Criminal Justice (No. 2) Bill, 1997 [ Seanad ] : Report Stage.

Wednesday, 21 April 1999

Dáil Éireann Debate
Vol. 503 No. 4

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Bill recommitted in respect of amendment No. 1.

An Ceann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  Amendment No. 1 is consequential on amendments Nos. 34 to 37, inclusive. Amendments Nos. 20, 22, 23 and 30 are consequential on amendment No. 34. Amendments Nos. 1, 20, 22, 23, 30 and 34 to 37, inclusive, may be taken together by agreement.

Minister for Justice, Equality and Law Reform (Mr. O'Donoghue): Information on John O'Donoghue  Zoom on John O'Donoghue  I move amendment No. 1:

In page 5, line 21, after “1998”, to insert “TO PROVIDE FOR THE GIVING OF EVIDENCE THROUGH A LIVE TELEVISION LINK BY WITNESSES IN FEAR OR SUBJECT TO INTIMIDATION, FOR THE PROTECTION OF THE WHEREABOUTS AND IDENTITY OF WITNESSES UNDER A GARDA SÍOCHÁNA WITNESS PROTECTION PROGRAMME, FOR THE OFFENCE OF INTIMIDATION OF WITNESSES, JURORS AND OTHER PERSONS AND FOR THE ARREST AND DETENTION OF PRISONERS IN CONNECTION WITH THE INVESTIGATION OF OFFENCES”.

This amendment provides for an amendment of the Long Title of the Bill, so as to permit the inclusion in the Bill of important new provisions. In brief, these provide for the giving of evidence through a live television link by witnesses in fear [774] or subject to intimidation, the creation of a new offence of trying to discover the whereabouts or any new identity of witnesses who have been relocated under the Garda Síochána's witness protection programme, the creation of a new offence of intimidating witnesses and others and the creation of a new power to enable the Garda Síochána to investigate offences by prisoners.

I am convinced these proposals are vital to improve the position of vulnerable witnesses and others who play their part in the criminal justice process, and also to enable the Garda Síochána to properly investigate serious offences by prisoners. I put forward these proposals as amendments to this Bill because it gives the House the earliest opportunity to consider them. Earlier today the House passed a motion approving this procedure and I am grateful to the House for its support. In accordance with procedure, all the amendments covered by the amendment to the Long Title are being discussed together, so I ask the House to bear with me while I explain the proposals.

The amendments comprise both substantive and consequential amendments. I will begin with a substantive one, amendment No. 34, which proposes a new section 39 in the Bill. The proposed new section 39 provides that in any proceedings on indictment the court may give leave for a person, other than the accused, to give evidence through a live television link if it is satisfied the witness is likely otherwise to be in fear or subject to intimidation.

The existing law on the giving of evidence through a live television link is provided for in the Criminal Evidence Act, 1992. Section 13 of the Act permits a witness, other than an accused, to give evidence by live television link in the trial of sexual offences and offences involving violence or the threat of violence to a person. While this provision is very valuable in itself, it seems to me too narrow in its focus. It concentrates on the nature of the offence being tried, namely sexual offences and offences involving violence or the threat of violence to a person, and not on the nature of a threat facing a witness. It has no application to trials of other offences even though there might be circumstances where a person is genuinely in fear.

I am sure Members of the House could imagine circumstances where, for example, a witness in a trial of a major drug trafficking offence might be frightened or subject to intimidation. Yet, in the absence of actual violence, such a witness could not be permitted to give evidence through a live television link. I believe the capacity to give evidence through a live television link should be available to such witnesses. What matters, it seems to me, is not the type of offence on trial but the existence of genuine fear or intimidation on the part of a witness.

The amendment proposes, therefore, to permit any person in criminal proceedings on indictment, other than the accused, who is in fear or subject to intimidation to give evidence through a live [775] television link with the leave of the court. In granting leave, the court will have to be satisfied that the witness would be in fear or subject to intimidation in giving evidence in open court.

I am proposing that the provision will apply, not only to trials on indictment but to any appearance by a witness under the new procedures which, under this Bill, are to replace the preliminary examination. It could be that a witness might be required to give evidence in the District Court by way of deposition on an application by the accused for a dismissal of charges. Clearly, a witness could be as frightened or intimidated at such a hearing as at the trial itself. It follows that the potential for giving evidence through a live television link should apply equally.

The new section 39 also provides that, where a District or Circuit Court does not have the necessary facilities for live television links, the case can be transferred to one which does. This reflects the reality that the capacity for live television links is not yet widely available throughout the courts.

The new section 39 is without prejudice to any other enactment providing for the giving of evidence through a live television link. In other words, it does not affect the Criminal Evidence Act. The new section 39 will complement the 1992 Act, not replace it, as the provisions in that Act relating to live television links contain specific provision in relation to children and young persons. A number of amendments are consequential upon the new section 39, which I will now outline.

Amendment No. 20 adapts the new section 4E of the 1967 Act to take account of the proposed new section 39. Section 4E provides for an application by an accused for the dismissal of the charge against him or her. Oral evidence on such an application, while it will not be the norm, will be possible. This amendment makes clear that this includes evidence given through a live television link by virtue of the proposed new section 39 of the Criminal Evidence Act, 1992.

It could also happen that a witness in a section 4E hearing might already have given evidence through a live television link in a hearing under section 4F, which relates to the taking of depositions in the District Court. This amendment deals with such an eventuality and provides that the video recording of the section 4F evidence will be admissible as oral evidence on the hearing of a section 4E application. In other words, it seeks to avoid a vulnerable witness having to give evidence twice. Instead of the District Court requiring the witness to give his or her evidence again, albeit through a live television link, the court will be able to look at the video recording of the evidence previously given.

The purpose of amendment No. 22 is to adapt section 4F, which provides for the taking of depositions by the District Court, to cater for a possibility that evidence might be given to the court by a witness through a live television link under the proposed new section 39 or under the Crimi[776] nal Evidence Act, 1992. Under section 4F, which is being inserted into the Criminal Procedure Act, 1967, evidence can be taken down in writing and, in certain circumstances, this can be admitted at trial. Under the proposed new section 39, a witness in fear or subject to intimidation will be able, with the leave of the court, to give evidence at a section 4F hearing through a live television link.

However, if we were to leave section 4F as it is, it would mean that while such a witness could give evidence through a live television link and while that evidence would be video recorded, the evidence would still, under section 4F, have to be taken down as a deposition. This would apply also to evidence given through a live television link under the Criminal Evidence Act, 1992; that is, in cases involving violent or sexual offences. I see no point in video recorded evidence being laboriously taken down as a deposition. If the evidence is to be admitted later at trial, I see no reason at least in principle the video recording should not be used. Where the existing section 4F provides for the taking of evidence by deposition, this amendment expands this to provide for the taking of evidence either as a deposition or, where evidence has been given through a live television link, through that link.

Amendment No. 23 adapts section 4G to reflect the changes proposed to section 4F. Where section 4F deals with the taking of depositions, section 4G deals with the use of depositions – in other words, their admissibility at trial. The amendment in recasting section 4G repeats what is there at present, subject to one addition which I will explain, and goes on to provide for the use of video recordings of evidence given through a live television link.

I want to deal with the one addition to the existing section 4G I mentioned. Section 4G provides for the admissibility at trial of a deposition where the deponent is dead, is unable to attend or is prevented from attending to give evidence at the trial. In repeating these grounds in the revised section 4G, I propose there should be a further ground for the admissibility of a deposition – that is, where the deponent does not give evidence at the trial through fear or intimidation. At present, the admissibility of any such deposition would be subject to safeguards for the accused, namely, that the accused must have been present at the taking of the evidence, the opportunity must have been given to cross-examine and re-examine the witness and the trial judge must not have made the deposition if to do so would not be in the interests of justice.

The major change in the revised section 4G is a consequence of the change proposed to section 4F where it will be possible to take evidence not only by way of deposition but also through a live television link. It is necessary to provide for the grounds on which the video recording of such evidence might be admissible at trial. I propose that such a video recording will be admissible at trial as evidence of any facts stated therein of which direct evidence by the witness would be admiss[777] ible. The same safeguards for the accused in relation to depositions will also apply to such video recordings.

