihood they would go on a criminal rampage as soon as they were released from custody.

The traditional basis on which bail was granted included grounds which are irrelevant today. One such ground mentioned by the Minister was that a detained person might experience difficulty preparing his defence while in custody. Because of the growth of the rights of persons in custody, the ability to prepare a defence is not as hampered today as when the arguments on the right to bail were being defined. The right to liberty as expressed in Article 40.4.1 of the Constitution is not nor should it ever be an absolute right.

Some argue the creation of a specific separate offence where a person commits an offence when on bail would be a more enlightened approach to this. This approach has recently commended itself in another jurisdiction and is not without merit. However, because of the pressing problem created by the level of offences committed by those on bail in [1167] this jurisdiction, one can argue with merit that the problem needs a more determined response. A new and demanding problem has arisen because of the level of crimes committed by those on bail and minimalist approaches will not succeed.

The proposed increased grounds for refusal of bail will not deprive persons of bail in an extremely wide range of circumstances. There is no such thing in this country as a non-bailable offence. Admittedly refusal of bail on the likelihood of the person committing further offences is a form of preventative justice but the circumstances in which it would be refused are tightly circumscribed in the Bill. In any event there are many examples in our criminal justice system where preventative justice has been used.

This Bill, together with Fianna Fáil's Criminal Procedure Bill, 1995, would bring enlightened and desirable reform to our criminal law. The new regime would make for more efficiency and fewer delays in bringing criminal offences to trial. Under the current system some delays are necessitated by antiquated procedures under the Criminal Procedure Act, 1967; these are significantly improved upon in our Criminal Procedure Bill.

The operation of our proposed system would demand further judicial appointments but this is needed anyway. Unless our criminal procedure laws are changed immediately the arrears and backlog in the list of criminal cases awaiting trial will be such as to lead to further accused persons walking free on the basis of an order of prohibition being granted by the High Court. This has happened with increasing frequency because of delays in bringing criminal cases to trial.

The Minister says we need to further consider the Law Reform Commission report — that is available and we know the arguments on both sides. Everyone knows that under our laws the criminal [1168] is encouraged to commit further offences while on bail because it is unlikely to alter significantly the criminal penalty he is likely to suffer in many instances. The most effective way to create a disincentive is to adopt the proposals in our Bill and not to create a further specific offence in relation to offences committed on bail. This is because the latter will probably not deter a person from committing further offences.

The courts liberally interpret the provision of the Criminal Justice Act, 1984 whereby a person who commits a crime while on bail will get a consecutive sentence — this is being taken to mean a suspended sentence. Accordingly, restricting bail in circumstances where there is a probability that the person will commit a further offence or offences on bail is justifiable as a legitimate solution, given the deluge of crime flowing from this type of offender.

In a civilised democracy the citizen's right to liberty is of paramount importance. However the maintenance and preservation of a civilised democracy pre-supposes the right of law-abiding citizens to go about their daily lives and live safely in their homes without threat to or fear for person or property. The civil rights of the majority are now under siege. The Minister and the Government have decided to ignore their plight and are throwing excuses for prevarication and procrastination around this House like snuff at a wake. An individual's civil and human rights must be consistent with the common good and an ordered and safe society. The recent increase in serious crime has undermined and poses a real threat to a civilised democracy.

If we are serious about the preservation of public peace and order, a civilised democracy and the right of law-abiding citizens to live without constant fear, we have not only a right but a duty to question certain assumptions about [1169] the individual's right to liberty. With every right comes a duty and any right must be consistent with the fundamental rights of others. The right to liberty has historically been subjected to some curtailment when public peace and order were under threat, as they are now.

Our Constitution must at all times respond to human needs, shaped by the fundamental values and pressures of life and respect for life, bodily integrity and liberty. These must be carefull balanced. This Bill would not derogate from our reputation as a country of enlightened criminal jurisprudence. It does not contravene any internationally accepted criteria among enlightend common law jurisdictions, the European Convention on Human Rights, or the recommendations for pre-trial custody issued by the committee of Ministers of the Council of Europe. In short, the Bill would make this country a safer place in which to live. None of these considerations weighs heavily with the Minister for Justice or the Government which has been [1170] in office for almost a year without giving a legislative or tactical response to the problem.

The cavalier dismissal of this Bill and other measures proposed by Fianna Fáil to tackle crime must be judged against the Government's paralysis and ineptitude. It appears that we have once again wasted our sweetness on the desert air.

However, the day of reckoning inches closer with each passing day. This Government, which cancelled the building of prisons, refused to change our bail laws, refused to implement new criminal procedures and presided over a remorseless rise in the tide of serious crime, will pay a very high price. This Government, in short, is on a collision course with the electorate. I believe that the jury is no longer out and is merely awaiting verdict day.