Amendment No. 30 adapts section 20 to the change proposed to section 4F. Section 20 amends section 16(1) of the Criminal Evidence Act, 1992. The 1992 provision deals with the admissibility of video recordings of evidence given at a preliminary examination. Section 20 applies that provision instead to the hearing of an application under section 4E or the taking of a deposition under section 4F. However, section 4F is now being expanded from dealing with the taking of depositions to dealing with the taking of evidence through a live television link. The amendment to the 1992 provision in section 20 must be adjusted accordingly. Rather than adding a reference to video recorded evidence, the amendment achieves its objective by substituting a general reference to proceedings under Part 1A of the Criminal Procedure Act, 1967, which would cover proceedings under both sections 4E and 4F.

Amendment No. 35 is a substantive amendment and introduces a new section 40 into the Bill concerning the witness protection programme. The witness protection programme, which is operated by the Garda Síochána, plays a vital role in ensuring that the course of justice is not perverted by those who, through violence or the threat of violence, seek to suppress vital evidence at major trials through the intimidation of witnesses either by threatening or harming witnesses prior to testifying or by threatening retribution afterwards. The amendment, which I have prepared in close consultation with the Garda Síochána, will provide legislative backing for the protection afforded by the programme to witnesses and will significantly enhance its effectiveness.

The new section 40 proposed by this amendment will make it an offence for any person without lawful authority to try to identify the whereabouts or any new identity of a witness who has been relocated under the programme. Lawful authority means the authority of a chief superintendent of the Garda Síochána or a court in any proceedings involving the relocated witness. Provision is made for such Garda authorisation because there could be genuine reasons a person might need to contact a witness. Provision is made for court authorisation because it could happen that a relocated witness might be the subject of civil proceedings, for example, and it might be necessary for the court to authorise the discovery of the whereabouts of the witness or any new identity.

The amendment makes clear, however, that a court will only give such an authorisation where it is unavoidable. The court must first satisfy itself that no alternative way of proceeding is possible which would not prejudice the continued participation of the witness in the programme – for example, by transmitting any legal documents to the Garda Síochána for subsequent service on the witness. The maximum penalty for an offence [778] under the proposed new section is five years imprisonment or a fine or both imprisonment and a fine.

Amendment No. 36 is also a substantive amendment and proposes the insertion of a new section 41 in the Bill making it an offence for a person to intimidate witnesses, jurors and persons helping gardaí with a criminal investigation with the intention of causing the course of justice or the investigation to be obstructed, perverted or interfered with. I attach special importance to this measure.

Concerns have been expressed recently that there exists a potential for the intimidation of witnesses in certain criminal proceedings. While we should be careful not to get this out of proportion and raise unjustified fears, the idea of such intimidation, no matter how infrequent the occurrence, is completely unacceptable. The intimidation of witnesses would under present law constitute contempt of court and would be punishable by the courts. That will remain the case.

There are significant additional advantages in the creation of the offence I am now proposing. It enables this House to define the scope of the offence and gives it an opportunity to expand the offence beyond the boundaries of contempt of court. I propose that the offence should cover not only witnesses but potential witnesses, jurors and potential jurors and persons helping the gardaí with their criminal investigations. It also enables the House to determine the penalty appropriate to the offence. I propose a maximum penalty of ten years imprisonment to reflect the seriousness of the offence.

Creating a statutory offence enables this House to consider whether it is desirable to make special evidential provision for the proof of the offence. It is desirable to make such provision. The offence will consist not only of harming or intimidating witnesses, jurors and persons assisting the gardaí with a criminal investigation, which is already an offence, but of doing so with the intention of causing the course of justice or the investigation to be obstructed, perverted or interfered with.

There could be difficulties in proving that an act was done with this intention. That is why I propose that proof of an act of harm or intimidation against a person protected by the provision will be evidence that the act was done with the necessary intention. It will not be conclusive evidence and it will be open to the accused to challenge the evidence or to adduce his or her own evidence, nor will it remove from the prosecution the duty of proving guilt beyond a reasonable doubt. It will, nevertheless, be evidence and it will ensure that an accused cannot rely on feigning ignorance that the victim was a witness or juror or was helping the gardaí with a criminal investigation. This evidential provision is robust but it is justified both by the seriousness of the offence and the difficulties of proof inherent in it.

I also propose that the offence should apply to the families of those primarily protected by the [779] provision and I am giving a wide definition to families. It will extend beyond relations to, for example, co-habitees. It is important that we keep this in proportion and that we do not cause needless anxiety by exaggerating the scale of the problem. It is equally important that the law should treat with severity any attempt to interfere with witnesses, jurors or persons helping the Garda with criminal investigations. This is an opportunity to amend the law to that effect.

Amendment No. 37 is substantive and proposes the inclusion of a new section 42 dealing with the investigation of offences by prisoners. The background to the proposal is that early in 1998, I established an expert group to consider changes in the criminal law which were recommended in the report of the steering group on the efficiency and effectiveness of the Garda Síochána.

Among the recommendations of the steering group was one related to the power of detention. The report identified as a deficiency in the present law the fact that at present a person either on remand or serving a sentence cannot be arrested and detained in a Garda station for the investigation of other offences. This, the report stated, hinders investigation. It recommended that if a person is in custody on remand or serving a sentence for other offences, it should not preclude a proper investigation of a particular crime and there should be a procedure whereby such person can be arrested or detained and the crime investigated as if he or she were not already in custody. Having considered this recommendation, the expert group formulated a proposal to address the issue. That proposal forms the basis of the amendment.

Existing powers of detention subsequent upon arrest are contained in the Offences against the State Act, 1939, the Criminal Justice Act, 1984, and the Criminal Justice (Drug Trafficking) Act, 1996. Those powers are defined by reference to offences. It is nowhere explicitly stated that statutory powers of arrest and detention cannot be exercised in relation to someone in prison. However, in practice it has been accepted that they do not otherwise those powers could be exercised to negate the court order on which a person's imprisonment is grounded. It is difficult to see how this could be the case without a specific statutory provision allowing it.

Prison rules allow for visits by the gardaí to prisoners in certain circumstances. Such visits can only take place if the prisoner agrees to meet the gardaí. Clearly this could hinder the proper investigation of an offence. Under the Criminal Justice (Forensic Evidence) Act, 1990, there is provision for taking samples from a person who is in prison for the purpose of forensic testing. This applies only where the offence is an offence other than that for which he or she is in prison and only in respect of offences under the Offences Against the State Act, 1939, an offence scheduled for the purpose of Part V of that Act or an offence to [780] which section 4 of the Criminal Justice Act, 1984, applies.

A key question is how any power of detention should be authorised in relation to someone who is in prison. Given the particulars surrounding a person already in custody, it is considered essential that there should be a judicial involvement in authorising the detention, not least because any arrest and detention would have the effect of temporarily overriding an existing court order.

The new section being proposed provides that a Garda may, on the authority of a judge of the District Court, arrest a prisoner. Before issuing the authority, the judge must be satisfied by information on oath by a senior Garda officer of a number of matters, namely, that there are reasonable grounds for suspecting that the prisoner has committed an offence other than the offence for which he is in prison; that the arrest is necessary for the proper investigation of that offence and that where the prisoner had previously been arrested for that offence, further relevant information had come to light since. The arrested prisoner should be taken to a Garda station and be detained there for the periods authorised under the Criminal Justice Act, 1984, and he will be dealt with in the same manner as a person detained under that Act.

Provision is also made for the ending of the detention where there are no longer reasonable grounds for the detention. On termination of the detention, the person will be returned to the custody of the governor of the prison where he was imprisoned at the time of arrest.

This new section is a necessary addition to the powers of the Garda for the investigation of serious offences. I intend to bring forward further legislative proposals in the future arising from the report of the expert group. These will be dealt with in a separate Bill.

Mr. Higgins: Information on Jim Higgins  Zoom on Jim Higgins  (Mayo): I agree with the amendments proposed by the Minister, which is in stark contrast to the attitude of all Members of the Opposition when we dealt with the Criminal Justice (No. 2) Bill, 1997, on Second Stage and over two sessions in committee. The Criminal Justice (No. 2) Bill debate set down clear distinctions between what the Minister was proposing and what the late Deputy Upton, Deputy McManus and I saw as our obligation as Opposition spokespersons to oppose. We essentially opposed the taking of the Bill in respect of a number of crucial areas: the mandatory minimum sentence of ten years for £10,000 possession, the abolition of pre-trial proceedings and a number of other issues.

I welcome the measures brought forward by the Minister. I welcome amendment No. 1 which deals with changing the title of the Bill because effectively this is a new Bill. This arises from a high profile case, the almost disastrous collapse of the trial in respect of those who murdered the late Garda Jerry McCabe. That sent a shudder through everybody who had an interest in the criminal justice system. Because of clear evidence [781] of witness intimidation and the need for witness protection, something tangible had to be done to ensure that the disastrous consequences of that case, had it collapsed, would not be replicated.

I welcome the measures proposed in the Bill. The video taping of evidence, live television transmission, is a very sensible measure. It is fundamental and crucial to witness protection not only where there is an obvious threat of violence but in dealing with the very sensitive cases of sexual offences, reported daily in our newspapers, which are a reality in courtrooms throughout the length and breadth of the country.

One of the stark reminders in evaluating the success of the criminal justice policy is that on examination of the crime figures there has been a huge increase in the number of people being arraigned for sexual offences. The rape crisis centre, various support agencies and the Garda Síochána all testify to the fact that even though the Minister may say the crime figures are falling, there is a 30 to 40 per cent increase in reported rape.

Where someone has been attacked, it is obvious there is a degree of trauma and sensitivity in that the person has had a harrowing experience. The person bringing the complaint is very sensitive and vulnerable. That is particularly the case when offences have been carried out by next of kin. It is crucial that everything possible be done to ensure the evidence is presented to the court in as clear, succinct and unintimidated fashion as possible and also from the view of ensuring there is not too much intrusion by way of prying eyes on the vulnerable person in court. While I welcome it, I wonder about it. I genuinely believe this facility will become the norm. Once the Bill is passed and it becomes established that evidence can be given by a live television link on a routine basis, undoubtedly people will want to avail of it. The Minister mentioned the adequacy of court facilities. How capable are the existing court facilities of providing this type of live television link as soon as the Bill becomes law? Undoubtedly, the vast majority of plaintiffs who have the option of giving evidence by a live television link as distinct from going into the dock and presenting themselves in open court will avail of it. In the context of ensuring that the Bill is effective, there is an obligation on us to ensure that the necessary resources are made available to allow people who want to avail of this option to do so.

The Minister's amendment in relation to the taking down of evidence as a deposition is a sensible measure. I do not understand why there should be an obligation to undertake the laborious task of taking down evidence given that a live television link will be available. I agree with the provisions relating to the admissibility of a deposition or a video recording as evidence. There are adequate safeguards. The right to cross-examine is an obvious obligation and I welcome the safeguards.

[782] Regarding the witness protection programme, the Minister seeks to make it an offence to try to identify the whereabouts of a relocated witness. It is obvious that this must be an offence in its own right. However, will it work in practical terms? The penalties which will be imposed are a term of five years imprisonment or a fine or both.

The giving of evidence by a live link must be debated in greater detail because the measures were thrust upon us at very little notice. We anticipated that we would receive much more notice of the Minister's amendments but, unfortunately, they only became available last week. We have had little time to consider them in detail. Nevertheless, the provisions are sensible. They change the thrust of the Bill and we called loudly for them at the time of the almost tragic fall out from the trial relating to the killing of Detective Garda Jerry McCabe.

I welcome the powers of detention included in amendment No. 37. Many cases involve professional criminals who have multi-criminal tendencies. In most instances, after people have been detained and imprisoned, evidence may come to light in relation to other offences. It is a sensible measure to allow people to be taken into custody again by the Garda Síochána with a view to the further investigation of such matters. Sufficient safeguards exist in the section which introduces judicial involvement. A District Court judge must authorise the detention of a person on the basis of an order sought by a member of the Garda Síochána not below the rank of superintendent. I welcome the thrust of the Minister's amendments.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  This is the first time I have dealt with the Bill on behalf of my party. The Second and Committee Stage debates were handled by my late colleague, Deputy Upton. He put the views of the Labour Party clearly and trenchantly on the record and I will try to pick up where he left off. I wish to make a number of general points because it is the first time that I have had an opportunity to comment on the Bill.

As the late Deputy Upton said, the Minister has managed a remarkable feat in the production of the legislation by rejecting two expert group reports, both of which were headed by former Supreme Court judges. Part II rejects the Law Reform Commission's report on sentencing while Part III rejects the report of the committee on court practice and procedure on preliminary examinations. The attitude of my party and many Opposition Members to mandatory sentencing was adequately put on the record by the late Deputy Upton. Part II contains a provision for mandatory ten year sentences for drug trafficking. This provision runs completely contrary to the Law Reform Commission's report on sentencing which recommended the abolition of mandatory sentencing so judges would have some discretion in terms of the specifics of individual cases.

[783] The existing Act relating to the misuse of drugs draws a distinction between cannabis and hard drugs, with the former attracting lesser penalties and hard drugs being characterised in a way which shows the total opposition of the community to their use, sale, handling and distribution through significantly harsher penalties. The provisions in the Bill do not draw this distinction and this is a cause for concern. As usual, the fear is that the penalties would be imposed on low level couriers rather than the major drug criminals because the Bill fails to draw a sufficient distinction between persons with a major organisational role or involvement and lesser persons, such as mules who carry drugs. These people are often drug addicts and, undoubtedly, they would feel the full brunt of the law rather than the godfathers of crime which society must endeavour to reach. In fairness to the law officers of the State, they have successfully reached out to the heart of criminality rather than peripheral carriers who are in many ways victims themselves. I commend the activities of the Criminal Assets Bureau in that regard.

The legislation also allows the Garda to give a subjective opinion in evidence in relation to market value. This aspect is always of concern when newspaper reports put a putative value on a particular drugs haul. It is entirely arbitrary and a cause of concern. I and my party want a hard line taken against drugs and drug traffickers. A helpful aspect, which we have repeatedly sought, would be if trials for serious drug offences were held within 60 days of a person's arrest. This is an onerous demand but it would show the intention of the Oireachtas to deal swiftly and decisively with major offences of that nature.

Part III abolishes preliminary examinations in the District Court. This removes a further protection for all accused citizens. I do not believe that its abolition will have a great effect on combating crime. In implementing this policy, the Minister is rejecting the report of the committee on court practice and procedure, chaired by the Supreme Court judge, Mr. Justice Blaney, which recommended the retention of this procedure.

This committee, the findings of which have been rejected by the Minister, included the late President of the Circuit Court, Judge Spain, the President of the District Court, Judge Smithwick, two High Court judges, Judge Barr and Judge Peter Kelly, the Minister's colleague, Deputy McGennis, the former distinguished Leas-Cheann Comhairle, the late Deputy Jim Kemmy, and Mr. Gerard Hogan, SC. All this expertise has been rejected by the Minister and the concern expressed by Deputies on this side was not stated merely for the sake of opposition. It echoes the clear and balanced opinion of people with valuable experience of justice in this State. I hoped the Minister would reflect on the strong case put forward by my late colleague, Deputy Upton, which has been echoed by others on these benches.

[784] I cannot find fault with the amendments moved by the Minister. I welcome the inclusion of these measures. They were not envisaged when the Bill was first produced but circumstances demand that the Legislature take such measures. They will not be resisted by this bench.

The first amendment providing for the giving of evidence via live television in cases where witnesses might be fearful of or subject to intimidation is unfortunately necessary. That the trial of those accused of the murder of a member of the Garda Síochána, Detective Garda Jerry McCabe, almost fell apart because of clear intimidation of and interference with witnesses sent a shock wave throughout the State. It would have been a calamity had that happened. We have a moral duty and statutory responsibility to ensure that legislative measures are implemented to ensure that such intimidation does not recur. No doubt there will be other instances of intimidation. I regret that witnesses are subject to intimidation in such a manner that it is now required to make specific provision to deal with the matter. Such is the experience we have unfortunately.

Amendment No. 34 deals with witnesses in fear of or subject to intimidation. I welcome it and will support it. Amendment No. 35 deals with the relocation of witnesses, the protection of those on a witness protection programme and the creation of new offences which would make it unlawful and subject to a penalty to inquire after them or to disclose their location or names. It is unfortunate that this is necessary. A few years ago most of us would have felt that the witness protection programme was to help major FBI operations in the United States to find evidence to prosecute the godfathers of crime, with families moving hundreds or thousands of miles as a result. That was fine for the United States but we thought it would never have application in this State. It is now necessary. The evidence exists that some crime in this State is so highly organised that a witness protection programme is required. The amendments proposed by the Minister are necessary. It is a sad situation but we would be shirking our responsibility if we did not acknowledge the reality that a witness protection programme is required if we are to smash the criminal gangs rather than scratch at their periphery.