Cuireadh an Cheist.

Question put.

Rinne an Dáil vótáil.

Ahern, Bertie.
Ahern, Dermot.
Ahern, Michael.
Ahern, Noel.
Brennan, Matt.
Brennan, Séamus.
Callely, Ivor.
Clohessy, Peadar.
Coughlan, Mary.
Cowen, Brian.
Cullen, Martin.
Davern, Noel.
Doherty, Seán.
Fitzgerald, Liam.
Flood, Chris.
Foley, Denis.
Haughey, Seán.
Hughes, Séamus.
Jacob, Joe.
Kenneally, Brendan.
Killeen, Tony.
Kirk, Séamus.
Kitt, Michael P.
Kitt, Tom.
Leonard, Jimmy.
Martin, Micheál.
McCreevy, Charlie.
McDaid, James.
McDowell, Michael.
Moffatt, Tom.
Molloy, Robert.
Morley, P.J.
Moynihan, Donal.
ÓCuív, Éamon.
O'Dea, Willie.
O'Donnell, Liz.
O'Donoghue, John.
O'Hanlon, Rory.
O'Leary, John.
O'Malley, Desmond J.
Power, Seán.
Quill, Máirín.
Smith, Brendan.
Smith, Michael.
Treacy, Noel.
Wallace, Dan.
Walsh, Joe.

[1171]Ahearn, Theresa.
Allen, Bernard.
Barrett, Seán.
Barry, Peter.
Bell, Michael.
Bhamjee, Moosajee.
Bhreathnach, Niamh.
Bree, Declan.
Broughan, Tommy.
Burke, Liam.
Burton, Joan.
Byrne, Eric.
Carey, Donal.
Connaughton, Paul.
Connor, John.
Costello, Joe.
Coveney, Hugh.
Crawford, Seymour.
Creed, Michael.
Crowley, Frank.
Currie, Austin.
Deasy, Austin.
Doyle, Avril.
Dukes, Alan M.
Ferris, Michael.
Finucane, Michael.
Fitzgerald, Brian.
Fitzgerald, Frances.
Flaherty, Mary.
Flanagan, Charles.
Gallagher, Pat.
Harte, Paddy.
[1172]Higgins, Jim.
Higgins, Michael D.
Hogan, Philip.
Kavanagh, Liam.
Kemmy, Jim.
Kenny, Enda.
Kenny, Seán.
Lowry, Michael.
Lynch, Kathleen.
McCormack, Pádraic.
McDowell, Michael.
McGahon, Brendan.
McGinley, Dinny.
McGrath, Paul.
Mitchell, Gay.
Mulvihill, John.
Nealon, Ted.
Noonan, Michael (Limerick East).
O'Keeffe, Jim.
O'Shea, Brian.
Owen, Nora.
Pattison, Séamus.
Penrose, William.
Rabbitte, Pat.
Ring, Michael.
Ryan, John.
Ryan, Seán.
Shortall, Róisín.
Stagg, Emmet.
Timmins, Godfrey.
Upton, Pat.
Walsh, Eamon.
Yates, Ivan.

Fáisnéiseadh go rabhtas tar éis diúltú don Cheist.

Question declared lost.

Mr. Harte: Information on Patrick D. Harte  Zoom on Patrick D. Harte  A Cheann Comhairle, before we move to the next business, may I extend congratulations to you and to Deputy Pattison on being Members of the House 34 years today. We have come through tough and very pleasant times, but we will always remember the good times.

In extending congratulations to you it is well we remember that of the 146 Deputies who were elected to the House on that date, two are in hospital. The House should send good wishes to Deputy Blaney, the father of the House, and to Deputy Lenihan.

Mr. Pattison: Information on Séamus Pattison  Zoom on Séamus Pattison  I wish to be associated with the remarks of Deputy Harte and offer my congratulations to you also, a Cheann Comhairle. I also wish to be associated with the good wishes and kind thoughts for our colleagues who are in hospital.

Mr. Davern: Information on Noel Davern  Zoom on Noel Davern  I hope, a Cheann Comhairle, that following Deputy Harte's remarks there is no implication that you are retiring in any fashion. I wish you long good service. It is a pleasure to have been a colleague for so many years.

An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  The thought of retiring never occurred to me. I thank Deputy Harte for his kind thoughts. It seems like yesterday that Deputy Pattison, yourself and Deputy Tom O'Donnell came in here on 4 October 1961. It [1173] is good to see both you and Deputy Pattison looking so well.


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