I welcome amendment No. 36 which creates new offences of threatening, harming, menacing or intimidating jurors or potential jurors. We would not have felt this necessary a few years ago. Clearly, except in cases of subversion, all courts operated so that jurors were expected to be able to hear a case and give a verdict in an open manner. Cases of subversion required the creation of the Special Criminal Court. Those organised conspiracies against the State were so menacing to potential jurors and witnesses that the Special Criminal Court was created to deal with them. We had hoped that mechanism could lapse into history but we need to strengthen the [785] ordinary courts to deal with organised criminal activity and its godfathers.

Amendment No. 37 is an odd requirement which deals with people who are already in prison. One would imagine that there is no need for a legislative measure to detain people in prison – they are already detained. For the proper investigation of crime, however, such an amendment is necessary to have the legal right to interrogate and detain such people, even if they have been found guilty of an offence for which they are serving a sentence. I accept the Minister's reasoning for the inclusion of that amendment. Since the safeguards are the same as they would be for any citizen under the Criminal Justice Act, 1984, we are creating a process to enable proper interrogation of any suspect for a new offence.

I welcome these amendments. They will add to the protection of the judicial process and witnesses and allow people who might not be willing to come forward to be protected. For people to have their lives so disrupted that they have to be relocated, change their names, schools and even country is an extraordinary burden. Unfortunately we have reached a point where that is necessary and the protective mechanisms proposed by the Minister are required. Already the Statute Book gives scope for the gathering of evidence through interrogation where such interrogation is subject to audio and video taping. There are only four Garda stations equipped to do that. This morning I heard that in 80 per cent of cases, suspects being questioned would not opt to have their testimony video or audio taped. I find that disquieting. It should be the norm and the facilities to do it should exist in most, if not all, Garda stations. If that is a resource matter, the Minister should address it. If we are to talk about a new facility in the courts for the presentation of video evidence, or evidence through a video link, I would like the Minister to reassure the House that once this measure is enacted the resources will be in place to provide for the technical equipment in all suitable courts so that this provision can be practically put in place. All too often we enact measures here that we have debated and analysed but that we do not resource and I hope the Minister, although it is extraneous to this provision, will comment on the issue of providing an audio and video recording facility in most Garda stations for the normal interrogation of suspects or detainees. Will he also reassure us that the resources will be in place for the courts to have the equipment they need to enact the measures now proposed by him?

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I express my gratitude to both Opposition spokespersons for their support for the amendments I have brought forward. That support is important and it is important there is a united front in this House in terms of the protection of evidence.

Both Deputy Higgins and Deputy Howlin referred to the case of the late Detective Garda [786] Jerry McCabe. The position on the Garda inquiry regarding the alleged intimidation of witnesses is progressing extremely well. A senior Garda officer with a team of detectives has been investigating this matter for some time. I do not have a final report from the Garda Commissioner but I anticipate I will have one in the not too distant future. My understanding of the position is that a file will be forwarded to the Director of Public Prosecutions with a view to possible charges being brought against certain persons.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  That is excellent news.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  With regard to the video link facilities which both Opposition spokespersons raised, the TV links will not become the norm under this Bill. A judge will have to be satisfied that the witness would be subject to intimidation. With regard to Deputy Howlin's point on the distribution of video links in Garda stations throughout the country, TV links currently are only available in Dublin. That is why the legislation will provide for the transfer of cases to courts where the facilities exist.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  Is that a good thing in itself?

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I do not think it will make much difference to the actual case whether the individual is transferred for the purposes of video linking, but it is important to recognise that it is only available in Dublin at present. With regard to Deputy Howlin's suggestion, it is my intention to extend the facility as part of the ongoing courts building programme. The intention is to try to extend it to the other major urban centres but it will take some time to complete the extension. Incidentally, the existing system is linked to Courts 14 and 16 and in practice it is predominantly used in Court 16. In that room it has been used in the past in District Court, Circuit Court and High Court proceedings. A second system in Court 23 has been set up but it is not in operation pending the appointment of the necessary staff.

The question of video recording of interviews with detained persons is being examined by a committee under the President of the Circuit Court, Judge Esmond Smyth. When the report of that committee is available I will act on foot of it in an appropriate way.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  I hope the Minister has more regard for it than those I mentioned.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  Deputy Howlin expressed concern about some features of the Bill which are not covered by the amendments under discussion here. In particular, he expressed concern about the lack of distinction in the Bill between hard and soft drugs. I made it clear on a number of occasions in the debates on the Bill that I consider that distinction to be artificial. The Bill provides for the mandatory sentence to apply where the value of the drugs exceeds £10,000. No one can suggest that a person found with such a quan[787] tity of drugs, hard or soft, is anything other than a major player in the trafficking of drugs and the ten year sentence is aimed at people like that. As regards the valuation put on the drugs, I have no intention of going back over what are well worn arguments—

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  Made by an honourable man.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  —but the Bill provides that a court may hear evidence from a garda about the street value. In other words, a garda would be taken by the court as being an expert if he has considerable knowledge of the drug trade.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  Market value?

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  The people involved in the national drugs squad have an expert view and would be accepted as experts.

On the question of mandatory sentencing referred to by Deputy Howlin, I have emphasised in the past that our abhorrence of the trafficking of drugs with a street value of £10,000 or more must be evidenced by our determination to ensure that such persons will receive lengthy sentences. The provision for a minimum penalty of ten years is essential in such circumstances.

Some people do not agree with mandatory sentencing, but I have repeatedly made the argument that there are certain crimes of which society is entitled to express its abhorrence by having mandatory sentences. Without rehearsing the argument, the minimum sentence for capital murder is 40 years and for murder, the mandatory sentence is life imprisonment. We will now have a mandatory sentence for any individual convicted of trafficking in drugs with a street value of £10,000 or more. That will send a clear message to anybody who would become involved in such an activity that the penalties in this jurisdiction are severe.

Mr. Higgins: Information on Jim Higgins  Zoom on Jim Higgins   (Mayo): The Minister said that the judge will have to be satisfied that there is a threat of real intimidation. Will he not accept that in cases of gross violence, particularly sexual violence by people preying on young children, there is real intimidation? People who have been sexually assaulted over a long period of time by a member of their own family can find themselves face to face in the courtroom with their abuser. There is obvious intimidation of witnesses by the aura of the court and the presence of the perpetrator. People in such situations should have a right to give evidence by live television link.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  Section 13 of the Criminal Evidence Act, 1992, makes provision for the giving of evidence by video link in cases involving sexual offences. There is also provision in that legislation for video link evidence where there is violence or a threat of violence. This Bill extends those provisions to include, for example, a situation in which an individual is willing to give evi[788] dence against a drug trafficker in cases which do not involve violence or a threat of violence. In such cases witnesses could feel intimidated.

However, there must be safeguards to ensure the best evidence is given, by that I mean the individual turns up in court. Where a court is satisfied that a witness has cause to fear being intimidated or threatened, it will be empowered under this provision to allow a witness give evidence by video link. I trust this explains the position and I appreciate the support of Deputies Higgins and Howlin for these amendments.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  I am concerned that only one court is equipped to handle video evidence and that a second court is in the process of being made available to deal with this. The court which is equipped for video evidence is being used for District, Circuit and High Court cases. How many courts will be equipped to handle video evidence and what is the timescale for such alterations? In the medium-term, what locations outside Dublin will be equipped with such facilities?

Will the Minister indicate whether a decision has been taken to equip Garda stations, other than the four which have this technology, to record interviews on audio and video tape?

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  The committee chaired by Mr. Justice Esmond Smyth is examining the issue of extending the use of video recordings to Garda stations. When I receive that report I will take whatever steps are appropriate in so far as I can.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  When will that be?

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I cannot pre-empt the report and I do not know when it will be available. Knowing Mr. Justice Smyth, there will be no delay.

Courts Nos. 14 and 16 have facilities for video evidence. Court No. 16 is mainly used. The Deputy may have misunderstood my comments and thought only one court had such facilities. I intend to extend these facilities to other major urban centres, but I will not be specific as to which centres will be involved.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  The Minister could start in Wexford, which needs a new courthouse.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  Cork will almost definitely be chosen. They would never forgive us on our next visit if we did not oblige them. The facility will be extended to major urban centres and I assure the Deputy that I consider Wexford to be such a location.

Amendment agreed to.

Amendment reported.

Acting Chairman (Mr. Browne,: Information on John Browne  Zoom on John Browne  Carlow-Kilkenny): Amendments Nos. 3, 4 and 5 are consequential to amendment No. 2 and amendment [789] No. 7 is related. These amendments may be taken together by agreement. Is that agreed? Agreed.

Mr. Higgins: Information on Jim Higgins  Zoom on Jim Higgins  (Mayo): I move amendment No. 2:

In page 6, lines 33 to 37, to delete all words from and including “the market” in line 33 down to and including “more” in line 37 and substitute “the quantities of the controlled drugs shall be those as set out in the Schedule to this Act”.

The Minister stated that these arguments had been thrashed out and seemed to give the impression that they had been dispatched. They are not finished with in a number of ways. We are dealing with an important proposal which will be the subject of numerous court challenges and hearings involving much cost.

This section proposes a mandatory minimum sentence of ten years for anyone caught in possession of drugs worth £10,000. This is an extremely dangerous proposal, not just in my opinion, but in that of people who know what is at stake and those trying to address the reality of the Minister's intentions and who see pitfalls if he continues this course of action.

This proposal is a throw-back to the Minister's days in Opposition when zero tolerance was to be the order of the day.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  That is well gone.

Mr. Higgins: Information on Jim Higgins  Zoom on Jim Higgins  (Mayo): I believe Deputy O'Donoghue insisted on being Minister for Justice, Equality and Law Reform when Cabinet choices were being made.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  One would have to have a few drinks taken to ask for this job.

Mr. Higgins: Information on Jim Higgins  Zoom on Jim Higgins  (Mayo): He insisted he was going to give effect to all the promises and hot gospel he preached on this side of the House when he was a zealot and a reformer. We have seen his treatment of refugees. Gone are the days when he clung to idealism. He has become a prisoner of his promises.

This Bill was initiated in 1997. It was to be the Minister's magnum opus– his zero tolerance proposals in legislative form. One week after the Bill was published it was subjected to a root and branch examination. Three or four issues were dissected by people who know about these matters.

Paul O'Mahony is a former official in the Department and a well-known criminologist who is consultant to the Committee on Justice, Equality and Women's Rights on penal sanctions and causes of crime. Writing in The Irish Times one week after the Bill was published, Mr. O'Mahony stated this was an extremely dangerous measure and that there were problems with such “all or nothing” legislation. The cut-off point at which a minimum ten year sentence becomes mandatory is where drugs have a value of £10,000. He pointed out that the valuation was to [790] be decided by the gardaí. However, drugs have a volatile street value which depends on the success and scale of seizures by the gardaí.

Mr. O'Mahony and others have been extremely critical of this proposal. In defending it, the Minister has stated that people have commended it. I challenge him to name any reputable authority which has stated this is a wise measure. Paul O'Mahony has stated the truth. This is an unworkable proposal. I am all for taking tough measures against drug dealing whether by those plying drugs on the streets on a daily basis or by the big drug barons. We would support this measure if we thought it was workable or wise. However, it is neither.

The Minister must consider the situation which pertains in the drug trade. As Mr. O'Mahony pointed out, we are talking about a variable and volatile market; the value of the drugs can change from day to day and from street to street. The market value of drugs depends entirely on supply and demand and there is no definitive measurement by which to gauge their value. Customs and excise officers and gardaí will be hauled into court on a daily basis to verify the value of quantities of drugs. I doubt they are happy with the situation which will be foisted on them by this provision. What degree of consultation occurred with the Garda and members of the national drugs unit in regard to this section?

I wholeheartedly concur with Deputy Howlin's commendations on the tremendous work being carried out by the drugs unit and I share the Minister's determination to deal with the problem. However, dealing with it by introducing a provision which is manifestly vulnerable in terms of its susceptibility to legal challenge is unwise and undermines what the Minister is trying to achieve. The front line people, namely the customs and excise officers and others involved in drug hauls, will be dragged into court and questioned by solicitors as to how they can prove that the value of a quantity of drugs is in excess of £10,000. That is not feasible.

We must also consider the argument about the differentiation between soft and hard drugs. I am opposed to all drugs and do not subscribe to the theory that we should be more lax and lenient in regard to soft drugs, which have properly been described as gateway drugs. However, there is a vast difference between the potential damage of £10,000 of soft drugs as opposed to £10,000 of hard ones.

The Minister is rigorously pursuing an idea he came up with in Opposition. We would forgive him if he were to decide to debunk this proposal. A good solicitor, probably one paid for by the State at the expense of the taxpayer, will be able to find loopholes in this provision through which a coach and four could be driven. For example, how will the authorities differentiate between drugs in terms of purity? Are we talking about drugs before or after they have been doctored, diluted or processed? Does the £10,000 value relate to the time at which the drug is possessed [791] or the time at which a case comes to court? I would like to know what consultation occurred with customs and excise officers, the Garda, the drug squad and the Assistant Commissioner in charge of the national drugs unit to ascertain whether they subscribe to the view that the proposed measure is a wise and feasible one.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  I agree with the case made by Deputy Higgins. This section of the Bill is bad politics rather than good law. I can understand why the Minister was gung ho in Opposition, promising to do “the devil an all” but this measure will create a nightmare for the very authorities we need to support in the battle against the drugs scourge. How can an officer of the State make a determination knowing that if he decides a certain haul is worth £9,000, a one year sentence will be imposed but that a mandatory ten year sentence will be imposed if he decides it is worth £10,000? The Minister will place the responsibility for making such an arbitrary decision on officers of the State and, ultimately, on a judge. How will it look if the testimony of such law officers is rejected by the courts?

The Minister referred to other instances where mandatory sentences are imposed. He mentioned capital murder and murder. There is no doubt or opinion involved in murder. In such instances, one is not determining something's value or imposing a notional figure on it. There are so many imponderables in this section, for example whether drugs are adulterated or whether demand for them is high or low, that it will be an obvious source of dispute. There was a flood of heroin in Dublin at one point and it was cheaply available on the streets. Will a mandatory ten year sentence be imposed on someone in possession of a suitcase full of drugs when the price is high due to market scarcity but not when the price is low due to a plentiful supply? Good law cannot be administered in that fashion.

I reject the point by the Minister, which was echoed to a degree by Deputy Higgins, that we must adopt the view that all drugs are equally bad. That is not the case. Heroin is an appalling killer. Crack cocaine, which is now appearing on our streets, is also a deadly killer. Other drugs may be undesirable but they are not instant killers. We must make some degree of differentiation between hard and soft drugs if we are to show our absolute determination to rid ourselves of all drugs, killer ones in particular. That is the norm in most western jurisdictions and it should appear in our law also.

The arguments of able advocates who preceded me fell on deaf ears. I had hoped that the Minister would no longer feel he had to prove his zero tolerant image after two years' experience in office. I hoped he would listen in a more reasoned way today to arguments made on this side of the House than when the Bill was introduced some time ago.

[792] Amendment No. 7 in my name would confer a discretion on the Minister to draw a distinction between hard and soft drugs. I am proposing the insertion of the following subsection:

“(3C) Subsection (3B) of this section shall apply only to such categories of controlled drug as are prescribed for the purposes of that subsection by regulations made by the Minister under this section.”.

If my argument falls on deaf ears, the Minister can include all categories of controlled drugs but the amendment would give him the opportunity for further reflection or to alter the categories at some future date. If the Minister accepts the amendment, it will not necessarily change the course of his current intent. It will just give him the flexibility to reflect upon it.

I ask him to consider the amendments in a spirit of reasoning and in an effort to meet in some way the concerns of this side of the House. The Opposition parties have, in clear and coherent terms, argued that there is some merit in the amendments. Acceptance of the amendment will in no way dilute what the Minister intends to do, if that is his purpose, but will give him the flexibility when the regulations are being drawn up or at some future date to revisit the issue if he so wishes without having to return to the House with primary statute law. I urge the Minister to accept the logic of this argument and to provide such flexibility for him and successors in office.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I cannot accept these amendments. I appreciate the thinking behind them, but do not believe they are desirable or necessary. The issue essentially relates to the ingredients of the offence created by section 4. The Bill provides that any person trafficking in drugs with a value of £10,000 or more will be guilty of a new offence and liable to imprisonment for a minimum of ten years. Amendment No. 7 would require the Minister to make regulations specifying the controlled drugs to which the new sentencing regime would in effect apply. In other words, it proposes the making of a distinction between so-called hard and soft drugs.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  If the Minister so wishes.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  The amendments in the name of Deputy Higgins take a different approach. Essentially, he wants to define the offence by reference to specified quantities of drugs rather than to monetary value. These amendments, together with further proposed amendments dealing with the nature of the sentence to be imposed, would have the effect of watering down substantially the provisions of the Bill and, therefore, I cannot accept them.

I wish to deal with the issue of making a distinction between soft and hard drugs. The implications of such a distinction would be so far-reaching that any decision should be taken by the Legislature in primary legislation rather than [793] being left to the Minister to deal with by way of regulation. Indeed, I have some doubts as to whether this delegation of powers to a Minister would be constitutional. I know the Minister for Health and Children has power under the misuse of drugs legislation to specify controlled drugs by regulation, but what is at issue here is somewhat different. The mandatory provisions should apply to all controlled drugs and in these circumstances I cannot support the amendment.

I have some sympathy with the thinking behind the amendments to the extent that there is no doubt that the availability of heroin and the activities surrounding such availability represent the worst aspect of the drugs problem. In bringing forward the legislation I gave a great deal of thought to whether some distinction might be made in relation to various types of drugs. However, for reasons I will outline, I came to the firm conclusion that such a distinction would not be appropriate.

The provision in relation to mandatory sentences is geared primarily towards those trading in illegal drugs as part of an organised criminal enterprise. We are not talking, for example, about a person who purchases enough cannabis for himself or herself and a friend and then sells it on to a friend. We are talking about someone involved in the possession for supply of illegal drugs to the value of £10,000 or more. In other words, by definition we are dealing with someone who is playing a very substantial part in the supply of illegal drugs.

The nature of the organised drugs trade with which we are dealing is that many of the people involved trade in both hard and soft drugs as part of a ruthless criminal conspiracy which has wreaked havoc in many of our communities. We must bear in mind that the activities of these gangs are not confined simply to supplying drugs. Part and parcel of their activities have involved murder and intimidation. In such circumstances it seems proper that a person whose activities are a mainstay of such a criminal enterprise should face a mandatory sentence in relation to the possession for supply of drugs to the value of £10,000 or more, irrespective of the type of drug involved.

Even if these were not very valid considerations, we would enter a quagmire in trying to make distinctions in the legislation on the basis of the type of drugs at issue. Is it being suggested seriously that a person found with ecstasy tablets to the value of £10,000 to supply to school children should not face the mandatory sentence provided for in the Bill simply on the basis that ecstasy might not be regarded as being as harmful as heroin?

We should not lose sight of the fact that the provisions of the legislation will not apply retrospectively. In other words, when the legislation is enacted it will be clear to everybody in advance of deciding to traffic in drugs to the value of £10,000 or more that a mandatory penalty will apply. It is their own fault and their own look-out if people traffic in light of this penalty.

[794] In the light of these considerations it was decided that the best approach in terms of mandatory penalties was to define the offence by reference to the value of the drugs involved. I emphasise again that nobody involved in the supply of drugs to the value of £10,000 or more is anything other than a substantial player in the organised trade in illegal drugs. Of course I accept that a distinction must be made between a person involved in the supply of cannabis to the value of £10,000 and a person involved in the supply of heroin with a value of £1 million. However, the best way to make that distinction is not through removing the mandatory ten year penalty in the former case, but rather providing for even heavier penalties in the latter, something being provided for in law. At present, a person convicted of a drug trafficking offence can receive a sentence up to life in prison. This will remain the position under the new legislation. In this way a court will be able to mark the gravity of the offence, subject to specifying a minimum period of imprisonment of ten years.

I have no difficulty accepting that from time to time the threshold of £10,000 will have to be reviewed. However, it is clear in the foreseeable future that £10,000 will represent a very considerable sum of money. On the passing of the legislation it will be important to send a clear message to those tempted to engage in drug trafficking that new mandatory penalties will apply where the value of the drugs is £10,000 or more. It is essential that this information becomes widely known both in and outside the jurisdiction and I will do everything I can to ensure this is the case.

I am not saying the figure of £10,000 is set in stone forever. When it becomes clear that there is a case for changing it that can be done. Given the debate generated on the issue I believe that any change in the monetary value set out in the Bill should be by way of primary legislation following a full debate in the Oireachtas. In this context I wish to point out that, in addition to substantial criminal law reform measures which I will introduce, it is intended that criminal justice miscellaneous provisions legislation will be introduced frequently. In the circumstances there will be no shortage of legislative vehicles to change the threshold of £10,000 when it becomes appropriate to do so. This seems to be a much more sensible approach to take.

Deputy Higgins's preferred approach, with which I fundamentally disagree, is that we should specify the quantity of drugs rather than their monetary value. The Bill is aimed at those who profit from drug trafficking and it seems that the most relevant criterion in this context is the monetary value of the drugs involved, not their quantity. I believe it would be counterproductive in the fight against the drugs menace to accept any of the amendments.

Deputy Higgins asked who supported the Bill and said he had not heard of anybody supporting it. This Bill was published in draft form prior to the last general election. The political party of [795] which I am a member told the people about it and said it would enact the Bill when returned to office. Whatever about named individuals, the majority of the people support the Bill because they had the opportunity to do so at the ballot box.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  Thirty nine per cent does not constitute a majority.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  Drugs will be valued by reference to the possession factor, in other words, they will be valued at any time they are in the possession of the accused person. I hope that answers the query raised. Section 15A(1)(b) as inserted by section 4 states that a person will be guilty of an offence where:

at any time while the drug or drugs are in the person's possession the market value of the controlled drug or the aggregate of the market values of the controlled drugs, as the case may be, amounts to £10,000 or more.

Regarding the question of it not being possible to determine if the value of a quantity of drugs is more or less than £10,000, I refer the Deputy to the legislation. It provides that opinion evidence will be accepted regarding the market or street value. Arguments have been made that it would not be possible for a court to ascertain whether the drugs were worth £9,000 or £10,000. I do not agree with that. A court would be in a position to do so. Whether the drugs are pure or impure, everything has a value and experts would be able to place a value on them.

The criminal justice system is loaded with checks and balances in any event. The Director of Public Prosecutions brings a case only if he believes the accused will be convicted, and that can only happen if the case can be proved beyond a reasonable doubt. If it is the view of the Director of Public Prosecutions that there is a possibility a court will find that the drugs in question were only worth £9,000 as opposed to £11,000, he will be able to proceed under the Misuse of Drugs Acts which provide penalties of up to life imprisonment for drug dealing.

Deputy Howlin said there was no doubt about murder but that there was about the value of drugs. I would not say there is a doubt about everything in this world, but in every criminal trial ever held in the State, the prosecution was obliged to prove its case beyond a reasonable doubt. It did not matter if it was murder or drug trafficking, the case had to be proved beyond a reasonable doubt. It is not correct to say there is no doubt about murder. It is certain that there is what is known as a corpus delicti, but is not certain that this means there is a crime. It must be proved beyond a reasonable doubt that there is such. In those circumstances, I cannot see the distinction the Deputy seeks to make.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  I will try to explain it again.

[796]Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  Deputy Howlin stated this was bad politics rather than good law. I maintain that good politics is good law. This is good law. Therefore, it is good politics.

On making promises in Opposition, the record of the House will show beyond a reasonable doubt that I did much more than make promises in Opposition. I introduced some of the most innovative legislation in the history of the State on behalf of my party when I was in Opposition.

Regarding zero tolerance, the policy is being implemented. If Deputies do not believe me, all they need do is ask the bricklayers at the various construction sites under my remit.

Mr. Higgins: Information on Jim Higgins  Zoom on Jim Higgins  (Mayo): I am amused when I hear the Minister take credit for his share of the 39 per cent minority Government.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  In Fianna Fáil, 39 per cent constitutes a majority.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  With transfers.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  There will be many of those after this.

Mr. Higgins: Information on Jim Higgins  Zoom on Jim Higgins  (Mayo): What the Minister said was a simplistic soundbite.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I am glad the Deputy approves.

Mr. Higgins: Information on Jim Higgins  Zoom on Jim Higgins  (Mayo): It compounded the hard man image. My amendments do not water down the proposal but give it certainty. They deal not with price, which is variable, but with volume and weight, which can be determined and accurately measured. The Minister said what will happen, apart from the obvious fact that the Bill will be challenged, is that amending legislation will be introduced in future as values increase or decrease. What is worth £10,000 today can vary enormously tomorrow taking into account depreciation or appreciation.

My amendments seek to insert a provision with an air of certainty and definiteness. They seek certainty in terms of amounts in question by suggesting that the Schedule should state the relative amounts to which penalties apply. The Minister said on Second and Committee Stages that this was not possible because I had not built in a Schedule. I am not in a position to do so, but the Minister has the expertise, legislative advice and civil servants, so it should not be difficult to draw up a Schedule stating that a prison term of ten years would apply in respect of possession of a certain volume of cannabis, heroin, etc. That is what is proposed by the amendments. The Minister said there is the option of imposing a sentence of life imprisonment. If so – it was used in the Dutchy Holland case, for example – why is there a need for this unnecessary and dangerous measure in the Bill which is open to challenge?

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  It is good for the image.

[797]Mr. Higgins: Information on Jim Higgins  Zoom on Jim Higgins  (Mayo): It is, but we are dealing not with image but with reality. Rather than acting in a definitive and determined manner, the Minister is introducing a section which will be struck down in court at the first opportunity. The cut-off point is too rigid. There is nothing approximate or average. It is all or nothing. This is dangerous in a trade which is variable, volatile, unregulated, illegal and underground.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  The Minister has ignored the difficulty this will create for law officers, the people we want to support and help. He did not address it in his contribution. Law officers will be valuers for drugs. They will be subject to challenge and undermined in their work. The Minister has no regard for that. Holding drugs estimated at £9,500 might have one consequence while holding those valued at £10,000 carries a mandatory prison sentence of ten years.

The need for this measure has yet to be explained when there is already on the Statute Book the provision for up to life imprisonment for the possession of drugs. I am askance that the Minister has not accepted the difficulty that will be presented to those law officers. He refers to the certainty of murder and of capital murder. In those instances there is no need to prove the degree of “deadness” of the deceased. If foul play is proven in the death of a person it is necessary to deal with the consequence. We are concerned here with making a value judgment on quantities of drugs. For that reason it is a dangerous law.

The purpose of amendment No. 7 in my name is to give the Minister a “think again” clause. Without diluting his intent it allows him the opportunity to revisit this issue if circumstances prove necessary. I again urge him to reconsider.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  Over a protracted period I have already outlined in detail the position on this legislation. If I were to accept what Deputy Howlin says and base the penalty on weight as [798] opposed to value I would achieve no greater certainty.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  I did not propose that.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  Deputy Higgins proposed it if Deputy Howlin did not; there appears to be a meeting of minds between the two Deputies. If the purity of the drugs was in question varied questions would arise regarding a discount and the degree of purity required before the mandatory sentence would be triggered.

The degree of certainty in the Bill outweighs any of the amendments put forward. In accordance with the terms of the legislation, a law officer, a garda or a customs officer will be allowed to appear before a court and give as his view that the street or market value of the drugs is £10,000 or more.

If the DPP does not believe he can put a case which can be established beyond a reasonable doubt he will not be so foolish as to do so. There is also the second safeguard of the court hearing the expert evidence.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  What about market value and current market trends? It would be a nightmare to prove.

Mr. O'Donoghue: Information on John O'Donoghue  Zoom on John O'Donoghue  I have explained the position as best I can.

Mr. Higgins: Information on Jim Higgins  Zoom on Jim Higgins  (Mayo): We are not motivated in trying to get the better of the Minister or to do down his proposal. We are trying to put in place a legislative measure that will stand up. The Minister's proposal cannot and will not stand up. Our proposals arise from a genuine concern that at the first available opportunity the provision to incarcerate for ten years a person caught in possession of drugs valued at £10,000 or more will be successfully challenged in open court. This measure is superfluous and dangerous. It is patently challengable and will be challenged at the first available opportunity.

Question put: “That the words and figure proposed to be deleted stand.”

Ahern, Bertie.
Ahern, Dermot.
Ahern, Michael.
Ahern, Noel.
Ardagh, Seán.
Aylward, Liam.
Blaney, Harry.
Brady, Johnny.
Brady, Martin.
Brennan, Matt.
Brennan, Séamus.
Browne, John (Wexford).
Callely, Ivor.
Carey, Pat.
Collins, Michael.
Cooper-Flynn, Beverley.
Coughlan, Mary.
Cowen, Brian.
Cullen, Martin.
Daly, Brendan.
de Valera, Síle.
Dempsey, Noel.
Dennehy, John.
Doherty, Seán.
Ellis, John.
Fahey, Frank.
Fleming, Seán.
Flood, Chris.
Foley, Denis.
Hanafin, Mary.
Harney, Mary.
Haughey, Seán.
Healy-Rae, Jackie.
Jacob, Joe.
Keaveney, Cecilia.
Kelleher, Billy.
Kenneally, Brendan. Killeen, Tony.[799]

Kirk, Séamus.
Kitt, Michael.
Kitt, Tom.
Lawlor, Liam.
Lenihan, Brian.
Lenihan, Conor.
McCreevy, Charlie.
McDaid, James.
McGennis, Marian.
Martin, Micheál.
Molloy, Robert.
Moloney, John.
Moynihan, Donal.
Moynihan, Michael.
Ó Cuív, Éamon.
O'Dea, Willie.
[800] O'Donoghue, John.
O'Flynn, Noel.
O'Hanlon, Rory.
O'Keeffe, Batt.
O'Keeffe, Ned.
O'Malley, Desmond.
Roche, Dick.
Ryan, Eoin.
Smith, Brendan.
Smith, Michael.
Treacy, Noel.
Wade, Eddie.
Wallace, Dan.
Wallace, Mary.
Walsh, Joe.
Wright, G. V.

Allen, Bernard.
Barnes, Monica.
Barrett, Seán.
Belton, Louis.
Boylan, Andrew.
Bradford, Paul.
Broughan, Thomas.
Browne, John (Carlow-Kilkenny).
Bruton, John.
Bruton, Richard.
Burke, Liam.
Burke, Ulick.
Carey, Donal.
Clune, Deirdre.
Coveney, Simon.
Crawford, Seymour.
Creed, Michael.
Currie, Austin.
D'Arcy, Michael.
De Rossa, Proinsias.
Deasy, Austin.
Durkan, Bernard.
Farrelly, John.
Finucane, Michael.
Fitzgerald, Frances.
Flanagan, Charles.
Gilmore, Éamon.
Hayes, Brian.
Higgins, Jim.
Higgins, Joe.
Higgins, Michael.
Hogan, Philip.
Howlin, Brendan.
Kenny, Enda.
McCormack, Pádraic.
McGahon, Brendan.
McGinley, Dinny.
McGrath, Paul.
McManus, Liz.
Mitchell, Jim.
Mitchell, Olivia.
Moynihan-Cronin, Breeda.
Naughten, Denis.
Neville, Dan.
Noonan, Michael.
O'Keeffe, Jim.
O'Shea, Brian.
O'Sullivan, Jan.
Owen, Nora.
Perry, John.
Rabbitte, Pat.
Reynolds, Gerard.
Ring, Michael.
Ryan, Seán.
Sargent, Trevor.
Sheehan, Patrick.
Shortall, Róisín.
Stagg, Emmet.
Stanton, David.
Timmins, Billy.
Wall, Jack.
Yates, Ivan.

Question declared carried.

Amendment declared lost.

Amendments Nos. 3 to 5, inclusive, not moved.

An Ceann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  Amendments Nos. 6 and 8 are related, No. 9 is an alternative to No. 8 and all may be discussed together.

Mr. Higgins: Information on Jim Higgins  Zoom on Jim Higgins  (Mayo): I move amendment No. 6:

In page 7, lines 44 to 46, to delete “as the minimum period of imprisonment to be served by that person a period of not less than 10 years imprisonment” and substitute “the minimum period of imprisonment to be served by that person”.

This amendment relates to the insertion in the Bill of a clause which does not give any discretion to the Judiciary. It is all or nothing – ten years. We had a long debate on the Judiciary yesterday and on two previous occasions. In underpinning our arguments as regards the Sheedy case, we said the Judiciary, by and large, do an extremely good job. This measure, which effectively ties its hands completely is unwise and too restrictive. It is a slight on the Judiciary to limit its powers to this extent and to give no discretion to a judge or jury. Nobody can predict the circumstances which can transpire during a case.

Last week there was another controversy as regards inconsistent sentencing policy and there have been glaring inconsistencies in the manner in which the bench has dispensed justice. As regards this issue, there should be a textbook setting down some non-statutory guidelines. In terms of last week's controversy which became this week's reality with the resignation of two [801] judges and a senior court official and the public perception of the performance of the Judiciary and the manner in which it looks at the people before it in terms of their social class, it might be worthwhile to make two articles which appeared in newspapers last weekend, written by Gene Kerrigan and Fintan O'Toole respectively, mandatory reading for judges. They set in stark perspective the way the public see the manner in which justice is dispensed by different courts to different people at different times, depending on their social standing.

However, having questioned glaringly inconsistent sentencing in terms of the way judges view the gravity of offences, it is unwise to introduce a stipulation whereby judges hands are tied and they have no discretion or cognisance as to what may develop in arguments presented by defence counsel. As the Minister knows, during court proceedings a substantial amount of relevant material is introduced which may have considerable influence in mitigating what initially appeared to be a serious offence.

Mr. Howlin: Information on Brendan Howlin  Zoom on Brendan Howlin  I support the thrust of Deputy Higgins' argument. I am opposed to mandatory sentences. The report of the Law Reform Commission, the body we entrust to advise in the most deliberative way on legal reforms, opposed mandatory sentences and advised that they should be abolished. Notwithstanding that, the Minister is proposing to enact legislation which runs counter to that advice. This is because he made a commitment before the last general election to establish his credentials as the hard man of crime, from which he cannot extricate himself. This is more to do with bad politics than good law.

My amendment is a small effort to make the provision more just. The section, as drafted by the Minister reads:

Subsection (3B) of this section shall not apply where the court is satisfied that there are exceptional and specific circumstances relating to the offence.

My amendment gives the Minister discretion to draw a distinction by the deletion of “exceptional and”. Specific circumstances would remain, relating to the offence or the person convicted of it, that would make the sentence of not less than ten years imprisonment unjust. This would make the sentencing policy slightly more rational. The section is too limited as currently drafted and any injustice should be avoided as far as is possible. The extra degree of flexibility which would be provided to the courts if “exceptional and” were deleted would add in some small measure to making the mandatory ten years more rational. The judge would be entitled to take account of any specific circumstance relating to the offence or the person convicted of it that might make a ten year sentence unjust.

I am concerned that the Minister is not listening to the arguments put forward on this side of [802] the House, which was confirmed when he began to read the answer to this series of amendments in response to the last one. I know Ministers must have prepared answers and they go through their thoughts on legislation with their officials. I hope the Minister will genuinely and openly listen to the arguments put forward on this side of the House and accept the modification of the tone of his proposals so we can reach a broader agreement on a rational conclusion.

My view on mandatory sentencing is clear. The extra discretion my proposed amendment gives to the court and the flexibility which the Law Reform Commission sought for the court to make such determinations should be reflected upon by the Minister and, I hope, accepted.

Mr. Higgins: Information on Joe Higgins  Zoom on Joe Higgins  (Dublin West): The Minister, in insisting on life imprisonment of a minimum of ten years for possession of a certain amount of prescribed drugs, irrespective of the kind of drug, is being irresponsible in the extreme. I would like the Minister to respond to some specific points I have not heard raised as yet on Report Stage. One of the main dangers of this is that it is sending out a message to young people that there is no difference between soft drugs which happen to be illegal and hard drugs which happen to be illegal. It is extremely serious that the Government in persisting with this line would risk creating that impression. There are problems associated with almost all drugs, legal and illegal. If coffee is taken to excess it can be damaging because of its caffeine content, although not as greatly damaging as nicotine. There is a great difference between cannabis and heroin in terms of the damage they do to individual users and the social consequences of their use.

The Minister should know, as I do from my experience as a public representative, that heroin ravages individuals and communities. It destroys youths, their families and their communities. In many cases the nightmare of heroin addiction imposes a regime of crime, violence, hold ups, etc. in the community, which is an entirely different scenario to the effects of cannabis, for example. The danger is that people who are not very well informed, particularly young people, will take from the Minister's message that because all drugs are being treated the same in terms of these penalties, there is no difference between them.

Young people who are aware of the effects of different drugs and social issues regard the Minister's approach as smacking of monumental hypocrisy. It is time for a public debate on the question of which drugs should be illegal, how drugs should be handled etc. Alcohol and nicotine are greatly destructive legal drugs. Thousands die each year in this country from their effects and further thousands end up extremely ill in hospital and take up a significant proportion of the national health budget. On any weekend night in any city or town after the legalised drug dens, that is, the pubs, are closed one sees the effects of excessive taking of alcohol – fights, [803] assaults, murder, manslaughter and there are also the unseen violent assaults in the home by intoxicated males on women and children, in particular. The Government continues to allow this drug to be advertised and glamorised in prominent locations by the manufacturers with their big advertising budgets.

The Minister is talking about enshrining this hypocrisy in legislation. Young people see this as hypocrisy. They see some of the main political parties receiving substantial donations from the drug lobby, i.e. those who manufacture and sell alcohol and cigarettes. They see Deputies and Senators who own legalised drug dens being lionised by their parties and promoted. This is a very dangerous substance. Young people and others who prefer to use cannabis rather than alcohol see the drug of their choice as having a tiny fraction of the dangerous effects and repercussions of alcohol. However, the Minister is insisting to the House that cannabis should be treated the same as heroin – that someone caught with £10,000 worth of cannabis should be sentenced to ten years imprisonment.

I am not in favour of the prohibition of alcohol or cigarettes. Prohibition does not work. However, I am in favour of public debate and legislation which would resolve the contradictions and hypocrisies of the attitude of the State, the Government and political parties to the question of legal and illegal drugs.

We must look at this from the point of view of the gangsters who smuggle drugs. The Minister referred to the people who would have £10,000 worth of heroin or cannabis. What lessons will they draw from this? Cannabis is far bulkier than heroin. It is far easier to conceal illegally imported heroin than cannabis. Therefore, this legislation provides an incentive for gangsters to import more heroin than cannabis because an amount of heroin has a far higher value than the same amount of cannabis, leading to far higher dirty profits. This will result in increased pressure for young people to become addicted and increased destructiveness in society.

The Minister boasted that he put these proposals before the Irish people who endorsed them. That is not really how it works in general elections. Two senior Ministers sit beside the Minister for Justice, Equality and Law Reform – the Minister for Agriculture and Food and the Minister for the Environment and Local Government – and, before the election, they gave the most solemn commitments and warnings about the danger of genetically modified food. However, since they were elected, they have not stopped running in the opposite direction. They changed their minds, unfortunately for the wrong reasons in that case. Will this Minister change his mind, at this eleventh hour, for the right reasons?

Mr. Roche: Information on Dick Roche  Zoom on Dick Roche  Deputy Joe Higgins has well illustrated, as he often does in his own endearing fashion, how an argument which is grounded in a [804] degree of logic can be carried to the depths of illogicality and destroy the very logic he tries to put before the House. It is illogical to compare an ordinary, decent publican with the operator of an opium den and it does not do any justice to the arguments about minimum sentencing.

This is a very serious issue and the civil rights implications are not lost on this side of the House. However, as the Acting Chairman knows, we face a mounting crisis in this area, not just in the cities but also in towns and villages. It is important, notwithstanding the fact that I have always had a difficulty with the concept of mandatory sentencing, to send out a clear message, which is what is being done.

Deputy Joe Higgins's final and correct point was that there is a significant difference, in terms of bulk, between cannabis and heroin. To reach the threshold figure for cannabis, one must have a very significant supply in one's possession, which means that one either has a very significant problem or is trading in cannabis.

The Minister is operating in a way which makes it crystal clear that the occasional inconsistencies and eccentricities of judgments will not cause wrong messages to be sent out. He is suggesting that the Oireachtas would set out in this legislation a measure of our revulsion at what has been happening. I would have no problem with seeing people involved in the holding of any of these substances at that level given a serious mandatory sentence.

As I said, over the years I have had a sense of personal unease with mandatory sentencing. Deputy Howlin expressed that sense very well, although I do not want to take from the contribution of Deputy Jim Higgins, for which I was not present and who, I am sure, was equally conscious of the civil liberty aspects of this issue. However, no harm would be done in this case.

Debate adjourned.

Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.


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